Michaels and Farber and Anor

[2012] FamCA 779

FAMILY COURT OF AUSTRALIA

MICHAELS & FARBER AND ANOR [2012] FamCA 779

FAMILY LAW – CHILDREN – Parenting orders by consent between the first respondent and the Independent Children’s Lawyer and unopposed by the applicant and the second respondent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Michaels

FIRST RESPONDENT: Ms Farber

SECOND RESPONDENT: Mr O’Dwight

INDEPENDENT CHILDREN’S LAWYER: Jean Forster

FILE NUMBER: MLC 10936 of 2009

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: MELBOURNE

JUDGMENT OF: Dessau J

HEARING DATE: 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE FIRST RESPONDENT: Mr S. Kocaj

SOLICITOR FOR THE FIRST

RESPONDENT:

HEP Steel

COUNSEL FOR THE SECOND

RESPONDENT:

N/A

SOLICITOR FOR THE SECOND

RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms J. Forster

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Forster & Associates

Orders

IT IS ORDERED by consent between the first respondent and the ICL and unopposed by the applicant and the second respondent

1. That all previous parenting orders be discharged.

2. That the child D born … September 2005 shall live with the mother, Ms Farber.

3. That the mother shall have sole parental responsibility for the child.

4. That the applicant Ms Michaels is not permitted to spend any time with the child D born … September 2005.

5. That otherwise all existing applications shall be and are hereby dismissed.

6. That the ICL’s appointment is discharged.

7. That Ms Farber’s solicitor shall server a copy of this order on Ms Michaels by ordinary pre-paid post to Property F.

8. That the short Reasons for Judgment given this day shall be transcribed and retained on the Court file. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Michaels & Farber 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 MELBOURNE

FILE NUMBER: MLC 10936 of 2009

Ms Michaels

Applicant

And

Ms Farber

First Respondent

Mr O’Dwight

Second Respondent

REASONS FOR JUDGMENT

1. This case relates to young D who is heading towards seven years old (“the child”).  He lives with his mother, Ms Farber, the first-named respondent in this case. 

2. In the past, the child lived also with Ms Farber’s former partner, Ms Michaels, who is the applicant. 

3. His biological father, Mr O’Dwight, although served in the proceedings initially, has taken no part at all. 

4. The case is before me today on the basis that Ms Michaels, the applicant, has not participated for some time.  She was legally represented.  Her solicitor has filed a Notice of Ceasing to Act. 

5. Registrar Field held a telephone mention on 27 June 2012.  There was no appearance by Ms Michaels.  Registrar Field adjourned the matter to me today, and made directions for Ms Farber to file any amended response, to serve that on the applicant, and to serve a copy of that order on the applicant.  What was spelt out clearly in the Registrar’s order was that if Ms Michaels failed to comply with the direction made to appear today, then Ms Farber had liberty to apply to proceed on an unopposed basis. 

6. Both Ms Farber, through her legal representative, and the Independent Children's Lawyer have asked that the matter proceed today, unopposed.  I am satisfied that service has been properly effected.  There is an affidavit of service in relation to the response, and Mr Kocaj for Ms Farber has given oral evidence today of service of the Registrar’s order.

7. I am satisfied too that the Minute of Orders prepared on behalf of Ms Farber and the ICL, seeking orders that all previous parenting orders be discharged, that the child live with Ms Farber, that she have sole responsibility for him, and that Ms Michaels is not permitted to spend any time with him, are orders that are definitely in the child’s best interests.  I have the benefit of a very lengthy and thoughtful Family Report that dates back a little, to December last year.

8. It is clear from that report that the primary view of the Family Report writer was that these orders would be the appropriate orders.  The report writer did offer an alternative, whereby Ms Michaels would have the opportunity to prove that she could undertake a sustained alcohol counselling course with the hope of a slow reintroduction to the child, but that has clearly not occurred, and the only option that remains is the option set out in these orders.

9. Although it is customary to go through each item under s 60CC of the Family Law Act, in making a determination of a child’s best interests, given the unopposed nature and the very fulsome information before me, in terms of the evidence of the first day LAT, Ms Farber’s recent affidavit and the evidence she has just given to me today as to the child’s progress in her care, and the Family Report, I am satisfied that the particularised aspects of s 60CC do not need to be dealt with in further detail in this instance.

10. It is very important for the child that he have certainty.  It is very important for the child that he be permitted to continue to live with the person who has been, of the two women, the one better able to protect him.  And it’s very important that he, at his point, is not exposed to more conflict between the two women, which is why Ms Farber needs to have the sole parental decision-making ability.  It is very important that he is not put in a frightening and difficult position of Ms Michales believing or asserting that she has any legal rights to spend time with him.

11. And it is important for Ms Farber to have the courage and the resources to understand that she needs to enforce that in his best interests. 

12. So, accordingly, I shall make orders in accordance with the Minutes of Unopposed Orders dated today’s date.  I am going to add just a couple of orders. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 26 July 2012.

Associate:  Alison Power

Date:  26 July 2012