Peters and Bray
[2010] FMCAfam 1154
•8 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PETERS & BRAY | [2010] FMCAfam 1154 |
| FAMILY LAW – Children – parenting orders – where respondent did not attend court – where respondent did not file response or an affidavit as directed – parental responsibility. |
| Family Law Act 1975, ss.11C, 11F, 60CC Federal Magistrates Court Rules 2001, rr.13.03A, 13.03B |
| Applicant: | MS PETERS |
| Respondent: | MR BRAY |
| File Number: | SYC 4550 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 October 2010 |
| Date of Last Submission: | 8 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Maroun |
| Solicitors for the Applicant: | Jennifer Weate & Associates |
| Respondent: | No Appearance |
ORDERS
That the children namely, X born (omitted) 1998 (“X”) and Y born (omitted) 2002 (“Y”) live with their mother at Property H.
That the Mother has sole parental responsibility for the care, welfare and development of the children.
That the children shall spend time with the Father as follows:
(a)Each alternate weekend, from the end of school Friday commencing Friday 22 October 2010, to be collected from school, until the immediately following Sunday at 6:00pm, whereby the children are to be delivered to the maternal grandmother namely, Ms J at (omitted).
(b)For one half of the school holidays at the conclusion of terms 1, 2 and 3 as agreed and in the absence of agreement the Father shall have the first half in even years and the second half in the odd years.
(c)During the Christmas School holidays, the children will reside with their parents on a week about basis or as otherwise agreed to between parties.
(d)From 12;00pm on Christmas Eve to 2;00pm Christmas Day, each even numbered year, commencing 2010 and from 12:00pm on Christmas Day to 2;00pm Boxing Day, each odd numbered year, commencing 2011.
(e)That in the event that the children are living with their mother on Fathers’ Day then the children shall spend time with their father from 9:00am to 6:00pm.
(f)That in the event that the children are spending time with the Father on Mothers’ Day then the children shall spend time with their mother from 9:00am to 6:00pm.
(g)That the Father shall spend time with the children on their birthdays for a period of three (3) hours, to be agreed upon between the parties.
(h)The children are to spend time with each parent on their respective birthday.
For the purpose of these orders, school holidays will be deemed to commence at 9:00am on the day following the last day of school and conclude at 5:00pm on the day before school commences.
The parties shall advise each other as soon as is reasonably practicable of any matters affecting the children’s state of health or any medical issues which may arise with the children whilst in their care, and/or any medical appointments arranged for the children’s attendance in the event of any serious illness or injury suffered by the children.
All care providers in respect of the children, including but not limited to doctors, dentists and other health care providers and teachers, and other education care providers, are hereby authorised to provide to either parent at his or her request any information sought about the children.
The Father shall not under any circumstances and without the consent of the Mother, remove any of the children from their schools or the Mother place of residence, other than for the purpose of collection for the commencement of time the children are to spend with him.
The parties are restrained from denigrating the other party or allowing any other person to denigrate the other party within earshot of the children.
The parties are restrained from behaving in an aggressive and/or abusive manner to the other party.
Each party is to refrain from consuming excessive amounts of alcohol while the children are in their care, or in the period 24 hours immediately prior to any period that the children will spend in their care.
IT IS NOTED that publication of this judgment under the pseudonym Peters & Bray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4550 of 2010
| MS PETERS |
Applicant
And
| MR BRAY |
Respondent
REASONS FOR JUDGMENT
The application before the Court today is an application by the Mother of two children, X, born on (omitted) 1998, and Y, born on (omitted) 2002, for orders that they should live with her, that she should have sole parental responsibility for the children, and that the children should spend time with their Father as defined in the application.
The application was filed at this Court on 20th July 2010 in circumstances of some urgency, and was returnable on 26th July 2010. The Applicant appeared on that day and the Respondent did not. The Respondent did, however, attend Court on 6th September 2010. On that date, I ordered the Respondent to file a response and an affidavit, setting out the facts upon which he sought to rely by 27th September 2010.
I also made an order that the parties should attend a Child Dispute Conference with a family consultant, under the provisions of s.11F of the Family Law Act, and that that conference should be reportable under the provisions of s.11C. The conference was scheduled for 11:00am on Friday 24th September 2010 and both parties attended.
A discussion took place between the parents and the family consultant separately, and also together, which the family consultant noted was at the Mother’s suggestion.
The family consultant reported that no agreement was reached about parental responsibility, or about the times when the children would spend with the Father. The family consultant reported the Father indicated that he would be willing to agree to alternate weekends and school holiday time.
While the orders applied for involved both of the children, and the Father indicated that he wanted time with both of them, the parents both said that X did not like going to his father’s on Saturdays because he did not like attending church services. The family consultant noted that the Father did not seem to object to that.
The issues that the family consultant reported as being in dispute were parental responsibility, time during the week, and the Father’s wish to spend time with the children for a couple of hours after school on a couple of days a week. What is also concerning, however, is that the family consultant noted that the Father indicated that he would not be participating in the family law proceedings.
The Mother set out her views and concerns, which are basically those to which she deposed in her initiating affidavit, and which she also illustrated in her oral evidence to the Court today.
The Father did not attend court today. This is hardly surprising, as he had indicated to the family consultant that he would not be participating in the proceedings. He has given no reason as to why he has chosen to take that step. The Father did not, as I indicated, file a response or an affidavit setting out his side of the matter, either by 27th September 2010, when he was ordered, or at all.
I am of the view that the Court should apply the provisions of its own rules, and under rule 13.03A I am satisfied that the Respondent Father can be regarded as being in default. In particular, he has failed to file a response before the time for him to file a response has expired; he has failed to comply with an order of the Court in this proceeding, namely, to file documents; and he has failed to file and serve a document required under these rules, being an affidavit. He has also failed to defend the proceeding with due diligence or at all.
Accordingly, I am applying the provisions of rule 13.03B of the Federal Magistrates Court Rules, and as the Respondent is in default I am satisfied that the Court has the power under rule 13.03B(2) to give judgment or make any other order against the Respondent. To my mind, there is no point in adjourning the proceedings and making yet another order that the Respondent file any documents.
I have proceeded to take evidence from the Applicant about her concerns for the children. The Court is obliged to place the best interests of the children at the forefront of its consideration; the best interests of the children are the paramount consideration. There are primary considerations under subsection 60CC(2) of the Act and additional considerations under subsection 60CC(3) of the Act.
The Mother’s evidence has gone directly to those issues. I am of the view that she has a good relationship with the children and that she has concerns for their welfare. She acknowledges the fact that the children have a relationship with the Father and that that relationship should be an ongoing one; however, she has expressed significant concern, both in her oral evidence and her affidavit evidence, that the Father appears to have a preference for the younger child Y over the older child X.
The Mother expressed some regret that X did not receive as favourable treatment from his father as Y did. Nevertheless, the Mother acknowledges the need for the Father to have an ongoing continuous relationship for the children.
The Mother’s concern is that there needs to be some routine and stability in the children’s lives. She is seeking final orders because the Father has set his own timetable and, in fact, made his own rules as to when one or both of the children are going to spend time with him. On her evidence, the Father does not make arrangements for the children to spend time with him, but he will attend the premises, or at the school, and just remove the children.
The Mother has great concerns about that. She needs to know where her children are. She needs to know that if the children are not with her that they are, indeed, with their father. There has been evidence before the Court that she has contacted the police and that the police have undergone a welfare check. It is easy to understand why.
I am satisfied that it is necessary for the Court to make orders, as sought in the initiating application, setting out clearly and precisely when the children should spend time with their father. The Mother suggests that weekends with their father should commence from Friday the 22nd of this month, noting that the children are currently with the Father at this time. This, indeed, on her evidence, was not because of an arrangement between the parties, but because the Father took the children and has not yet returned them.
As to where the children live, there is no issue but that the children will live with the Mother. There is an issue between the parties as to the question of parental responsibility. I have given consideration to parental responsibility, and I am of the view that the Mother should have sole parental responsibility. This is not a case where equal shared parental responsibility would be in the best interests of the children, because it is clear, on the evidence before me, that the Father sets his own rules and makes his own decisions.
Equal shared parental responsibility is only going to work if the parents can, in fact, communicate and agree about what is necessary to be done in the best interests of the children. For the Father to take the unilateral actions, which on the evidence before me he has done, indicates that equal shared parental responsibility would not be, as I said, at all in the children’s best interests.
It is also a matter of concern that the Father has elected not to participate in these proceedings. If he had legitimate concerns, he could have attended Court; he could, like the Mother, have given evidence before the Court and set those concerns out so that the Court could assess them. He has chosen not to do so.
I am clearly of the view that the Mother should have sole parental responsibility for the children, and that they should live with her, and that they should spend a defined time with their father as set out. The Mother seeks other orders relating to the parties advising each other as soon as is reasonably practicable about any matters affecting their children’s state of health or medical issues, which again seems to be an appropriate consideration and one of the responsibilities of parenthood.
The Mother seeks an order, authorising care providers in respect of the children, including but not limited to doctors, dentists and other healthcare providers and teachers and education care providers, to provide to either parent, at their request, any information about the children. This seems to me to be appropriate and in line with the parents’ responsibilities towards their children.
It is particularly important that the order that the Mother seeks, that the Father should not under any circumstances, without her consent, remove the children from their school or from her place of residence, other than for the purposes of the collection for the commencement of time for the children to spend with him, are clearly in accordance with these orders. The Mother must know when the children are going to be with their father, and the Father cannot just make his own unilateral decisions to take them whenever he likes.
I am of the view that the parties should be restrained from denigrating or criticising each other, or behaving in an aggressive manner towards each other, and to refrain from consuming excessive amounts of alcohol while the children are in their care or immediately beforehand.
The orders, therefore, that I propose to make will be orders 1 to 10 set out in the final orders sought in the initiating application. The orders, however, will be spelled out in full, and I will direct that the solicitor for the Mother forward a sealed copy of the orders to the Father by ordinary prepaid post within seven days.
I will order in respect of order 3.1 that is sought that after the words - I will insert after the words “each alternate weekend from the end of school Friday” the words “commencing Friday, 22 October 2010” will be included so as to provide for a set starting time.
It is my intention, however, that the parties should each have a full and comprehensive sealed set of orders setting out their rights and obligations in full, and if the Mother has concerns about the Father’s unilateral actions in either taking the children, or, perhaps more concerning, not returning them in time, that she will then be able to seek the appropriate orders from the Court to enforce these orders which this Court has made. I will make those orders accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 October 2010
0
2