Mizzi and Wilson

[2016] FamCA 651

FAMILY COURT OF AUSTRALIA

MIZZI & WILSON [2016] FamCA 651

FAMILY LAW – CHILDREN – Despite maintaining serious accusations against the mother at an interlocutory level and insisting he was the primary carer, the father abandons the litigation – Matter proceeds undefended.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mizzi

RESPONDENT: Ms Wilson

INDEPENDENT CHILDREN’S LAWYER: Mr Ambrose

FILE NUMBER: MLC 7285 of 2014

DATE DELIVERED: 2 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 August 2016

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Lesley

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Ambrose

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

:

McKean Park Lawyers

Orders

1. That all previous orders in these proceedings, including the order appointing the Independent Children’s Lawyer, be discharged.

2. That the mother have sole parental responsibility for the care, welfare and development of the children D born … 2013 and C born … 2011 (“the children”).

3. That the children live with the mother.

4. That the father, his servants and agents be and are hereby restrained from allowing the children to come into contact with any of Mr E, Mr F Wilson or Ms G Wilson.

5. That pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders.

6. That all outstanding applications are otherwise dismissed

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mizzi & Wilson 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 7285 of 2014

MR MIZZI

Applicant

And

MS WILSON

Respondent

INDEPENDENT CHILDREN’S LAWYERS

REASONS FOR JUDGMENT

1. These parenting proceedings are between Mr Mizzi (“the father”), and Ms Wilson (“the mother”), about their two children, C who is aged five, and D, who is aged three.  The unusual feature is that, notwithstanding what the father said about the litigation when it began, he has not participated in any way since the final hearing was set down.  Indeed, the two striking features are that he now has no contact with the children and has virtually vanished.  The mother seeks parenting orders on what is described as an undefended basis.  Those orders are supported by the Independent Children’s Lawyer. 

2. A parenting order is described in section 64B(2), of the Family Law Act1975 (Cth) (“the Act”) to include the allocation of parental responsibility, as well as how the children are to spend time and be cared for by their parents. The mother seeks those sorts of orders as indicated by the minute tendered today. She also sought an order that the children spend time with the father “as agreed” but there is no need to make that order because that arrangement can be implemented without court involvement or sanctioning. The two orders sought are about parental responsibility and daily care.

3. There is a second issue which relates to an order of an injunctive nature, which was originally of a mutual nature but is now agreed should be directed specifically to the father about bringing the children into contact with three named people in the event that he has any time with them in the future. That is an order for the protection of the children within section 68B of the Act. It is a proper order, having regard to the background of this particular case.

4. Section 60CA of the Act provides that in deciding whether to make a particular order, a court must regard the best interests of the children as the paramount consideration. Orders, if made, must be proper. That can be seen in section 65D (1). Because there is no consent to orders from the father’s perspective, the Court is obliged to consider both section 60CA and section 60CC.

5. Natural justice requires a consideration of whether the father has been denied access to the Court or is unaware of the nature of the proceedings.  I am satisfied he has had ample opportunity and notice of the process to participate and has chosen not to.  That is evident from the mother’s affidavit, which can be seen in the document filed on 27 July. 

6. Despite orders giving him time with the children, the father wrote to the mother on 15 April 2016 altering the parenting shared care arrangements then in place.  He said that he had lost everything and had given up.  10 days later he wrote to say he was in hospital.  Apart from the curious fact the father was communicating with the mother at all, he said nothing further.  The mother’s evidence is that she has not since heard from him.  She said he has failed to respond to her overtures nor communicated with the Independent Children’s Lawyer.  In addition, she has had the children, at their request, telephone him and leave messages to which he has not responded.  He has not filed any evidentiary material since the February 2016 orders and documents sent by the Court are shown on the Court file as having been returned with the father not at the address that was provided by his then solicitor in February 2016.

7. He was present in the Court on 29 February 2016 when the orders were made for the final hearing.  The Court record for that hearing showed that he was emphatic in his intention of pursuing the parenting orders he now no longer seeks.  There is no reason to doubt that he has had an opportunity to participate and has declined to do so. 

8. These children are entitled to have their future lives sorted out and the mother is entitled to know that she can make decisions for the children without interference from the father. 

9. In this particular case there is no need for the background to be portrayed.  There is no dispute as to paternity.

10. I have heard about the arrangements for the children at the moment in relation to their schooling and their care in a crèche, together with the arrangements of the attempts made by the mother to contact the father.  It is clear that he has no interest in their lives.  Previous concerns about the mother’s own stability have now been eliminated and, in any event, the Court is limited in its alternatives.

11. It is important to state that there is no evidence of any interest by the Department of Health and Human Services.  The mother’s position is supported by the Independent Children’s Lawyer. 

12. In relation to what is in the best interests of these children, I am prepared to make a number of findings.  For the purposes of section 60CC(2), there is no prospect of any meaningful relationship between the father and the children at the moment in circumstances where he has walked away from them.  There are certainly concessions being made by the mother about past risks of harm to these children but as to the current complaint by the father and no concern expressed by the Independent Children’s Lawyer, there is no finding I can make under section 60CC(2)(b), albeit that I have certainly considered it.

13. For the purposes of section 60CC(3)(b), (c), (ca) (f) and (i), the absence of the father again makes it difficult to assess the underlying level of responsibility, dedication and care that he has for the children.  He is not assisting the Court in offering any solution nor indicating his plans for the future care and upbringing of them, nor is he criticising the mother in respect of any of the roles that she fulfils in respect of them.  There is therefore no reason for me to doubt that the mother meets all reasonable and proper standards to the Court’s satisfaction. 

14. In respect of section 60CC(3)(a), (d) and (e), the children are too young to express a view about what they see as a relationship with both of their parents.  One can only speculate how they are perplexed by the absence of their father, who had a role in their lives earlier.  That is supported again by the evidence of the mother today in that she contacted the father to enable the children to speak to him and he did not respond to their messages.  Whatever has caused his walking away from these children, it ignores their needs and the benefit that they have in having a significant parent in their lives. 

15. In relation to the requirement under section 60CC to consider family violence, not only is there no evidence upon which I could make any findings against either parent but the mother in evidence today has indicated that she has no concern for herself or for the safety of the children.

16. The other issues are not relevant, other than for the purposes of section 60CC(3)(l) insofar as it is important that this litigation, which began in August 2014, should end.  It has been the parties who argued interim arrangements and sought orders that required hearings.  The Court accommodated the making of those orders to regulate the lives of the children in circumstances where both parents have now a position totally different to what the Court was originally told.  In this case a permanent solution is now needed.

17. The end result is the father has walked away from the children, albeit he seems to say he walked away from the litigation in the message that he provided to the mother in April this year.  There had been no dispute about the decision-making for these children, having regard for what I have just said.  The mother should have sole parental responsibility.  Similarly, the children need, and the community expects, a responsible adult to make decisions for them.  That parenting order should be made as well.  The mother will have the daily responsibility for the decisions about the children as well.

18. As the role of the Independent Children’s Lawyer is completed, the formal order should be that the Independent Children’s Lawyer be discharged.  If the father had sufficient interest in the children’s welfare he may make whatever inquiries he needs about them.  I see no reason for the mother to have to pursue him, having regard to the calls that she has already made. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 August 2016.

Associate: 

Date:  11 August 2016