Nesbitt and Thomson

[2012] FamCA 81

FAMILY COURT OF AUSTRALIA

NESBITT & THOMSON [2012] FamCA 81

FAMILY LAW – CHILDREN – Child related proceedings

APPLICANT: Mr Nesbitt

RESPONDENT: Ms Thomson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2265 of 2010

DATE DELIVERED: 24 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 24 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms O'Connell

SOLICITOR FOR THE RESPONDENT: Jane Baldwin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Howard

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

Orders

IT IS ORDERED:

1. THAT the husband’s initiating application filed 8 July 2010 be otherwise dismissed.

2. THAT all extant proceedings be otherwise dismissed and the proceedings be removed from the docket of Young J.

3. THAT the mother have sole parental responsibility for the children S born … February 2000 and D born … December 2002 (“the children”).

4. THAT the children live with the mother.

5. THAT unless otherwise agreed the father spend no time with and is not to communicate with the children.

6. THAT the father pay to the mother’s solicitors on behalf of the mother costs assessed in the sum of $3,200, such payment to be made within sixty (60) days and in default interest thereafter accrue at the rate prescribed from time to time pursuant to the Family Law Rules and be paid quarterly in arrears until paid in full.

7. THAT the appointment of the Independent Children’s Lawyer be discharged.

8. THAT forthwith the Independent Children’s Lawyer serve upon the father a sealed copy of these orders and the extempore reasons for judgment and provide a confirmation letter to the Court of such service by prepaid post.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

10. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2265 of 2010

Mr Nesbitt

Applicant

And

Ms Thomson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me orders sought by the mother and by the Independent Children’s Lawyer which will finalise all children and parenting proceedings.  The father is not present at Court.  I have had him called out of Court and he does not appear.  I have determined to proceed, hear and conclude these proceedings in his absence.  Both Ms O’Connell who appears as Counsel for the mother and Ms Howard representing the Independent Children’s Lawyer have urged upon me that the proceedings be heard and concluded this day.  In that regard, I have re-read the notations to my previous orders made on 24 January 2012.

2. On that occasion the father did not appear and the lawyer then appearing for the children contacted him on his mobile telephone and thereafter advised the Court of his response to her.  She indicated to him that the matter would be adjourned to this day and that he should appear on that day.  Whilst I have inquired whether any separate letter had been sent to the father confirming this hearing date, I am nevertheless satisfied that he has displayed a history of showing no interest or involvement in these proceedings of recent times and should or did know of this date.

3. His absence today was expected by the other parties, and in the interests of the children, it does seem necessary to hear and conclude this matter and make orders that are in their best interests.  I am aware that the father had previously been notified of adjourned hearings by the mother’s solicitor and he nevertheless had failed to appear. 

4. The history of this matter is encompassed in proceedings both in this Court and in the Federal Magistrates Court.  Initially, the father was applicant and proceedings were commenced by him on 8 July 2010.

5. On that occasion, he sought orders for equal shared parental responsibility for the two children S born in February 2000 and D born in December 2002.  He there identified in paragraph 3 the time that he sought to spend with both children.  As I am informed by Ms O’Connell and looking at the various orders in this matter, there have not been any orders made providing the father court-ordered time with one or other of the children.  I have been advised that he independently saw the children in mid or late 2009, but since that day, over two years ago, has not spent time or otherwise has not communicated with S or D.

6. The mother filed a response to the father’s application and there have been various orders made in the courts in an endeavour to prepare the matter for trial.  Most significantly, the Senior Registrar made orders on 6 December appointing the Independent Children’s Lawyer, requiring the father to attend upon and obtain a report from a psychiatrist and otherwise requiring supervised urine testing and hair follicle testing to detect illegal substances.  The subsequent orders have likewise been endeavouring to facilitate the preparation of those reports and/or to prepare the matter for trial.

7. I have read the various orders of the Senior Registrar and I record that all extant interim applications were dismissed on 8 August 2011 and all that now remains before the Court is the final application which was that initiated by the husband filing that document in the Federal Magistrates Court at Dandenong on 8 July 2010.  I record that I have had the advantage of reading the Reasons for Judgment provided by the Senior Registrar on 6 December 2010.  There are documents to which I particular refer.  There was a Notice of Child Abuse or Family Violence filed 3 August 2010 by the mother’s then lawyer, and identified in that document are significant allegations made against the father and his conduct towards both the mother and each of the children.

8. There are allegations there made of substantial family and personal violence and criminal assaults.  All of those matters are substantiated by the mother’s affidavits, and in the context of determining what is in the best interests of the children, they are matters of very significant importance.  I have also had the opportunity to read the report of Dr T, consultant psychiatrist, who consulted with the father and prepared a detailed report dated 6 August 2011.  That provides a significant personal history of the father’s upbringing and lifestyle, his medical and psychiatric history, and his issue of drug use. 

9. I have considered and evaluated the mental state examination and the opinions and recommendations provided by Dr T.  It is a matter of significance that the father is reluctant to engage in programs of therapy which might address the alleged issues of violence or his poor emotional regulation.  In that regard, paragraphs 41 – 45 (inclusive) of that professional report are of real assistance to the Court.  The father has previously had solicitors acting on his behalf but that firm, Robert Halliday, filed a Notice of Ceasing to Act on 19 January of this year.

10. When the matter was last before me, I required an updated statement of orders to be filed by both the solicitors for the mother and the Independent Children’s Lawyer.  That has been done and each of them seek orders whereby the children live with the mother and she to have sole parental responsibility for each of them.  Each of them seek to restrain the father from spending time with the children or communicating with them, and somewhat more bluntly, the Independent Children’s Lawyer proposed that the father spend no time with and do not communicate with the children, save pursuant to any court order.

11. As a background to the orders I make today, I record that the Senior Registrar has previously ordered in paragraph 9 of his orders made 6 December 2010 after a contested hearing where both parties were both represented by Counsel that the mother was to have sole parental responsibility for both children until further order.  It is also a matter of significance that no orders were made on that day for the father to spend time with or otherwise to communicate with one or both of the children.  I have also read the various affidavits in this matter. In particular Ms O’Connell directed my attention to the most recent affidavit of the mother filed 31 January of this year.

12. That affidavit briefly sets out the circumstances of the de facto relationship in which the parties lived for approximately seven years, subject to various separations within that time period.  It highlights what is described as the high level of domestic violence and the criminal activities of the father and his drug and alcohol issues.  I am also aware of the health issues confronting the child S and her ongoing therapy and counselling.  Clearly, the conclusion of these proceedings will be a benefit to her as it will bring some level of finality to her family and home circumstances. 

13. The mother has remarried and those circumstances have been identified with the Court.  The children have always lived with the mother and it is appropriate that there be an order for sole parental responsibility in her favour. 

14. The Family Law Act requires a presumption of equal shared parental responsibility and that is provided for in section 61DA.  That shared parental responsibility however can be rebutted on proper grounds if there is abuse of a child or family violence.  The circumstances of this case substantially evidence and require a rebuttal of that presumption.

15. In any event I am comfortable in pronouncing a sole parental responsibility order, as it is continuing an order made by the Senior Registrar in December of 2010. 

16. The primary obligation of the Court is to make orders that are in the best interests of the children. The particular issue in this matter is, on the basis that the children live with their mother and she exercise sole parental responsibility for each of them, whether there should be any provision made for the father to spend time with or communicate with the children. In that regard I have carefully reflected upon the primary and additional considerations set forth in section 60CC(2) and (3) of the Family Law Act 1975.

17. The significant issues to be considered are the children’s relationship with their parents, and in particular, the lack of a relationship with their father, the capacity and attitude that he would bring to the fore in looking to spend time, to provide or care for them, or to bring any level of regularity to their life, were he to be given any time with them.  On all the material filed, I can have no confidence that he would responsibly visit and spend meaningful time with the children and encourage them in a good and sensible manner.  It is a matter of significance that he has not seen or made any endeavours to see them in the past two years, and almost certainly the children do not need any more difficulties or interruptions with their lifestyle and upbringing.

18. If it was a matter of real importance to the father, he would have more substantially been involved with his application to spend time with the children.  He would have attended to the appropriate reports and actions required of him and at the least he would have been at court supporting his initial application to see and spend time with his children.  This he has not bothered to do and I can fairly and properly conclude that he has little current interest in or desire to spend time with them or to financially support them.  I have been advised from the bar table that there are no payments of child support currently being paid.

19. Generally, therefore, I have evaluated the affidavit evidence before the court.  In the absence of any specific interest and request by the father, I see no benefit to the children in providing any designated time that they spend with him.  It is appropriate to record that on proper circumstances and when he has complied with all court requirements, it is a matter that he could reapply to the court for, and the door should never be closed on a parent seeking time, and one would hope he would only do so in very proper circumstances and when and if he is genuinely interested in the children.  I therefore intend to provide no periods of time for the father to spend with or communicate with the children.  I conclude that such orders are in the best interests of the children.

20. There are no property or financial proceedings before the Court.  Leaving aside any jurisdictional issues that may exist as at this day for particular legislative reasons, there are no orders sought, and in dismissing the initial application that relates only to child and parenting issues, the other matter that Ms O’Connell has touched upon on behalf of the mother is that there were previously costs ordered by the Senior Registrar on 8 August 2011 in the sum of $1,600, though payment was stayed until the final hearing.  Additionally, I ordered a sum of $1,600 in the last Court hearing on 24 January 2012, but subject to the question of payment being proved to the satisfaction of the Court.

21. The first of the costs orders as ordered by the Senior Registrar was merely stayed until the final hearing, and as I dismiss all applications today, that $1,600 sum is now payable by the father to the mother.  As to the costs that I foreshadowed in paragraph 6 of my orders on 24 January, I will confirm that it is just that costs should be paid.  Thus the total is $3,200.  Initially, I was somewhat reluctant to make that confirmation of the further payment sum, but on the basis that Ms O’Connell has indicated that no costs of this day are being sought, that effectively is a reduction to the father of costs that otherwise he may have also faced by his refusal to attend court and argue his case.

22. On balance, I conclude that $3,200 is a proper all-up costs quantum, but leave wholly to the mother the issue of whether it is enforced.  As Ms O’Connell has submitted to the Court, that is a choice that the mother will consider hereafter and will not necessarily approach the father for those monies. 

23. I will discharge the appointment of the Independent Children’s Lawyer and make other orders to finalise this matter.  I will have these brief ex tempore reasons transcribed, placed upon the court file, and I will require of the Independent Children’s Lawyer that a copy of these orders and these Reasons for Judgment are forwarded to the father at his last known address, and the court has recorded K Street, Town W.

I certify that the preceding Twenty Three
(23) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 24 February 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………