McDougall & Anor and Hoskings (No. 2)

[2013] FamCA 280

FAMILY COURT OF AUSTRALIA

MCDOUGALL AND ANOR & HOSKINGS (NO. 2) [2013] FamCA 280

FAMILY LAW – CHILDREN – final orders – with whom a child lives – where the mother has no intention of opposing the orders sought by the father – consideration of Family Consultant’s report – where the child wishes to remain living with the father – best interests – orders for the child to remain living with the father.

Family Law Act 1975 (Cth) s 60CC

1st APPLICANT: Mr McDougall

2nd APPLICANT: Ms Madison

RESPONDENT: Ms Hoskings

FILE NUMBER: DNC 11 of 2013

DATE DELIVERED: 10 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 10 April 2013

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: n/a

SOLICITOR FOR THE 1ST APPLICANT: In Person

COUNSEL FOR THE 2ND APPLICANT: n/a

SOLICTOR FOR THE 2ND APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The father Mr McDougall have sole parental responsibility for the child  E born on … January 2000.

2. The child E live with the father in Australia.

3. The child spend time with and communicate with the mother at such times and on such conditions as the parents agree in writing PROVIDED THAT the parents take into account the wishes of the child.

4. Each parent keep the other parent informed of any change of residential address, telephone number or email address within fourteen [14] days of any such change.

5. The father notify the mother by email or text communication within seven [7] days of all major decisions made in relation to the child’s living arrangements, education or health.

6. Each parent inform the other in the event of any serious accident, injury or illness suffered by the child and any medical or other treatment for the child related to such accident, injury or illness.

7. Remove all matters from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDougall and Anor & Hoskings (No. 2) 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 DARWIN

FILE NUMBER: DNC 11 of 2013

Mr McDougall and Ms Madison

Applicant

And

Ms Hoskings

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me as a result of proceedings which were commenced in January 2013.  Since then the applicant has served the mother.  I have affidavits of service in relation to the proceedings on file.  I am satisfied that the mother is aware of the proceedings and I am also satisfied that from the material before me it would appear that she has no intention of opposing the orders sought.  I also have the benefit of a Family Consultant’s report dated 27 March 2013 which was prepared and forwarded to the mother at her address which is the address where she has been served and the only address available to the Court.

2. The background to the matter is that the child, E born in January 2000, (“the child”) was for a period of time after the parties separated, living with the mother.  He travelled to Australia from New Zealand to spend time with the father and step-mother and has since remained in the care of the father and step-mother notwithstanding the orders which have been made in New Zealand. 

3. In the father’s affidavit and in the Family Report it is clear that the arrangements which are now in place are arrangements which are in the best interests of the child and in particular are necessary to protect him from harm and to ensure that his clear wishes are given appropriate weight.

4. The Family Report is prepared by Mr B, a Family Consultant in Darwin.  It sets out the background to the proceedings and the issues in dispute.  The information in the report includes an interview with the child who was described as highly credible and genuine in relation to his description of life in his mother’s home.  That, in itself, supports the decision being made to protect the child from any risk of being exposed to abuse or violence. 

5. It is also clear from the Family Consultant’s report that there is a significant and strong wish on the child’s part (which would appear to be formed on an appropriate basis) that he remains living with the father and step-mother.  The recommendations at the conclusion of the report include that the child remain living principally with his father and step-mother in Darwin.  It says:

   It is his ardent request founded on extremely credible reasons.

6. The report then refers to the child having regular telephone contact with his mother and where appropriate, spending time with his mother in New Zealand. 

7. Based upon that Family Report, the other material which is before the Court and the failure of the mother to take any steps to participate in these proceedings I propose to make final orders today which will conclude these proceedings.  In making those final orders it is necessary to give consideration to Part VII of the Family Law Act1975 (Cth) (“the Act”) which requires the Court to consider that the best interests of the child are the paramount consideration. In doing so it is also necessary to consider the primary factors which relate to the risk of abuse to the child and for the child to have the benefit of a meaningful relationship with both of the child’s parents.

8. I take into account those primary factors but also take into account the remaining factors in section 60CC(3) which include any views expressed by the child and any factors such as the child’s maturity and level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.  The nature of the relationship, the attitude of the parents to their responsibilities and their capacity are also significant factors in this matter, all of which make out a very strong basis for final orders to be made.  It is clear that the father and his current partner have the capacity to provide appropriate care for the child and have a very good attitude towards their responsibilities.

9. I am also satisfied, based on the Family Consultant’s report, that the child’s strong wishes are to be taken into account particularly in relation to his age and the background to the matter. 

10. I have provided the father and step-mother with a draft of some proposed orders which I considered would be appropriate.  They have indicated to me this morning that they support those orders being made.  Those orders would provide for the mother to be kept in touch with significant matters concerning the child and for the child to spend time with and communicate with the mother as arranged between the parents provided that the parents take into account the child’s wishes when making those arrangements.

11. For all of those reasons therefore I am satisfied that in this matter the provisions of the Act all support the proposed orders. I make final orders in terms of the minutes this day signed by me.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 April 2013.

Associate: 

Date:  11 April 2013