Mont and Essy

[2007] FamCA 1727

FAMILY COURT OF AUSTRALIA

MONT & ESSY [2007] FamCA 1727

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Consent orders made

APPLICANT: Mr Mont

RESPONDENT: Ms Essy

FILE NUMBER: MLC 12423 of 2007

DATE DELIVERED: 12 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 12 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K.F. Nicholson

SOLICITOR FOR THE APPLICANT: Townsend Wylde Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. I order that the minutes of orders filed this day be marked Exhibit A.  I direct that they remain on the court file.

2. I order by consent in accordance with those minutes to be engrossed on the provision of an electronic copy in the appropriate form by the solicitors for the father within seven days.  They include an order removing the proceedings from the list of cases awaiting hearing.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12423 of 2007

MR MONT  

Applicant

And

MS ESSY  

Respondent

REASONS FOR JUDGMENT

1. These proceedings have been referred into court by a registrar.  They started before the registrar on an application for the making of certain consent orders concerning the parties' child, …, born in December 2002, who has therefore just turned five years of age.  On the material with which the registrar was presented, I fully understand and support her decision to refer the matter into court because, at least initially, it raised some serious matters.

2. By way of short history, the proceedings commenced in the Federal Magistrates Court and came before that court on 10 November 2006.  The proceedings were conducted at least initially in an atmosphere of serious allegations being made on both sides which concerned abuse and family violence.  In particular, the mother had made serious allegations against the father which had been investigated by the State Department of Human Services.

3. In an affidavit sworn on 6 December 2007 and filed in support of this application, the father deposes to having always maintained that the allegations were not true, and he continues to maintain that position.  It would appear that both the department and the Victoria Police made deliberate decisions not to pursue the matter and obviously therefore may be seen to have accepted that there was nothing which concerned them either as to any potential criminality on behalf of the father or with regard to the best interests of the child.

4. It would appear that the mother withdrew her allegations effectively at the door of the court and, as a result, consent orders were made.  Those orders provided for the child to live with the mother and for the father to spend substantial times with the child.  Essentially, those times were each alternate weekend from noon on Friday to noon on Monday, together with half of the mid-year school holidays and half of the Christmas school holidays.  There was other time including Father's Day and like matters which were included in those orders.  The father was also given the right to communicate with the child by phone once a week and otherwise at all reasonable times to be instigated by the child, with the mother required to facilitate such calls. 

5. Of importance was the provision in paragraph 3.7 of the orders that until 9 February 2007, the father's time with the child was to be supervised by his grandfather or his grandfather's partner or another person.  I am persuaded in particular by the fact that that supervision order came to an end within a few months of the consent orders being made.  It then appears that the child went to live with the father on a full‑time basis in May 2007.  There has been some time spent by the child with the mother, but on the basis of the father's affidavit it would appear that that time has not been regular.  In fact since May 2007, the status quo has existed for the child to be living with the father.

6. The minutes of orders, sought to be orders by consent, which were presented to the registrar provide for the discharge of the orders of 10 November 2006, to which I have referred, and for the father and mother to have equal shared parental responsibility of the child.  The orders provide that the child live with the father and spend time with the mother on each alternate weekend from Friday to Sunday evening, for one week in each of the school holidays and other times such as birthdays, Christmas Day and the like.  There is a further provision that time may be spent with the mother as may be otherwise agreed.

7. During the proceedings before the Federal Magistrates Court, the child was represented by an independent children's lawyer who is very experienced both in family law generally and particularly in the area of representing children in this court.  I have been provided with a copy of a letter dated 10 December 2006 by the former independent children's lawyer, who was of course discharged on the making of the final orders, which writes glowingly of the father and the mother and their ability to parent the child.  In particular, the former independent children's lawyer wrote:

   I formed the opinion that this was a matter where the mother no longer considered those allegations to be based in truth and that she had a change of attitude regarding the father and his involvement with the child.  Therefore it was possible for final orders to be made by consent.

8. She then refers to the father having undergone counselling and that he had the strong support of family "who appeared to be very decent people".  The letter then records the mother as having ceased to be legally represented following the making of those final orders and noted that she obtained employment at a local cooperative.  The former independent children’s lawyer was most impressed with her when she spoke to her on the telephone.  While noting that the former independent children’s lawyer does not have any ongoing involvement with the child, she writes:

   However, I am happy to confirm from my perspective that when I last spoke to the mother in early 2007, the mother was progressing extremely well.  On that basis I would believe that if the mother had reached an agreement with the father for the child to move to live with the father, she would have been capable of doing so freely.  I believe that both parents would have the capacity to care for the child, and unless there has been a significant change which has not been brought to my attention, I believe that the current proposed consent orders would be appropriate. 

9. Those consent orders referred to are the orders presently before me.  I have to say that on the material, I am satisfied on the relevant balance to a very high degree that the matters put before me are very positive for the future care of the child.  I note that the mother is of Aboriginal culture.  She has not appeared today but has signed these consent orders, and no matter is put before me to suggest that issues of culture impact on the proposed orders.  Given my knowledge of Aboriginal culture, in my view it is important that the order that the mother spend time with the child as provided in the proposed orders be complied with not just for the sake of the mother-child relationship but also for the sake of the child's relationship with his extended cultural family.  In the circumstances, I am persuaded pursuant to Part VII of the act that for all of those reasons the orders should be made, and I will make them accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  18 December 2008