MILLER & BRASS

[2011] FamCA 208

FAMILY COURT OF AUSTRALIA

MILLER & BRASS [2011] FamCA 208

FAMILY LAW - CHILDREN – interim orders – where the father seeks to spend time with the child – where the father has not spent any time with the child for a significant period of time – best interests – previous orders providing that the father spend time with and communicate with the child be suspended pending final hearing

FAMILY LAW - PRACTICE AND PROCEDURE – where the father has indicated he wishes to discontinue with the proceedings – orders that the proceedings be dismissed and final orders made should the father fail to file further documents in the given time

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Miller

RESPONDENT: Ms Brass

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4695 of 2009

DATE DELIVERED: 16 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J. Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders

1. If the father fails to file further documents within the next fourteen [14] days, then all proceedings will be dismissed and final orders will be made that the mother have sole parental responsibility for the child S and the child live with the mother and the appointment of the Independent Children’s Lawyer will be discharged and all other previous Court orders that relate to the child S discharged.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4695 of 2009

Mr Miller

Applicant

And

Ms Brass

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the adjourned hearing of an application in relation to the father spending time with the child of the relationship.  The dispute concerns S, who was born on … January 2001.  There were proceedings before the Court some time ago and final orders made.  Notwithstanding the previous proceedings, the father has not spent time with the child, S, since December 2009. 

2. There are significant issues raised in relation to the best interests of the child.  I have already dealt with them briefly in ex tempore reasons given in December last year.  The Court now has the benefit of a Family Consultant's report, dated 10 March 2011, which was compiled after the Family Consultant reviewed the material on the Family Court file and observed interaction between the mother, father and child, and various interviews. 

3. The Family Consultant's report is detailed and lengthy.  I take into account the material concerned therein but will not repeat the significant parts of it in this ex tempore judgment.  However, the recommendations are clearly set out on page 22 and recommend that, at present, S does not have communication with or spend time with the father except for those provisions of the orders of September 2008, which allow for letters and presents.  The recommendations then make reference to therapy which is recommended for the child and possible communication after that professional assistance.

4. Before the Court this morning, the mother appears unrepresented and opposes any further time being spent between the father and the children until the final hearing of the matter. 

5. The father appears by telephone link, unrepresented, from Western Australia.  He seeks that he have weekend contact beginning immediately at his parents' home. 

6. The Independent Children’s Lawyer is represented by Ms Cocks this morning and opposes any further time spent other than in accordance with the existing orders, which were made on 9 December 2010 which provided for the orders in relation to telephone contact.

7. The father has now instituted contravention proceedings in relation to those orders. It is necessary for those contravention proceedings to be determined before all of the issues in relation to the final orders can be heard and determined. I take into account that that would, therefore, mean a further delay in the hearing of the final orders application in relation to this matter, a factor which is of concern to the Court. When making the orders I am required to consider the best interests of the child and, in particular, the provisions of section 60CC.

8. Taking those factors into account and relying significantly in this interim matter, on the recommendations of the Family Consultant, I consider it to be in the best interests of S that pending final determination of the matters, the orders for the father to spend time with and communicate with S are suspended. 

9. At this stage of the delivery of my ex-tempore reasons the father interrupted and said amongst other comments that he wanted to withdraw his application to have any contact whatsoever with his daughter and the contravention application.  After a brief discussion I asked the father to comment upon the proposed order.  His comments did not oppose the orders.

10. The father indicated on two occasions that he wished to discontinue all proceedings in this Court and seeks no orders in relation to the child.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 March 2011.

Associate: 

Date: 23 March 2011