PERSALL & LENAHAN

[2015] FamCA 305

FAMILY COURT OF AUSTRALIA

PERSALL & LENAHAN [2015] FamCA 305

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – where the father sought an adjournment on the morning of the hearing – where the mother sought to have the matter heard on an undefended basis – where the father and the Independent Children’s Lawyer oppose the matter proceeding by way of undefended hearing –application for adjournment granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Persall

RESPONDENT: Ms Lenahan

INDEPENDENT CHILDREN’S LAWYER: Glennis Court

FILE NUMBER: PAC 5458 of 2011

DATE DELIVERED: 13 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Breeze

COUNSEL FOR THE RESPONDENT: Mr Weaver

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Court of John Spence & Associates

Orders

1. The matter be adjourned to 22 May 2015 at 11.00am hearing of the Application in a Case (estimate 1 hour).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Persall & Lenahan 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 PARRAMATTA

FILE NUMBER: PAC 5458  of 2011

Mr Persall

Applicant

And

Ms Lenahan

Respondent

REASONS FOR JUDGMENT

1. This is an application made by the mother to have a matter which has been on foot for a number of years dealt with in accordance with the Rules as if it were an undefended hearing.

2. These are proceedings in relation to the two young daughters of the Applicant and Respondent which were initiated by the father in late 2011.  His application has dramatically changed over time though his final position that he now seeks was put from the Bar table today as opposed to being contained in an Initiating Application in accordance with the orders that were made on the last occasion.

3. To a large extent the matter has remained unresolved because the father has been in prison and it has been listed on at least two occasions for a final hearing.

4. On the last occasion the matter was listed for what was anticipated to be an undefended final hearing as it appeared to be believed that the father was no longer participating in the proceedings.  He did, however, appear on that occasion.  It was made very clear to him that the matter would proceed on that basis unless he filed an amended Initiating Application which he has not done in accordance with those orders.

5. Accordingly, today the mother’s legal representative wishes for the matter to be dealt with as if it were undefended.  This is opposed by both the father and the Independent Children’s Lawyer.

6. The mother’s application essentially relies upon the proposition that having proceedings constantly undetermined is not in the best interests of the children and relies upon decisions of the Full Court of the Family Court to that effect.  There is no doubt that proceedings themselves can have a destabilising and detrimental effect upon children.

7. The only problem with the mother’s application and which has particularly been pointed out by the Independent Children’s Lawyer is that it leaves the issue of the children’s time with their father unresolved or in particular in the hands of the mother.  I have got some concerns about that occurring for a number of reasons.

8. First of all, there is the concern that it will give rise to further litigation and that is one the best interest considerations that a Court may take into account.  It is clear that the father has at all times agitated that the children should at least spend some time with him and it also seems that it is consistent with the mother’s position because she has made them available to him and she seems to recognise that spending some time with him does give them some form of benefit.

9. I have some concerns, which I have voiced on the last occasion, about the mother’s judgment in that regard and the way in which the children were made available to the father and whether it was appropriate and in the best interests of the children for them to be reintroduced to their father and particularly in the manner that was chosen by the mother.  She may have been doing her best but in the absence of some form of assessment and some really well thought out ways for that time to occur, I have some concern.  I also accept the submissions made by the Independent Children’s Lawyer that the mother asserts that there has been a history of violence that has put her in a position where she is in effect to be negotiating with the perpetrator.  If there is that significant imbalance of power which that history of violence may suggest, it may be a very difficult position for her and have a flow-on effect for the children.

10. Part of the resolution of this matter needs to be for some satisfactory arrangements to be made for the children to spend time with their father.

11. I am not adjourning the matter for any of the reasons agitated by the father.  The father has had plenty of time, he has not put in any adequate explanation whatsoever for his delay and not been able to bring this matter to a completion by the simple filing of an Amended Initiating Application especially where the orders he now seeks are dramatically different from those he sought years ago.

12. I find that his entire position that there are concerns about the safety of the mother and her parenting capacity is completely inconsistent with his position that the children live with the mother and spend time with him and it seems that the only issue that needs to be resolved in this matter is the spend time with arrangements.

13. For those reasons I decline to deal with the matter as if it were undefended in accordance with the Rules.

14. I do grant an adjournment but this matter will be listed for hearing in light of the father’s now stated position solely on the issue of spending time with the father.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 April 2015.

Associate: 

Date:  29 April 2015