Matheson and Beveridge

[2017] FCCA 2615

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATHESON & BEVERIDGE [2017] FCCA 2615

Catchwords:
FAMILY LAW – Undefended parenting hearing – 3 year old child – father shows disregard for child’s best interests.

Applicant: MS MATHESON

Respondent: MR BEVERIDGE

File Number: MLC 4457 of 2016

Judgment of: Judge Harland

Hearing date: 25 September 2017

Date of Last Submission: 25 September 2017

Delivered at: Warrnambool

Delivered on: 25 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Healey

Solicitors for the Applicant: Victoria Legal Aid

The Respondent: No appearance

ORDERS

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the child X born (omitted) 2014 (“the child”).

3. The child live with the mother.

4. The father spend time with the child in (omitted) during the day only at times that are deemed fit by the mother, subject to the father providing an undertaking to the mother or her lawyer that he will return the child to the mother’s care.

NOTING

1. The father is at liberty to make an application should he seek any other orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WARRNAMBOOL

MLC 4457 of 2016

MS MATHESON

Applicant

And

MR BEVERIDGE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter comes before me today with a very concerning history with respect to the father who has not attended court and who has not filed any documents.  On the material before me it is apparent that the father has shown a disregard and lack of insight into the needs of his daughter as well as a complete disregard for the mother and, indeed, X’s older half-siblings who are 10 and 8. 

3. It is extraordinary that the father has withheld X on three occasions in less than two years. On the first occasion he withheld X for some four months.  For a three year old child to be away from her primary attachment figure, her siblings, and her familiar environment for that period of time would have been distressing and unsettling for her.  Despite this the mother has continued to make X available to spend time with her father in (omitted) where he is living. 

4. The father again showed complete disregard for the best interests of his daughter by withholding X again. The mother had to seek a recovery order from the Court. That order was made on 27 October 2016. 

5. The matter then came before Judge Curtain on 3 November 2016 where he listed it in the February 2017 sittings in Warrnambool.  On that occasion I made interim parentings orders that provided for the father to spend time with X in (omitted) during school holidays.  The father did not attend court.

6. The father was given opportunity to file material and an order was made if he failed to provide that material it may proceed on an undefended basis on the next occasion.  When it next came before the Court before Judge Williams in May 2015 in Warrnambool she directed that the mother file a minute of precise orders sought and an affidavit in support.

7. Despite being given numerous opportunities, the father has not filed a single document, nor has he appeared in court.  The mother deposes in her affidavit material that the father has been putting pressure on her to withdraw the proceedings. 

8. Last week the mother had to file an amended initiating application and further affidavit last week due to the father yet again withholding X. 

9. On this occasion the mother was able to secure X’s return by travelling to (omitted) at great expense to her to retrieve X without needing a further recovery order.  I am satisfied that the father is aware of these proceedings and he is aware of it being in court today. In fact, he has sent abusive texts to the mother’s legal representatives. It seems that the father feels that he is the one who is hard done by, that somehow the mother, the mother’s lawyers, and the system is in some way denying him his rights.

10. X has rights. The father has responsibilities as a parent.  He has failed in those responsibilities.  The only person who is responsible for that is him.  The mother, to her credit, has continued to seek orders that provide for the father to spend significant time with X during school holidays which is really all that is feasible given that he lives in (omitted) and does not work.  As I have indicated during the course of the hearing today - and I will make it very clear for the father’s benefits – the mother is proposing that he have more time with X than I am prepared to make. I am not satisfied that it is in X’s best interests to have anything other than limited day time contact with the father provided that it is in (omitted) with the father providing an undertaking that he will return X to the mother’s care.

11. I am not going to make specific orders for time.  I am going to make it that it be times as agreed to by the mother on such conditions that she deems fit because my concern is that if I set out particular times the father will not abide by those times. The mother would continue to be in a position where she does not know whether or not X is going to spend time with her father and be returned and having to have the uncertainty of having to deal with that.

12. The father has had the opportunity to put his side of the story and has chosen not to do so.  He seems to think that X is a possession that can just be passed between the parents whenever he sees fit and let me make this very clear – these orders are not the orders that the mother sought; these are the orders that I am making today because I am not satisfied that he has shown any responsibility as a parent. 

13. If he wishes to seek other orders then he is at liberty to bring an application, with an affidavit in support, and he can explain his conduct to date, but it is simply not in his daughter’s best interests for there to be uncertainty in her life as to when she is with mum, when she is with dad.  At the moment she is only three.  In a couple of years she will be going to school.  Would the father have X attend different schools in different states as the whim takes him?

14. Apparently the father has proposed that it would be X’s best interests to have a six month equal time arrangement.  That shows an extraordinary lack of insight into X’s developmental needs. 

15. The father amended that proposal to three months on, three months off which again shows an extraordinary lack of insight into the developmental and emotional needs of his daughter.  X needs stability.  Children go to one school, not two schools and not two schools in two different states with two different education systems. 

16. Furthermore, the father seems to completely ignore the fact that she has an important relationship with two siblings who are also in her household who have autism who have a close relationship with her and they are also being affected by this. 

17. In addition, the stress on the mother of having to come to court on multiple occasions seeking the assistance of the court to have her daughter returned to her is of concern because if this continues, this kind of behaviour will have a real impact on the mother’s own psychological and mental wellbeing, which in turn could be detrimental to her parenting capacity and X’s well-being.  So for these reasons I am satisfied that the orders I am making are in X’s best interests. 

18. What I am going to do is I am going to discharge the previous orders.  I am going to order that the mother have sole parental responsibility, that X born (omitted) 2014 (“X”) live with her and that X spend time with her father in (omitted) on such terms and conditions as the mother agrees to and upon the father providing a written undertaking to the mother or her lawyer that he will return X at the end of this time, such time to be day time only. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  31 October 2017