Murcott and Dacker

[2007] FamCA 707

FAMILY COURT OF AUSTRALIA

MURCOTT & DACKER [2007] FamCA 707

FAMILY LAW - CHILDREN - With whom a child shall live - With whom a child shall spend time

Family Law Act 1975

Applicant: Ms Murcott

Respondent: Mr Dacker

Independent Children’s Lawyer: Independent Children's Lawyer

File Number: BRF 932 of 2006

Date Delivered: 15 June 2007

Place Delivered: Townsville

Judgment of: Carter J

Hearing Date: 15 June 2007  Conducted by telephone link

Representation

Applicant: No appearance

Counsel for the Respondent: Mr McLachlan

Solicitor for the Respondent: Beckey Knight & Elliott

Independent Children’s Lawyer’s Counsel Mr Emerson

Independent Children’s Lawyer: Emerson Family Law

Orders

1. That the children R born in December 1992, N born in March 1994 and C born in October 1995 live with the father.

2. That the father have sole responsibility for the children’s long-term care, welfare and development.

3. That the children spend time with the mother at all times agreed between the parties and failing agreement as ordered by the Court.

4. That all applications otherwise be dismissed and removed from the list of cases awaiting determination.

5. That the appointment of the Independent Children’s Lawyer be discharged forthwith.

6. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

7. That Reasons for Judgment when given be placed on the file with copies to be sent to the Independent Children’s Lawyer, the solicitor for the father and to the mother.

8. That the Court arrange to provide the mother with a copy of these orders by sending the same to her at her last known address.

The Court Notes

These orders are made with the consent of the father and the Independent Children’s Lawyer but in the absence of the mother who did not attend.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: BRF 932 of 2006

Ms Murcott

Applicant

And

Mr Dacker

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings which have been heard on an undefended basis for reasons which will shortly become apparent.  The hearing was conducted by a telephone linkup, at the conclusion of which I pronounced orders, explaining I would deliver Reasons later.  These then are those Reasons.

Heading

1. The proceedings concern three children, namely, R, born in December 1992, N born in March 1994 and C born in October 1995.  As can be seen, R is 14½ years old, N has not long turned 13 and C is just over 11½ years of age.

2. The children’s parents are Ms Murcott (“the mother”) and Mr Dacker (“the father”).  They did not marry but lived together from about 1990 until about 2001.  The children remained living with the mother following their parents’ separation.  The father did not spend a great deal of time with the children until about 2003 when he commenced spending time with them in school holidays and also commenced regular telephone communication.  This seems to have largely continued at least until the mother moved with the children to L, New South Wales, from her previous home in Central Queensland.

3. On 17 December 2005 the father collected the children to spend holiday time with them.  He lives at S south of M.  He became concerned about the children’s welfare and retained them.  They have been living with him since that time.  They have spent some holiday periods with the mother.  The mother has not taken an active part in the proceedings for almost a year and the father sought that I make final orders in his favour.

Litigation

1. The proceedings commenced on 6 February 2006 when the mother filed an application for a Recovery Order in the L Local Court, seeking the return of the three children of the relationship.  She also filed applications for final and interim orders on the same day.  In broad terms, she sought that the children live with her.

2. The respondent to those applications was the father.  On 15 February 2006 he filed responses to the applications for final and interim orders.  He also sought that the application for the Recovery Order be dismissed and that the children live with him.

3. The father and the mother both filed affidavits sworn by or on their behalf.  Eventually an interim order was made by the Local Court on 24 March 2006.  In broad terms, orders were made for the children to live with the father and to spend time during school holidays with the mother.  The proceedings were transferred to the Family Court at Brisbane and a recommendation was made that an Independent Children’s Lawyer be appointed.

4. An Independent Children’s Lawyer was appointed on 3 May 2006.  At the request of the Independent Children’s Lawyer, Mr W, a psychologist, was engaged to prepare a Family Report.  That Report is dated 2 August 2006 and it is annexed to Mr W’s affidavit filed 3 August 2006. 

5. On 13 September 2006 Trial Notice Directions were made.

6. On 18 September 2006 a Notice of Ceasing to Act was filed by the mother’s solicitors.  Since that time the mother has not attended at any court event.

7. On 11 October 2006 the Trial Notice Directions were vacated and all applications were transferred from Brisbane to the Townsville Registry.

8. On 28 February 2007 a procedural hearing took place which was adjourned to 19 April 2007. 

9. A Child Dispute Conference was held on 16 April 2007.  The father attended, the mother did not.

10. On 19 April 2007 a further procedural hearing took place and on 26 April 2007 orders were made by Registrar Boyd fixing the father’s application for hearing on an undefended basis in Townsville on 8 June 2007.  Orders were also made for filing of documents and service on the mother.  Any further affidavits upon which the father sought to rely were to be filed and served by 25 May 2007 and the order of 26 April 2007 was to be served on the mother within 14 days.  Service was permitted to be effected by post, addressed to the mother at L, New South Wales.  The affidavit of the father’s solicitor filed 13 June 2007 demonstrates that the order was served as directed.

11. No further affidavit by or on behalf of the father was filed as had been directed but on 6 June 2007 an “updating” affidavit was sworn by the father.  It was filed on 13 June 2007 and I have been told by the father’s solicitor and accept, that the affidavit and another affidavit of the solicitor was sent by courier to the mother’s last known address.

12. The matter was not able to be dealt with on 8 June 2007 and accordingly came before me on 15 June 2007.

13. For convenience I note here that I was told at the hearing that the mother was advised of the adjournment by letter sent to her last known address by the father’s solicitor on 8 June 2007.

The Hearing

1. The father was represented by his solicitor Mr McLaughlin and the Independent Children’s Lawyer, Mr Emerson, appeared in that capacity.  The mother was called but did not respond.  The hearing was conducted by telephone linkup, so far as the legal practitioners were concerned.

Evidence

1. The documents relied on by the father are set out in his Case Outline filed 13 June 2007.  I have read all those documents.  I note that the last affidavit relied on was that sworn 6 June 2007.  It was filed 13 June 2007, not 6 June 2007 as had been noted in the Case Outline, but nothing turns upon this.

2. I have also read the Report of Mr W.  That was not formally relied upon by the father but was referred to in his Case Outline under the heading “Relevant Legislative Considerations” and accordingly it was important that I familiarise myself with it.  The Report was of value, even though it was based on interviews conducted some ten months ago.

3. For the purposes of his Report Mr W read documents which were provided to him by the Independent Children’s Lawyer and which are detailed in his Report.  He interviewed the father, the children and Ms S (the father’s partner) on 11 July 2006.  He made very brief observations of the children with the father and his partner.  Mr W interviewed the mother on 19 July 2006.  He was not able to see her with the children for geographical reasons and which were set out in his Report.  On 1 August 2006 he had a further telephone interview with the father’s partner.

4. The Report itself is of 31 pages.  It is comprehensive and detailed and appears fair and balanced.  I take into account that Mr W has not been cross-examined.  The Report sets out information provided by all persons interviewed, including their personal backgrounds, the events during the relationship and afterwards, amongst other matters.

5. Mr W noted that the major issues to be addressed in his Report were:

   ·The views and wishes of the children.

   ·The children’s interactions and/or relationships with each parent.

   ·The respective concerns and proposals of the mother and the father.

   ·Factors pertaining to, and within, the mother and the father which may be impacting on the proposals for where the children live and when they spend time with each parent.

   ·Other factors, issues and circumstances pertaining to the current and proposed arrangements.

6. Mr W addressed those issues very thoroughly and expertly.  Commencing at par 176 Mr W summarised the situation as a result of his interviews with the parents and on the basis of the affidavit material which he had read.

7. In par 185 Mr W noted that R and C had “clearly articulated” to him their position on where they wished to live.  This was with their father.  He had earlier recorded a number of things which the children had told him had happened whilst they lived with their mother, which gave him concern.  He concluded by saying that he was not convinced that the mother had a household in which the children’s basic needs had the priority which they should have, adding that it appeared that the children had suffered from neglect.

8. In par 187 Mr W described N as being “almost immobilised” by her emotions when he met with her.  He noted that she very clearly did not wish to state a position about the person with whom she wanted to live and that she agreed with him that she felt confused.  He later described her as trying not to upset her parents, drawing a contrast with her brothers, who were said to be generally much more assertive, particularly in the manner in which they spontaneously told him of where they wished to live.

9. Commencing at par 190 Mr W set out his recommendations and other matters.  It was his recommendation that the children should continue to live in the home of their father.  He noted however and qualified this recommendation on the basis that Ms S, who it will be recalled is the father’s partner, was making a significant contribution to their day-to-day care.  It was the psychologist’s view that without his partner, the father would not be able to provide adequate care and supervision to the children should he continue with his current employment.  If that relationship ended, it was the psychologist’s opinion that the living arrangements for the children would need to be urgently reviewed.  It is convenient to note here that I am satisfied that this relationship is stable and continues.

10. Mr W also recommended the children should be given every opportunity to spend time with their mother who was, at the time of interviews at least, without work and accordingly without the financial means to travel regularly to M or to pay for the children to travel to her.  It was his view that it would be reasonable for the father to make some form of contribution to facilitating the children spending time with their mother, noting that N, in particular, seemed especially bonded to her mother, but that in any case all three children would suffer further should they not be able to spend time with her.

11. In his last affidavit the father detailed the time which the children had spent with their mother since the order was made in the Local Court in New South Wales in 2006.

12. In par 6 of this affidavit the father referred to arrangements which were made for the children to spend the school holidays in September 2006 with the mother.  The parties had agreed that the father would arrange and pay for the children to travel by air to Brisbane on 24 September 2006 and the mother was to return the children, also by air, on 1 October 2006.  The father had paid for the return flight and he was to be reimbursed for that.  At the time the arrangement was negotiated the mother was legally represented and the arrangements were confirmed in correspondence between both parties’ solicitors.  However, on the day that the children were to be returned, the father deposed that he received a call from the mother saying that the children had missed the plane.  He therefore had to drive to L to collect the children so that they could be home in time for school.

13. The father went on to say in this affidavit that the mother did not ask to see the children at all during the Christmas 2006/2007 holidays.  She was said to have told the father that she would “try to get money together to spend time with the children” however, on the day she was supposed to arrive, she called saying she could not “make it”.

14. According to the father’s evidence the mother told him that she wanted to spend time with the children during the week before the Easter school holidays, in 2007.  Having checked with the school the father ascertained that this would not present any problems for the children.  However, the mother again did not arrive.

15. The father noted that the mother had not spoken about having the children for the forthcoming school holiday period. 

16. In his last affidavit the father also set out the current arrangements for the children.  All three children appear to be doing well.  R was described as an average student but his brother and sister were described as making good progress at school.  I note that the children all play sport, both at school and outside school hours.  They also attend a youth group twice a week, where they experience many other activities.  According to the father’s evidence the children have settled into the community well.  They have made many friends in the area, who often come to the children’s home.  Alternatively, the children may go to their friends’ home for overnight “sleepovers”.  It would seem that the financial support of the children is almost exclusively provided by the father, given his evidence that the mother pays only “the minimum amount of child support”.

Conclusion

1. The father’s solicitor has provided a most helpful summary of the relevant legislative considerations in the Case Outline.  I agree with the submission that the presumption of equal-shared parental responsibility articulated in s 61DA should not apply, because it is not in the best interests of these children.  As was submitted the mother’s actions do not indicate that she wants to share parental responsibility.  Further, she has failed to engage in the proceedings for many months now and on the evidence before me, is either unable or unwilling to participate in the children’s lives as an active and involved parent.

2. Mr McLaughlin has also summarised the evidence relied upon in detailing submissions relating to the Primary considerations and the Additional considerations set out in s 60CC.  I agree with the submissions which are sound and based upon the evidence.

3. I also agree that it is not practical and in accordance with s 60CC considerations for an “equal time order” to be made.  So far as practicability is concerned, the mother and the father do not live in the same State and the father, as submitted, only has limited communication with the mother as a result of what appears to be her highly mobile lifestyle.  Nor would any such order be in the best interests of the children, on the basis of the evidence before me.  An order for “substantial and significant time” is again not reasonably practicable and is not in the best interests of the children for the same reasons.

4. I have had regard to the Objects of Part VII of the Family Law Act.  Sadly, these children do not currently have the benefit of both their parents having a meaningful involvement in their lives.  Similarly, they are not presently able to “know and be cared for” by both their parents.  However, this is as a result of the mother’s lack of involvement in the proceedings and their lives.  I am satisfied on the evidence that the father will do all that is within his power to facilitate a relationship between the children and their mother, should she demonstrate a desire for this, and should this be in their best interests.

5. I note that pursuant to s 60CA I am required to regard the best interests of these children as the paramount consideration in deciding whether to make a particular parenting order in relation to them.

6. The orders which I have made and which are set out at the commencement of these Reasons are, I am satisfied, in the best interests of these children in the circumstances of this case.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:       

Date:              15 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MURCOTT & DACKER