Mc and HM (No.2) - [2002] FMCAfam 199

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Mc & HM (No. 2)

[2002] FMCAfam 199

FAMILY LAW – Residence – proceeding undefended – mother disappeared after interim hearing – no contact with child.

Applicant:

J W Mc

Respondent:

D G HM

File No:

ZM 8974 of 2002

Delivered on:

17 June 2002

Delivered at:

Melbourne

Hearing Date:

17 June 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Kennedy, via video

Solicitors for the Applicant:

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

No appearance

Counsel for the Child Representative:

Mr Harmon, via video

Solicitors for the Child Representative

ORDERS

IT IS ORDERED

THAT all extant Orders be discharged including the Orders made by the Federal Magistrates’ Court of Australia at H on the 14^th day of February 2002 appointing a Child Representative.
THAT the Father and the Mother have joint responsibility for making decisions about the long term care, welfare and development of the child of the relationship T S S H born on the 9^th day of January 1997.
THAT the Father have sole responsibility for decisions about the day-to-day care, welfare and development of the said child.
THAT the said child live with the Father on a day-to-day basis.
THAT the Mother’s contact with the said child be agreed between the parties.
THAT these proceedings be removed from the Active Pending Cases List maintained by the Court.

IT IS DIRECTED

THAT all Applications filed by the parties be otherwise dismissed.
THAT pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS CERTIFIED

THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules (2001) this matter reasonably required the attendance as Counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 8974 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

This matter before me is a final hearing of a residence case between the father and the mother in relation to their child T S S H born 9 January 1997. T is five years old. The parties are D G HM and J W Mc who are the mother and father respectively. The matter is proceeding before me today on an undefended and essentially an ex parte basis. I should indicate how that came about. I made interim orders in this matter at H on 14 February this year during the H circuit. The reasons for my decision have been transcribed and made available.
On that occasion I made an order that until further order the applicant father have the sole responsibility for the day-to-day care, welfare and development of T and that T live with the applicant father. I made orders for contact which were to be each alternate weekend and for the first half of all term holidays. The changeover point was to be at the McDonald's Family Restaurant on the Western Highway, Horsham. The father has been living with T in H and the mother at the time of the interim hearing was living in Rainbow, which is a journey of about three hours from H.
Although in the interim proceedings I was unable to make findings of fact on disputed matters, the material before me did enable me to come to certain findings about the parties. Certainly at that time I took the view that it was in T's interests, for the reasons set out in the judgment, that she should continue to live with her father. I was concerned about the mother's lack of proposals and lack of any stable arrangements which would promote T's interests. For example, in paragraph 43 of the reasons for judgment I said that:
There are no proposals for her for T's schooling, no indication of whether there is a school in town which she could attend, whether she would have to travel elsewhere, none of the normal sorts of arrangements that one would expect to see when considering what has to be determined as being the best interests of a child. The number of different locations the mother has lived at and the places in which she has lived give some concern that her present address will also be a fairly transitory one.
I made orders on that occasion for a separate representative to be appointed to represent T and a report to be prepared by a counsellor for the hearing. Mr Harmon appears on behalf of the separate representative and a family report was prepared on 14 May 2002 by Ms Silvestro of the Melbourne Registry of the Family Court. The father has filed an Affidavit sworn on 31 May 2002 bringing matters up to date. In that Affidavit he says that given that the orders made by me provided for interim arrangements for contact with the mother to commence on 22 February, he travelled with T from H to Horsham on 22 February and arrived at 5 pm to facilitate the mother's contact with the child.
He went to the trouble of telephoning the manager at McDonald's restaurant to tell him that he was in attendance for the purpose of the changeover. He waited from 5 pm to 6 pm, but the respondent did not arrive nor make any contact with himself or the restaurant as to the reasons for her non-attendance. Because of his concern about T's disappointment and the problem about travelling and the expense of it, he arranged for his solicitors to write to the solicitors for the mother as to the future conduct of contact.
He requested that the contact changeover thereafter take place at McDonald's restaurant H rather than Horsham. There was no response to his letter. Although his solicitors sent a follow-up letter on 7 March 2002, no response was received. Since that time he has continued to live with T at 5 H C, H which is where he was living when the interim orders were made and he has maintained the same telephone number at that residence and has maintained his current employment. All of this information is known to the respondent mother. At not stage since has the mother telephoned him to make any arrangements for contact or to have any contact at all with T.
The father proposes that he continues to live in his present accommodation and that he supervises T when he is not at work and his mother assists him when he is at work. T is presently in her prep year at George Street Primary School. All of these matters were in place when I made the interim orders and I was satisfied at that time that the arrangements for T were in her best interests. Ms Silvestro has prepared a report, but the mother did not attend any appointments, nor have any contact with her at all. I should say that in the meantime the mother's solicitors have filed a notice that they are no longer acting on her behalf.
In short, it appears that the mother has chosen to disappear and no one has any idea of her whereabouts. This behaviour is not inconsistent with the way in which she has behaved in the past. Although Ms Silvestro was not able to interview the mother, she interviewed the father and observed T with her father and interviewed T. She noted that T has a close and warm relationship with her father, reported being happy with her father and enjoying doing things with him and her grandmother, although she misses her mother.
Ms Silvestro indicated that although she was not able to make a comprehensive assessment of T's residency options because the mother did not partake in the procedure, and she indicated that the only option for T is to remain with her father, she concluded that this seems to be an appropriate option as there is nothing to suggest that she is not being adequately cared for by Mr Mc and his mother. She noted that T seemed happy and secure with her father and there is obvious affection between them.
She also noted that T has an attachment to her half-brother Ben with whom she has lived for some significant periods. He resides in H with his father and they see each other regularly. She noted that Ben is one of the few constants and connections in her life and it is important that she continues to see him. Having regard to the family report, the evidence before me from the father and the facts which I have already set out in my reasons for judgment on 14 February, I am satisfied that it is in the best interests of T to continue to remain with her father and I propose to make the orders which have been proposed by Mr Kennedy for the father and the child representative.
So in the matter of Mc & HM there will be orders in accordance with the minutes proposed by the child representative and the father which will be marked “Exhibit A” and placed on the court file. There will be a further order pursuant to section 65DA of the Family Law Act setting out the responsibilities and obligations created by the orders. There will be a direction that the matter otherwise be removed from the pending cases list.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 10 July 2002