Missiakos and Missiakos

[2016] FamCA 1006

FAMILY COURT OF AUSTRALIA

MISSIAKOS & MISSIAKOS [2016] FamCA 1006

FAMILY LAW – CHILDREN – Undefended final parenting order

APPLICANT: Mr Missiakos

RESPONDENT: Ms Missiakos

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8072 of 2011

DATE DELIVERED: 14 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

IT IS ORDERED THAT

1.Further service of the father’s Amended Application Initiating Proceedings filed on 5 October 2016 on the mother be dispensed with.

2.That all previous orders with respect to the children L born … 2000 (“L”), J  born … 2002 (“J”) and P born … 2006 (“P”), (together “the children”) be discharged.

3.The father have sole parental responsibility for the children.

4.The children live with the father.

5.The children spend time and communicate with the mother by telephone, Skype (or other electronic means) or otherwise at times to be agreed between the parents.

6.Each of the parents keep the other informed of their respective contact details, including their address and telephone contact details.

7.Each of the parents keep the other advised as to their respective medical condition and keep the other advised with respect to any significant change to his or her medical condition.

8.The father continue to attend upon his treating medical practitioners, or such other medical practitioner as may be recommended, and to follow all reasonable recommendations provided by such medical practitioners.

9.Each of the parents be and are hereby restrained from causing, permitting or suffering the use of physical discipline on the children (or any of them) at any time in their respective care.

10.There be liberty to the mother to apply to vary or set aside these orders or as she may otherwise be advised not later than 28 days after service of this Order upon her, such service to be effected pursuant to paragraph 11 hereof.

11.The husband’s solicitor cause a sealed copy of this Order to be served on the mother by pre-paid post addressed to the mother and to the Proper Officer of Town O Health Centre and in the case of the latter, correspondence request that the Order be drawn to the attention of the mother.

12.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and made available to the parties and in the case of the mother be sent to her in the manner for service provided for by the preceding paragraph of this Order.

13.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

14.Otherwise, all outstanding applications be and are hereby dismissed.

IT IS DIRECTED:

15.That the father’s minute of orders be marked Exhibit “A” and remain on the Court file.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8072 of 2011

Mr Missiakos

Applicant

And

Ms Missiakos

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Senior Registrar’s duty list. It is the return date of an Amended Application Initiating Proceedings filed by the father on 5 October 2016.

2. The mother does not attend Court today. She has been called at the door of the Court and there is no appearance. I am informed by Mr Marchetti of counsel who appears on behalf of the father that the mother is an inpatient at Town O Health Centre.

3. The children were removed from the care of the mother on 19 April 2016 by intervention of the Department of Health and Human Services (“DHHS”) and have been in the care of the father since that time. The father’s affidavit material in support of the application indicates the further support he has sought and received from Transport Accident Commission to assist in his ongoing care of the children who are L, who is now very nearly 16 years old; J, who is 14 years old; and P, who is 10 years old.

4. On 23 September 2016, Registrar Field made orders for an amended application to be filed by the husband and for service to be by way of prepaid post to the mother at F Street, Town O. A variety of documents have been handed up by Mr Marchetti this morning which purport to prove compliance by the husband’s solicitors with the order for service made by Registrar Field. They seem to fall short in several respects but I am content to proceed with the matter today on the basis that, whilst orders may not have been completely complied with, the mother has been afforded procedural fairness and knows of the proceedings. Of course, if there is evidence subsequently forthcoming from the mother that she did not, I would anticipate that the proceedings could be reopened by her. All in all, however, it is a sad case which is requiring of finality and certainty for the children.

5. The proceedings were before me last year and finalised by a decision handed down on 23 December 2015. At that point, the husband was seeking unsupervised time with the children. He succeeded in that application. The mother, I recall, was presenting with some apparent difficulties in cognition. Pursuant to earlier orders which had been made by Hogan J in 2013, the mother had sole parental responsibility and at the hearing before me last year, the father did not seek to upset that or seek joint parental responsibility. However, at paragraph 134 of my Reasons for Decision [2016] FamCA 1187 I said the following:

   Neither parent nor the independent children’s lawyer contend for any alteration to Hogan J’s order that the mother have sole parental responsibility so I will provide for a continuation of that order. However, if the mother’s cognition difficulties increase it may be necessary for parental responsibility to be revisited.

6. I am now satisfied that, on the husband’s affidavit evidence and the reports from DHHS dated 24 July 2016 and 15 August 2016 (which are on the Court file), that the children are appropriately placed with the father and that he ought to have sole parental responsibility. This is due to the incapacity of the mother.

7. Today, Mr Marchetti has handed up orders at variance with those sought in the Final Amended Application that is on the Court file. The orders are, however, less onerous vis-à-vis the mother than the orders of which she has formal notice.

8. I am satisfied that the only viable parenting arrangement is that the father have sole parental responsibility.

9. I am satisfied that the other orders sought are in the best interests of the children having regard to the primary and additional considerations.

10. I will make orders in the terms of that minute. I mark it “Exhibit A” and direct that it remain on the Court file. I also, however, make an order giving the mother liberty to apply to vary or set aside these orders within 28 days of service upon her of these orders. There will be an order for service on the mother via the proper officer of the institution where I am advised she is currently a patient.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 October 2016.

Legal Associate:

Date: 25 November 2016