O’Laughlin and O’Laughlin

[2012] FamCA 1033

FAMILY COURT OF AUSTRALIA

O’LAUGHLIN & O’LAUGHLIN [2012] FamCA 1033

FAMILY LAW – CHILDREN – Parental responsibility– Where matter undefended by Father– Where Father’s previous problems with excessive alcohol consumption may have been responsible for his conviction of an offence against his step-daughter, resulting in prison time  – Where Father losing interest in attending contact centre with children – Mother to have sole parental responsibility – Children to spend supervised time and communicate with Father at all times as may be agreed by the parties in writing.

APPLICANT:

Ms O’Laughlin

RESPONDENT: Mr O’Laughlin

FILE NUMBER: BRC 11707 of 2007

DATE DELIVERED: 30 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 30 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Flis, Solicitor of Rhonda Sheehy & Associates appearing for the Applicant Mother

COUNSEL FOR THE RESPONDENT: There being no appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carlton of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

1. The children, B born … January 2004 and C born … July 2005 live with the Mother.

1. The Mother have sole parental responsibility for the care, welfare and development of the children and in the exercise of that responsibility the Mother proposes to:

   a.notify the Father in writing prior to making decision about major long term issues in relation to the said children including, but not limited to, the said children’s formal education, religious education and health;

   b.invite the Father to indicate his views in writing;

   c.take the Father’s views into account in making such decision; and

   d.inform the Father in writing of her decision.

1. The children spend supervised time and communicate with the Father at all times as may be agreed between the parties in writing.

1. The Father be restrained and an injunction be hereby granted restraining him from requesting the children to pass on messages to or making enquiries about the child D born … October 1998.

1. 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 the 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Laughlin & O’Laughlin 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 BRISBANE

FILE NUMBER: BRC 11707 of 2007

Ms O’Laughlin

Applicant

And

Mr O’Laughlin

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms O’Laughlin for parenting orders in relation to two children of her marriage to the respondent, Mr O’Laughlin.  I have had the opportunity of seeing the material in this case and there was one affidavit filed by the father back in 2009 and since that time he has not filed any material.  I notice that his solicitors here about the month of May, correct me if I am wrong, filed a notice of ceasing to act.  Nothing further has been received from the father and as a result thereof I had him called three times in the precincts of the court.  He did not appear and I will proceed with this matter on an undefended basis.

2. It is quite clear on the material before me that there was some extreme difficulties in relation to the father’s excessive consumption of alcoholic liquors and this may have been responsible for his being – or partially responsible for his being charged with an offence against his step-daughter, D –

RECORDED    :    NOT TRANSCRIBED

1. Who was at the time, was aged about seven years old.  He was convicted and sentenced to a term of imprisonment.  The mother has referred to the difficulties that she experienced in living in the area where the husband was and as a result was forced to move herself from that area.  She went to live with her mother in a five bedroom house or something of that nature.  The children have been interviewed by Mr E, a well-known family consultant on at least two occasions.  His initial view was that if anything, the time spent between the younger children, that being B and C should be lessened, but however, in his second one he did tend to consider that perhaps the children’s rights should be emphasised and that the father should have some form of supervised contact for a period of six hours initially extending.

2. The father has not shown any interest in coming to court and prosecuting his response.  He has not seen the children on the material before me since about May of this year notwithstanding that the children were, as I understand, available for contact at a contact centre.  He has, on one other occasion been excluded from a contact centre back in 2010 and it appears that he is now losing interest.  That is the only inference that could possibly be drawn from his failure to see his kiddies notwithstanding that the kiddies were available and have been available at the contact centre since May of this year.

3. I am mindful of the provisions of the Act and those matters which I am required to consider.  I make it quite clear I have considered them.  They have all been considered obviously by Mr E, a very experienced family consultant in this court, and I do not believe that my going through section 60CC seriatim and I adopt his report.  It is quite clear that the children are well looked after, are happy with their mother and I refer to and incorporate in these my reasons for judgment the reports of Mr E.  Regrettably the father has not seen fit to prosecute his case.

4. Consequently I am of the view that the orders as propounded by the independent children’s lawyer which, in effect, placed the children solely in the parental control of the mother are quite proper and I think it is quite generous on the part of the mother that she has offered the father contact with the children in accordance with that contained in the draft order being paragraph number 3, that the children spend supervised time and communicate with the father at all times as may be agreed between the parties.  I take into consideration the matter of Rosa & Rosa [2009] FamCAFC 81. I think that all the circumstances are such that such form of contact is significant and substantial and further that there does not appear on the face of it to be any reasonable impracticality for such contact to take place.

5. I order therefore in accordance with the draft as proposed by the independent children’s lawyer excluding

RECORDED    :    NOT TRANSCRIBED

1. Orders per draft signed by me and placed with the papers.  I will insert that in paragraph 3, “the children spend supervised time and communicate with the father at all times as may be agreed between the parties in writing” and I am crossing out the notation. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 30 November 2012.

Associate: 

Date:  30 November 2012