MATHERS & MATHERS

[2010] FamCA 717

FAMILY COURT OF AUSTRALIA

MATHERS & MATHERS [2010] FamCA 717

FAMILY LAW – CHILDREN – parental responsibility – where the mother was not present at the proceedings – best interests – orders that the father have sole parental responsibility – where the orders were not sought in the applications before the Court – the mother given 28 days leave to apply in relation to the orders made

FAMILY LAW – CHILDREN – final orders by consent – with whom a child spends time – best interests – orders that the children live with the father and spend time with the maternal grandmother

Family Law Act 1975 (Cth) ss 60CC

MRR & GR [2010] HCA 4

APPLICANT: Ms Mathers

RESPONDENT: Mr Mathers

OTHER PARTY: Ms Noble

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 532 of 2007

DATE DELIVERED: 6 August 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 6 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Tindall Gask & Bentley

COUNSEL FOR THE OTHER PARTY: Mr Boehm

SOLICITOR FOR THE OTHER PARTY: Moloney & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

UPON NOTING by way of final orders made by consent of the father and other party and in the absence of the mother:

BY CONSENT IT IS ORDERED THAT

1. The children C born … February 1999 and L born … May 2003 live with the father.

2. The children C and L spend time with the other party (maternal grandmother) as follows:

   (a)from 5.00 pm Friday until 5.00 pm Sunday and occurring each fourth weekend commencing Friday 6 August 2010;

   (b)from 10.00 am until 5.00 pm on Sunday and occurring each fourth Sunday commencing Sunday 22 August 2010;

   (c)at such further and other times as agreed.

3. The Initiating Application of the other party (maternal grandmother) filed on 29 July 2008 is dismissed.

4. The father have sole parental responsibility for the two children C and L subject to the mother having leave to apply to the Court in relation to the final Order for sole parental responsibility within twenty-eight [28] days of service of the Order upon her and that service be effected by the father’s solicitors posting a copy of the sealed Order to the mother at her last known address for service.

5. The appointment of the Independent Children’s Lawyer is discharged two [2] months from today.

6. All matters are removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Mathers & Mathers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:       ADC 532 of 2007

MS MATHERS

Applicant

AND

MR MATHERS

Respondent

AND

MS NOBLE

Other Party

EX-TEMPORE REASONS FOR JUDGMENT

1. I am making those orders by consent of the parties here today, but obviously a default order as far as the mother is concerned, due to her non-attendance.  It is appropriate for me to make a few remarks about the reasons for adopting this course.

2. Firstly, the mother has clearly been given notice that this was the first day of the trial in relation to the children’s issues.  I have taken into account the affidavits that are on file in relation to the preparation of the matter and interim hearings.  In particular I have placed considerable emphasis upon the affidavit of Ms B, the Family Consultant, whose report of 21 June 2010 is before the Court today.  She is on standby and would be available for cross-examination if that were necessary.

3. However, bearing in mind all of the material on the Court file and the history of this matter, I accept the submissions that it is appropriate for this matter to proceed today in the absence of the mother.  In particular I consider it in the best interests of the children and appropriately just and equitable that this matter be resolved today.

4. In making final orders in relation to the children, I have made a specific order for sole parental responsibility to the father, notwithstanding that the original application and the applications before the Court, of which the mother would be aware, did not include that topic.

5. In the unusual circumstances of this case, I have made a final order, but given the mother liberty to apply in relation to sole parental responsibility, only because she has not been on notice that that order was being sought.  I have limited her capacity to bring the matter before the Court to a time of 28 days after service so that the matter is not left in limbo or undecided for any unnecessary period of time.

6. If the mother can then present her evidence in relation to the question of parental responsibility, the matter can be reconsidered.  I make it clear, however, that the Court has made final orders in relation to where the children live and spend time with the grandmother.  Those final orders cannot be the subject of liberty to apply by the mother.

7. When considering the final orders made in relation to the children living with the father, sole parental responsibility and the children spending time with the paternal grandmother, the Court is required to have regard to the best interests of the children as the paramount consideration. For that purpose it is necessary to consider the matters set out in section 60CC.

8. Because the order is for sole parental responsibility, the Court is not required under section 65DAA to consider the material referred to in that section and the criteria referred to in the High Court decision of MRR & GR [2010] HCA 4. In any event, if those matters were to be considered, the presumptions referred to therein and references of reasonable practicality, would indicate that the orders I have made are appropriate in any event.

9. The provisions of section 60CC refer to the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the children from physical or psychological harm. I rely primarily, in considering these matters, on the report of Ms B as recently as June of this year, which raises serious issues about any benefit to the children of having a relationship with the mother, and certainly strongly indicate that the meaningful relationship with the father is promoted by the orders which are made.

10. The mother’s behaviour in the past, her difficulties in relation to criminal activity and drug abuse raise serious questions about both the benefit to the children of having a relationship with her;  (the question being whether it could be meaningful due to the mother’s difficulties) and also makes it appropriate to protect the children from any harm that they might suffer, being exposed to her whilst she has those serious difficulties.

11. The additional considerations, the views of the children and the nature of the relationship between the children and the father and the maternal grandmother also support the orders that are being made.  The willingness and ability of the father to facilitate and encourage a relationship between the children and the mother is shown by the attempts which were made from time to time to encourage that relationship, but which were not successful, due to the inability of the mother to promote and maintain appropriate behaviour on her part.

12. The likely effect of the change in the children’s circumstances is also significant.  The current orders promote the ongoing arrangements which have been of benefit to the children, including living with the father and regularly spending time with the grandmother.

13. The question of the background of the children is covered by the submissions I have heard that the cultural background of the father and grandmother are the same.  There is no difficulty in that criteria being considered.

14. The other matters in relation to the consideration include the family violence, a factor which requires consideration.  The orders which are proposed protect the children and take into account those factors.

15. One of the other factors in section 60CC is whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. Albeit that I have given the mother liberty to apply, that liberty to apply only relates to the question of sole parental responsibility, and I put a time limit on that with a view to encouraging the finalisation of all proceedings in relation to the children.

16. I have not specifically referred to all of the factors in section 60CC, but I believe I have considered those relevant and all of the matters which have been considered in the Family Consultant’s report.

17. I make those final orders which remove all matters from the pending list, subject only to the mother’s leave for liberty to apply within the 28 days of service in relation to sole parental responsibility only.

18. The appointment of the Independent Children’s Lawyer is discharged two months from today.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 August 2010