MCARDLE & GLAETZNER

[2015] FamCA 73

FAMILY COURT OF AUSTRALIA

MCARDLE & GLAETZNER [2015] FamCA 73

FAMILY LAW – PARENTING – Child to live with the Mother – The mother to have sole parental responsibility in respect of all major long-term issues – The father spend no time with the child – The mother is at liberty to remove the child from the Commonwealth of Australia for the purposes of holiday travel

APPLICANT: Mr McArdle

RESPONDENT: Ms Glaetzner

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

FILE NUMBER: SYC 7 of 2008

DATE DELIVERED: 13 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 February 2015

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

Orders

IT IS ORDERED THAT

1. The child B, born … 2006, live with the mother.

2. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the child with such issues to include but not be limited to:

   (a)       the child’s education;

   (b)       the child’s religious and cultural upbringing; and

   (c)       the child’s health.

3. The father spend no time with the child.

4. The mother is at liberty to remove the child from the Commonwealth of Australia for the purposes of holiday travel.

5. A Registrar of the Family Court of Australia is appointed pursuant to s106A of the Family Law Act 1975 (Cth) to sign in lieu of the father any document needed to obtain a passport for the child and any document that may be required to enable the mother to apply for dual citizenship for the child.

6. The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mc Ardle & Glaetzner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7 of 2008

Mr McArdle

Applicant

And

Ms Glaetzner

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The reasons which underpin the making of the orders and my conclusion that they are in the child’s best interests can be shortly stated in circumstances where the father filed a Notice of Discontinuance of the proceeding on 13 May 2014 and has played no part - other than by way of response to emails forwarded to him by the Independent Children’s Lawyer late last year in an attempt to ascertain his position and attitude to any future orders that might be made in relation to the child’s parenting arrangements – since then. 

2. These proceedings have been on foot for a not insignificant time.  They relate, obviously, to the child, who was born on 17 June 2006 and who is currently about eight and a half years of age.

3. The parties commenced their relationship in January 2005, married in 2006 and separated in December that year. The child has always lived with her mother and has spent what may best be described as irregular and sporadic time with her father. Her last interaction, other than during the course of three occasions pursuant to an Order made pursuant to s 65L of the Family Law Act 1975 (Cth) in April last year, was in January 2013 and, then also, in April during the Family Report interview process.

4. It is, I think, telling, as I have already said, that the father filed a Notice of Discontinuance on 3 May 2014 after Orders had been made which afforded to him the opportunity to spend time with the child on a supervised basis.

5. Any suggestion by the father that the mother frustrated that process must be seen in the context of the relatively short period of time between the making of the Order and his decision to file a Notice of Discontinuance.  I should also record that in addition to the attempts made by the Independent Children’s Lawyer to involve the father in the proceedings and to ensure that he had an opportunity properly to be heard in them, the Court contacted the father on 5 August 2014, at which time he informed that he did not wish to participate in the proceedings and understood that orders may be made by default if he continued, as he has, to implement that decision.

6. The Independent Children’s Lawyer and mother both support the vast majority of the Orders that are made today, particularly in relation to the child living with the mother and the mother having sole parental responsibility for major long term issues relating to her.

7. Whilst the Independent Children’s Lawyer advanced an order to the effect that the child spend time and communicate with the father at all times as her parents may agree in writing, I consider that such order was proffered in the hope that there may be opportunity for the child in the future to have some sort of relationship with her father. The evidence before me suggests that this hope is highly unlikely to manifest. 

8. It does not seem to me to be in the child’s best interests, at this time, that there be an open ended arrangement, particularly given her father’s ambivalent attitude towards spending time with her.  As will be obvious from a perusal of the transcript of these proceedings, I have already expressed the view, obvious as I think it is, that in the very unlikely event the child’s parents agree in the future that it is appropriate and beneficial for her to spend time with, or communicate with, her father in some manner, they could agree to and implement the same.  As I have said, that seems, at this stage, to be a highly unlikely event.

9. B has always lived with her mother and her mother, therefore, has discharged the obligations of parenting in relation to her.  The evidence suggests that the father has been at best, ambivalent in his approach to developing and maintaining a relationship with the child. 

10. Whilst it may be that there has been difficulty associated with the child’s interaction with him - arising out of the mother’s anxiety about such interaction, as referred to helpfully by Mr Bunning in the submissions prepared on behalf of the Independent Children’s Lawyer - the father’s most recent decision to discontinue the proceedings is also, I think, a significant indicator of his overall attitude to attempting to ensure that the child has the opportunity to have a meaningful relationship with him.

11. The father’s clear determination not to appear to seek orders and his decision to implement that earlier decision over a significant period of time makes it unnecessary, I consider, to delve too much more deeply into the rationale underpinning a decision that the Orders made today are in the child’s best interests. 

12. It is obviously appropriate and beneficial for her that she have the opportunity to travel outside Australia for the purposes of a holiday with her mother.  No sensible argument could be advanced, nor was it, in opposition to such an order.

13. Given that the mother has an Order for sole parental responsibility, it may be unnecessary for any additional order to be made authorising a Registrar of the Court to sign documents in lieu of the father. 

14. However, I consider that such an order is appropriate and in the child’s best interests in a secondary sense, in that if the mother has difficulty obtaining a passport or obtaining or applying for dual citizenship for the child in the absence of the father’s signature, such order will obviate the requirement for her to attempt to locate and serve him and obtain his consent.  In that way, the interaction between the parties, which it seems to me has been problematic over a long period of time, is brought to an end.  There will no longer be a need for communication by email and/or text, nor will there be a requirement for these parties to communicate or attempt to communicate about what arrangements for any interaction between the child and her father might be thought to be appropriate.  In that way, the anxiety spoken of by Mr Bunning, in his submissions, as experienced by the mother will be alleviated with the obvious positive benefit to the child of having a parent free from such concerns and able to focus entirely upon her parenting.

15. I should also record that the father’s actions in filing the Notice of Discontinuance and failing to appear to seek orders in relation to the child comes against a background of his previous expressions to Ms C, as recorded in a report prepared by her in or around December 2013.  At that time, she recorded in that report that the father’s position was that he would not continue an application for orders for time with the child because she did not wish to spend time with him.  Ms C expressed the view, at that time, that the father knew there was no future pursuing the application and his reliance upon the child’s “wishes” allowed him to execute what she described as a “dignified exit”. 

16. It may well be that the father’s decision to file a Notice of Discontinuance in May 2014 is a further manifestation of his desire to exit, gracefully or otherwise, from the child’s life and any prospect of him playing a role in it into the future. 

17. Whilst Ms D, who prepared the most recent Family Report, after facilitating three periods of time between the child and her father on 5 March 2014, 26 March 2014 and 2 April 2014, respectively, recorded she thought there was some benefit to the child in having an opportunity to spend time with the father, she also clearly records her observations that (understandably), the child expressed uncertainty about spending time with her father and, ultimately, viewed him as a stranger.

18. This could not be surprising, given his absence from her life since the parties’ separation.  Whatever may have been the prospects for the child, in terms of an opportunity to spend time with the father, arising from Ms D’s observations and report, they are now moot, given the father’s decision to discontinue the proceedings. 

19. For the Reasons I have expressed, therefore, I am well persuaded that the Orders made as outlined by me at the commencement of these Reasons are in the child’s best interests and an Order will issue to that effect. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 February 2015.

Associate:                 

Date:    13 February 2015