OWEN & FITCH

[2015] FCCA 2159

FEDERAL CIRCUIT COURT OF AUSTRALIA

OWEN & FITCH [2015] FCCA 2159

Catchwords:
FAMILY LAW – Parenting – failure of the parties to fully participate in the proceedings – where the father does not attend the hearing – where the mother does not seek any relief on a final basis – where significant court resources have been allocated to the proceedings – where the matter is heard and determined on its merits.

Legislation:  

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 65DAA(5), 68LA
Federal Circuit Court Rules 2001, rr.4.01, 4.02, 16.05

U & U [2002] HCA 36

Applicant: MR OWEN

Respondent: MS FITCH

File Number: CAC 1191 of 2012

Judgment of: Judge Harman

Hearing date: 14 July 2015

Date of Last Submission: 14 July 2015

Delivered at: Parramatta

Delivered on: 14 July 2015

REPRESENTATION

No appearance by the Applicant

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Ms Eldershaw

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Penrith

ORDERS

1. Discharge all existing parenting Orders with respect to the children [X] born [omitted] 2004 and [Y] born [omitted] 2007.

2. Discharge the Independent Children’s Lawyer with the Court’s thanks.

3. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

4. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

CAC 1191 of 2012

MR OWEN

Applicant

And

MS FITCH

Respondent

REASONS FOR JUDGMENT

1. These proceedings evoke a nostalgic reflection on the Beatles movie “The Magical Mystery Tour”.

2. The matter has, for a little under three years, motored along the freeway of litigation with the Court driving the bus and each of the parties, and for the limited period either of them had attorneys they as well, sitting at the back of the bus sipping copious quantities of sugary tea and eating fish pie whilst “strange things happen” and the Court determines what the magical, mysterious destination will be and the route to it such that the parties might then arrive refreshed and without having exerted themselves in any fashion at all and with nothing left to do but either admire the wonderous vistas to which they had been delivered or grumble about the destination and ask “Was Paul the walrus?”

3. That analogy is somewhat apt for these proceedings as the only resources that have been expended in moving the matter towards a conclusion are those of the Court and the Legal Aid Commission.

4. The proceedings, on their face, relate to parenting arrangements for two young folk, [X] born [omitted] 2004 and [Y] born [omitted] 2007. 

5. The parties to the proceedings are the parents of those children,

   
   

   Mr Owen, who is their father and the Applicant and Ms Fitch, who is the Respondent and their mother.

6. The father does not appear today.  Ms Fitch, the Respondent, does, although, as a consequence of an inadequacy in the Response filed by her, she does not, in fact, seek any relief. That is not intended to be a criticism directed at Ms Fitch, whose previous lawyer drafted the unhelpful document, purely an observation that, on the basis of that which is before the Court, there would not appear to be a judiciable controversy in any event.

7. On the basis that Ms Fitch does not seek any relief on a final basis and Mr Owen is not present there is little the Court can do to address these proceedings than to conclude them for want of prosecution. 

8. However, I propose to hear and determine the matter on its merits, as that will have a very different outcome as regards the proceedings, their reinstatement, the filing of fresh Applications and Appeal rights. I am satisfied that, on the basis of the evidence that is available, that course is preferable. If nothing else these children deserve finality. 

9. The Independent Children’s Lawyer has met with these children and they would appear, from that which the Independent Children’s Lawyer puts to the Court and that which is contained within a Family Report prepared in these proceedings, to be delightful, albeit somewhat confused and disappointed children. 

10. They are confused and disappointed not through any action on the part of their mother, but through their engagement in this process in a fashion which falls short of “systems abuse” but which certainly creates some concern on a number of levels. 

11. These children have been engaged with an Independent Children's Lawyer and a Family Report writer, their views elicited and clearly expressed, and yet there has been no action taken by the parents – more substantially Mr Owen’s failure than Ms Fitch’s – such as to act upon those views. 

12. The Court is left in a circumstance, due to the failure of the parties, again, principally Mr Owen, to fully participate in the proceedings, whereby the Court is unable to act meaningfully upon those views. Thus, to the extent that these children have been engaged in the process they may well feel that their voice has been elicited but not heard. There would be some validity in their perception, but it is not a matter within the Court’s control, regrettably to act on their voice. It is

    
    

    Mr Owen, primarily, who has caused that disappointment for these children.

Due Process

1. As the matter proceeds in the absence of Mr Owen, I must be satisfied that it is appropriate to do so. I make clear from the outset that I am. 

2. These proceedings were commenced on 6 August 2012 by an Application Initiating Proceedings filed by the then legally represented Mr Owen. The Initiating Application was filed only some three weeks short of three years ago.

3. During the time this case has been before the Court, a number of significant events have occurred and significant resources allocated. These must be considered. 

4. Firstly, the Court has changed its name.  Such is the antiquity of these proceedings. The matter was commenced in the Federal Magistrates Court of Australia and is now determined and concluded in the Federal Circuit Court of Australia, a change which occurred in April 2013, some little time ago.

5. Secondly, the parties and their children have been involved with Family Report interviews in the preparation of the report, a significant expense to the Court and a significant queue of matters awaiting the availability of such a resource.

6. Thirdly, the parties have engaged with an Independent Children's Lawyer at some significant cost to the Legal Aid Commission of New South Wales.

7. Fourthly, the matter has been allocated Trial dates, two days, today and tomorrow, which will not now be necessary. But their reservation for this matter deprives other litigants of their use. Nothing has been listed behind these proceedings today as the matter is of such antiquity that it needed determination and conclusion from the Court’s perspective but, more importantly, the perspective of these children, who are entitled to some finality of arrangements such as can be obtained for them.

8. During the course of the proceedings, Mr Owen’s legal representation was discontinued. That would appear to have arisen at the time that the proceedings were transferred from the Federal Magistrates Court of Australia in Canberra to the Federal Magistrates Court of Australia, as it then was, at Parramatta. At all times since then, both parties have appeared in the proceedings, but it would seem Mr Owen’s participation is now at an end. Whether that is because he is satisfied with that which he has obtained through discussion and negotiation with Ms Fitch or otherwise is unclear.

9. The hearing dates for these proceedings were allocated by Order made 16 October 2014. Mr Owen was present on that occasion. A copy of the Order was sent to Mr Owen at his address for service as advised by him and as filed in these proceedings on 29 September 2014.

10. Mr Owen has filed no material in preparation for this Trial and nor has Ms Fitch. Neither party has filed any document in these proceedings, other than a Notice of Address for Service, since 6 August 2012 and 18 September 2012 respectively. They are the last documents upon this file which have not been generated either for the purpose of a lawyer withdrawing, a party providing an address for service or the Independent Children’s Lawyer diligently discharging their duties through the issue of Subpoena.

11. What the matter represents is a manifest waste of time and public money all instigated by a litigant, Mr Owen, who professed a desire to have the Court hear and determine a plea for relief as to the best interests of his children. 

12. In light of that history, I am satisfied that whilst Mr Owen does not appear today, that he is fully aware of today’s listing.

13. The matter was listed for hearing to commence at 10:00am.  It has not been called until a little after 11:00am. Mr Owen’s name has been called outside the Court and within the Court precincts on a number of occasions. He has not responded. 

14. Ms Fitch indicates that she has attempted to contact Mr Owen this morning and that his phone has not been answered. 

15. There is nothing to suggest any basis for Mr Owen not being present today. 

16. There is nothing to suggest any basis for Mr Owen not filing material as directed.

17. I am conscious that the proceedings, determined in Mr Owen’s absence, are subject to rule 16.05 of the Federal Circuit Court Rules 2001 and thus Mr Owen may seek to exercise a liberty to restore the proceedings to the list. That is a matter entirely for him. That request will be addressed as and when it occurs. 

18. I am satisfied that due process having been afforded to Mr Owen, that the matter can and should conclude. 

19. Ms Fitch is present, albeit she has filed no material.  She desires a conclusion of the proceedings. Ms Fitch indicates, and as is consistent with the inquiries made by the Independent Children's Lawyer, that arrangements have been put in place between these parties and between themselves for time to occur between the children and their father. That time is fairly spasmodic, without any set routine or pattern and for fairly brief periods of time. However, these children do, at least, maintain some relationship with their father.

20. Mr Owen’s failure to attend today is consistent with that which has been undertaken or perhaps more accurately not undertaken by him throughout the proceedings.

21. A number of Orders have been made for the parties to attend Family Dispute Resolution. That has never occurred. 

22. An Order was made on 22 May 2013 for each party to file and serve an Amended Application or Response setting out with specificity the Orders that were, in fact, to be sought by them at final hearing, (their respective Application and Response as filed being entirely defective in that regard). 

23. As I have already indicated I do not say that to be critical of Ms Fitch who is present. But it is the reality of her Response filed 18 September 2012. It seeks a number of interim Orders but does not seek any final relief. That is not consistent with that required by the Federal Circuit Rules 2001[1] whereby a plea for interim relief cannot be made without a plea for final relief, save in limited circumstances of which this is not one. 

    [1] See rule 4.02 of the Federal Circuit Court Rules 2001

24. Those deficiencies might have created some real difficulty in the event that Mr Owen were present and Ms Fitch were not. However, the difficulties compound. 

25. The Application Initiating Proceedings filed by Mr Owen seeks, on a final basis, that the children spend time with him “in accordance with orders made by the Honourable Court”. That is simply not relief capable of being granted and it is concerning that such relief would be sought by a litigant let alone a legally represented litigant. An Application must, consistent with the Federal Circuit Court Rules 2001[2] set out with specificity and particularisation the Orders that are sought from the Court in a form that the Court might Order. 

    [2] See rule 4.01 of the Federal Circuit Court Rules 2001

26. Indeed, that is entirely consistent with the High Court’s decision in U & U [2002] HCA 36 whereby the parameters for the dispute, the judiciable controversy to be determined by the Court, is fixed by the parties by their proposals as set out in their Application and Response respectively. It is also fundamental to affording due process. A party cannot know the case they are to meet, nor prepare to meet or resolve the case, unless they know the Orders being sought.

27. On that basis, and even if Mr Owen were present, the matter could not proceed. I could not be satisfied that Ms Fitch has been afforded due process in circumstances whereby Mr Owen has deigned to disregard the Order made 22 May 2013, a little over two years ago, an Order intended to ensure that Ms Fitch had the benefit of knowing the case that she was to answer, a somewhat quaint but antiquated requirement of due process established some 800 years ago by Magna Carta. 

28. In all of those circumstances, this matter requires conclusion. It has used more than its fair share of resources. To quote Quinn J of the Ontario Superior Court, “these parties have treated the court as their own private banquet table and feasted upon it.  It will not continue”.

29. I am satisfied also that the children’s best interests require the conclusion of these proceedings. These children have had mischief played upon them. They have, as indicated, been involved with an Independent Children's Lawyer and Family Report interviews all for no good purpose. 

30. What is clear from the Family Report interviews is that the children, at paragraph 52 of the Report, present as having an established relationship with their mother and are in the process of developing a relationship with their father. At least in relation to [Y], the younger of two children, there is little memory of her father, the parties having separated when she was very young indeed.

31. What was clear also is that the children, particularly the elder lad, describe their desire to commence and maintain a relationship with their father. Both parties were described in the Family Report as supporting the children’s desires, yet little has happened to progress it, although to the credit of the parties and particularly Ms Fitch, arrangements have been made for time to occur, albeit approximately each three months, without the need for Court intervention. 

32. Presumably that arrangement is one of the bases upon which Mr Owen has effectively abandoned these proceedings, he having obtained at least something that he desired and may have determined to proceed no further. It may have been helpful if the Court or Ms Fitch had been advised of that reality, let alone the Independent Children's Lawyer who is the only person who has expended any effort in preparation for this Trial.

33. As had been discussed by many jurists and notably Kirby J, the cost of litigation extends beyond pure financial cost. There is cost to the parties of their lives being put on hold, cost to the children of uncertainty and confusion and, in this case, unmet expectation and unrequited curiosity as to a relationship.

34. For all of those reasons, I am satisfied that the matter can and should proceed to a final conclusion today and determined on its merits, rather than adopting the readily available and convenient course of dismissal for want of prosecution. 

Evidence

1. I have had regard to each of the documents that have been filed by the parties in these proceedings and comprising the father’s Initiating Application and Affidavit filed on 6 August 2012 and the mother’s Response and Affidavit filed on 18 September 2012.

2. I have also had regard to the Case Outline document provided by the Independent Children’s Lawyer. That is a brief document but it could not be otherwise in the circumstances. The Independent Children’s Lawyer has an obligation, pursuant to section 68LA of the Family Law Act 1975, to form an independent view as to that which is in the children’s best interests based upon available evidence. There simply is no available evidence. And the only evidence ever filed is now nearly three years old. 

3. I have also had the benefit of receiving a Child Inclusive Child Dispute Conference Memorandum dated 14 November 2012, which mirrored to some extent the children’s expressed curiosity as to the resumption of a relationship with their father, together with a Family Report dated 10 October 2014 and which was released to the parties some little time ago. 

4. I do not propose to canvass the evidence of the parties in detail. The material that has been considered is that which is contained within the Affidavits filed by the parties and the Family Report and Child Dispute Conference Memorandum. What is abundantly clear from the evidence of the parties is that neither has filed a Notice of Risk. Accordingly, and consistent with that contained within their brief Affidavits, I am satisfied that there are no allegations of risk. 

5. There has never been any issue in these proceedings regarding an apprehended concern for the children’s safety in spending time with their father. Notwithstanding this, Ms Fitch had sought the time be supervised on an interim basis. That was clearly, as she expressed in her Affidavit and as is consistent with that reported in the Child Inclusive Child Dispute Conference Memorandum, to ensure a “re-introduction” of these children to their father in a way that provided some reassurance particularly as regards [X] who has been diagnosed with Tourette’s syndrome and who was observed by the Family Report writer to have a number of involuntary ticks and other behaviours.

6. The Child Dispute Conference Memorandum had indicated that the time spent with the children by Mr Owen since these parents separated had been “on an ad hoc basis”. That pattern would appear to have continued. The Family Report takes those issues no great distance further.

7. The children were each met with for the purpose of that Report and observed not only with their father, but also with his partner and the child of that relationship, a child which the Court is advised these children had met only once, siblings who are deprived of a relationship with each other due to Mr Owen’s inadequacies in being able to commit to or follow through with arrangements.

8. Notwithstanding that absence of time and practice of relationship, the observations referred to by the Family Report writer suggest that the children clearly have a desire, a curiosity if nothing else, to know their father and to engage with him on an ongoing basis. 

9. The Family Report recommended that arrangements should be made forthwith for time to resume between the children and their father and to continue with regularity. As indicated, time is occurring, perhaps not with the frequency or regularity that the Family Report writer had suggested. The Family Report writer was clearly of the view that time and a relationship would benefit these children. The present time is limited but at least it is something. 

10. Nothing else of an extraordinary nature arises from the Family Report other than the picture of two children who no doubt question in their own mind, if not clearly expressed to the Family Report writer, why their father is not more committed to a relationship with them.

Legislative Pathway

1. I am reminded by section 60CA of the Act that in all that is done, the child’s best interests are the paramount consideration.

2. There is nothing to suggest that these children are not well cared for by their mother and that she does not make good decisions for them. Indeed, that has never been raised in the very frugal material placed before this Court by Mr Owen. I have no concern whatsoever that the children’s ongoing care by Ms Fitch will meet their needs and will do so well.

1. I must then turn to section 60B of the Act setting out the objects and principles which I incorporate herein.

   (1) The objects of this Part are to ensure that the best interests of

   
   children

   are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. The Court is required to ensure that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives. That cannot be achieved as Mr Owen does not participate. There is no basis to make any Order as there is simply no evidence before the Court nor any agitation for any such Order.  As indicated, the Application filed by Mr Owen does not seek any Order capable of being ordered by this Court.

3. I am conscious that in dismissing Mr Owen’s Application on its merits rather than for want of prosecution that it should not be interpreted that it is the Court’s view that it is in the children’s best interests to have no involvement with their father. Clearly, it is in their interests to have a relationship with their father. It is something they desire, something

   
   

   Ms Fitch supports and something which Mr Owen, albeit in unspecified and unparticularised fashion, seeks to prosecute or had sought to prosecute when he was participating in the proceedings.

4. However, there is simply no Order that the Court can make that would ensure that a relationship occurs. If the Court cannot engage Mr Owen to attend Family Dispute Resolution or to file a document it is difficult to understand how the Court would have confidence that Mr Owen would present himself at times, dates and places that were directed, even if he had given notice to Ms Fitch of such an Order being sought by him.

5. The children do have rights as set out in the principles. They are not absolute rights. The children’s rights are subject to the caveat that it must be in their best interests that they be practiced. In this case, there is no evidence to suggest such a caveat arises. 

6. Children have a right to know and be cared for by both of their parents and to spend time on a regular basis not only with their parents, but other people of significance to them, such as their young sister. 

7. There is nothing in the evidence that would indicate that Ms Fitch does not acknowledge, appreciate, understand and support that right. It is really a matter of Mr Owen’s disinterest or, at least, inability, (disinterest perhaps being too harsh a judgment of Mr Owen), to follow through with arrangements and to commit to them. There may be good reason why such difficulties arise, although the new family that he is part of should not be an impediment but rather an incentive for him to pursue relationship with these children if for no other reason that the three siblings knowing each other.

8. I must then turn to section 60CC of the Act and commence with the primary considerations:

   (2)  The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   The latter being prioritised over the former by subsection (2A). 

9. The latter consideration is not in play as neither party raises any issue of risk. It could not be inferred that the absence of relationship at the time that the proceeding were commenced was a risk to the children, nor has it ever been advanced as such. Certainly, things have moved on since that time through practical steps rather than anything that the Court has sought to engage the parties with.

10. The benefit to these children of having a meaningful relationship with both parents cannot be properly assessed on the evidence or at least not fully so. 

11. Clearly, the children’s primary and most meaningful relationship is with their mother. They have lived with her at all times since their birth and certainly since the separation of these parties. Following separation, the father left the State in which the children were living. The mother soon thereafter also left that State but did not travel to the same State or Territory as the father.

12. There are significant difficulties in relation to the logistics between the parties, although they could be readily overcome with will and intent. Those difficulties have not been overcome and thus the benefit to these children of a meaningful relationship with their father has not been achieved.

13. Certainly, the children have a familiarity with their father, their curiosity somewhat sated since the Family Report interviews, but one could not describe from the little time that they spent with him on an ad-hoc basis that they have a meaningful relationship. Accordingly, the Court cannot achieve the primary considerations.

Additional considerations:

Views:

1. These children both expressed some curiosity in engaging with their father.  It is a curiosity that remains substantially frustrated, although at least some steps have been taken. 

2. There is nothing more Ms Fitch can do to assist these children in getting to know their father. She cannot make Mr Owen travel from the ACT to Sydney. She can only accommodate his requests when they are made and the evidence would suggest that this is occurring. 

3. To the extent that the children express views, they are not strong, nor are they based on lived experience. These children’s views are, in reality, more accurately described curiosities. 

4. The relationship between the father and these children is progressing as well as it can.

Nature of the relationship with each parent and other persons 

1. These children have an excellent relationship with their mother. She is the rock upon which their life has been built and upon which their welfare is attached, mollusc-like as it were, in the absence of their father. 

2. The children’s relationship with the father is not fully assessed. The Family Report is as close as one gets to it. At that point in time, the children knew who their father was, had curiosity to spend more time with him and develop a relationship and they seemed comfortable enough in his presence. That is perhaps the best they will achieve. 

3. The children’s relationship with the father’s partner and sister is clearly not developing at the same pace, they having very little interaction and involvement with them. Again, there is nothing the Court can do to change that.

The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time with or communicate with the children

1. The father, Mr Owen, has clearly failed over a significant period and a period whilst the proceedings have been before the Court and subject to the Court’s scrutiny. If Mr Owen cannot commit to a relationship or any other arrangement that would advance and further his cause or his children’s best interests in those circumstances, it is difficult to comprehend how any Order the Court could make would achieve that outcome.

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children 

1. These children are maintained solely by Ms Fitch.

Likely effect of change, including separation from either parent or other person

1. There is no change contemplated, there is no change sought and there is no agitation by either parent for any Order before this Court today. Accordingly, no Order will be made and that will have the effect, beneficially for these children, of affecting no change. 

Practical difficulty and expense: 

1. I incorporate herein section 65DAA(5).

   Reasonable practicality

   (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

2. The parents live some distance apart, Canberra and Sydney, three and a half to four hours drive and a much longer journey if by public transport.

3. The parents’ ability to communicate, whilst it would not seem particularly strong, is certainly effective. They are able to make arrangements and, when Mr Owen deigns to make a request to see the children, it is accommodated by Ms Fitch.

4. It may well be that there are good and valid reasons why Mr Owen cannot commit to more. It may be that he is somewhat indigent, that he does not have the funds to travel, that he is distracted by other arrangements important to enable him to struggle and survive in the present economic climate. It is unclear whether he has work, although, at the time that the proceedings commenced, he had limited employment as an apprentice on a very meagre income. They may all have some very real impact upon his capacity to participate in the children’s lives, although it does not explain why he has not filed material or appeared today.

5. The capacity of the parties to implement an arrangement for equal or substantial time clearly is non-existent. The parties, at best, can make arrangements for ad hoc time three or four times per year and for some hours at a time. Whilst that is better than nothing it is less than ideal for these children. These children will, in years to come no doubt, continue with their curiosity and, one hopes, that they will not begin to turn that curiosity inwards and questioning what it was about them that made

   
   

   Mr Owen less than committed to pursuing a relationship with them. It is not their fault. There is nothing wrong with them. 

6. It is Mr Owen’s failing in not pursuing the relationship with these children who, from everything that is before the Court, (albeit that is from the Independent Children’s Lawyer and Family Report), are suggested to be delightful young people who deserve better from their parents, particularly their father.

7. The impact of arrangements cannot be assessed as no Order will be made. However, the impact upon these children of the frustration of their curiosity and desire for a relationship could be detrimental.

8. There is nothing the Court can do but stand back and wonder why

   
   

   Mr Owen did not participate. Ms Fitch will do what she can to support these children and continue to do as she has since their birth and be their predominant parent.

Capacity of each parent and other persons to meet the children’s needs, including emotional and intellectual needs

1. I have no concerns with respect to Ms Fitch’s capacity to parent these children and, clearly, the limited evidence that she has filed, albeit somewhat antiquated and that which is contained within the Family Report, suggests that entirely appropriate arrangements were put in place.

2. Mr Owen’s capacity may or may not be impacted by some lack of insight on his part as to the children’s emotional needs, having sparked their curiosity, having signalled to them his desire to pursue a strong and healthy relationship with them and then having demonstrated that he was incapable of maintaining that interest or at least that commitment. That does raise some real concern as to capacity and certainly would dissuade me from making any Order other than dismissal of his Application on its merits.

Maturity, sex, lifestyle and background of the children and the parents: 

1. I am satisfied that this is adequately addressed above. The Family Report makes clear that these young children have little knowledge of their father or at least had little knowledge of him at the time of the report interviews some 10 months or so ago. Their knowledge of him is not greatly increased since that time, but they thankfully have the support of their mother and a broader, extended support network to assist them through that and any difficulties it may create for them.

Aboriginality: 

1. Neither parent identifies as Aboriginal or Torres Strait Islander thus nor do the children. 

The attitude of the children and the responsibilities of parenthood demonstrated by each parent

1. Ms Fitch need not be considered in this regard. Her attitude is addressed above and is entirely appropriate. 

2. Mr Owen can be criticised for his attitude in commencing these proceedings, continuing them for such a length of time and then dropping out of them, as it were.

Family violence: 

1. Refreshingly, there are few allegations of family violence and those which are raised are historical and are not prosecuted.

2. A notification was made by a Family Consultant in the early stage of the proceedings and on the basis of matters which had been raised by Mr Owen suggesting that the mother had physically disciplined the children in a fashion that would be a breach of State law. However, no action has been taken by the Department and Mr Owen has not seen it fit to prosecute that allegation further. Thus, I can infer that his commitment to the allegation, whether as to its truth or otherwise, was limited. 

3. There are no family violence Orders in force between the parties. 

Whether it is preferable to make an order that will least likely lead to the institution of future proceedings

1. I am satisfied that the best thing to be done is, as the Independent Children’s Lawyer urges, to simply discharge all existing Orders and dismiss all outstanding Applications and Responses. 

2. That is the course I propose to take. That will bring an end to this sorry saga for these children, Ms Fitch, the Legal Aid Commission and the Court, the latter two having invested resources of one form or another for far too long to entertain an Application which, ultimately, Mr Owen has abandoned and which he could not, on that which he has placed before the Court, possibly prosecute with success in any event. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Harman.

Associate: 

Date:  13 August 2015