Rainer and Denham

[2007] FamCA 1561

FAMILY COURT OF AUSTRALIA

RAINER & DENHAM [2007] FamCA 1561

FAMILY LAW – CHILDREN – Shared Parenting – Parenting orders made in absence of father albeit he was professionally represented – Allegations by father against mother of drug usage – Mother acknowledged past use and deposed to reformation – Father’s disgraceful attitude towards the Family Consultant commented upon

Family Law Act 1975 (Cth)

APPLICANT: Ms Rainer

RESPONDENT: Mr Denham

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3014 of 2007

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Melilli

SOLICITOR FOR THE APPLICANT: Martin Irwin & Richards

COUNSEL FOR THE RESPONDENT: Mr Watson

SOLICITOR FOR THE RESPONDENT: Watson & McLeod

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McMahon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Farrell Robertson McMahon

Orders

1. THAT the father’s Application filed 16 March 2007 be dismissed.

2. THAT the orders made 23^rd October 2001 at paragraphs 4(a) and (b) thereof be discharged. 

3. THAT the father spend time with the children C born … July 1994 and H born … June 1997 for half of each school term and long summer vacation holiday period at times to be agreed between the parties.

4. THAT 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 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.

5. THAT otherwise all extant applications be dismissed and removed from the list of cases awaiting hearing.

6. THAT pursuant to Order 38 Rule 26 of the Family Law Rules it was reasonable to brief Counsel.

AND THE COURT NOTES

1. The father has failed to prosecute his Application.

2. The father has given instructions to his solicitor Mr Watson not to oppose the orders sought by the mother in her Response.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 3014  of 2007

MS RAINER  

Applicant

And

MR DENHAM  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me in the regional sittings of the Family Court of Australia at Mildura and concerns two children, H, born in June 1997 and C, born in July 1994. 

2. By way of background, the mother was born in March 1963 and the father was born in April 1963.  From what I can discern from the documents on the court file, the parties had a relationship from 1991 to 2000.  It appears they did not live together and the children resided with the mother at all times.  Subsequently she issued proceedings in the Magistrates Court on 15 March 2001 and following transfer, consent orders were made on 23 October 2001 by Joske J. in the Family Court of Australia. 

3. Those orders provided, in summary, that the children live with the mother and have contact in what I would euphemistically describe as “the usual terms” with their father.  Subsequently he issued proceedings in this court on 16 March 2007 seeking that the children live with him and that he be responsible for their day‑to-day care. 

4. Earlier, however, following an over-holding by the father, the mother issued a Form 2 Application on 19 February 2007 for a Recovery Order with a supporting affidavit filed that day.  I have read that affidavit.  The father filed a Form 2A Response on 28 February 2007 opposing the issue of the Recovery Order and seeking an interim order that H live with him.  He made very serious allegations against the mother.  It is important to raise this fact given that he now no longer proposes to take part in the proceedings this day.  I record that he has the attendance of his legal practitioner, Mr Watson in court who has advised me of that fact.

5. I have read the allegations made by him against the mother in his affidavit which are substantially recorded in paragraphs 3, 21, 22 and 23.  It serves no good purpose to record the content of the deposition save to say that I take it into account in coming to my determination in approving the orders sought this day.  Notwithstanding what he had to say, however, and significantly, it appears that orders were made by Magistrate Dugdale on 9 March 2007 transferring the proceedings to this court and that H be returned immediately to the mother. 

6. There followed  what I could perhaps describe as a confetti of subpoenas returnable in this court.  The mother filed a further affidavit for child welfare purposes on 22 October 2007.  I have regard to the contents of that affidavit also in approving the orders sought by her which are also supported by the Independent Children's Lawyer. 

7. I thought the affidavit was an excellent one in the straightened circumstances in which both parties have found themselves, but in particular that of the mother who made frank and generous disclosures and demonstrated both contrition and remorse concerning her drug history in the past.  I have no doubt that she is presenting as a person determined to meet the future drug-free and be an effective parent to the children.  I congratulate her on the content of her affidavit which clearly expresses the past, the present, and her desires for the future.

8. I have also had the advantage of a Family Report prepared by Ms D which I have carefully read.  Her recommendations are clear, namely that H live with his mother, and that C returns to live with her in accordance with the DHS case plans for her.  It was her further recommendation that the children spend time with their father to the extent he was able to spend time with them during weekends and school holidays.  He, I observe has relocated himself back to Adelaide. 

9. The report was excellent, identifying the applications and proposals of each of the parties together with the issues in dispute.  I observe that when dealing with the mother, it was the observation of Ms D that she presented as a “warm and pleasant” 44-year-old woman who was “respectful in her interactions” with the Family Consultant and “engaged cooperatively” in the interview.  That of course is in sharp contrast to the presentation of the father who was described as "extremely challenging" by the Family Consultant.  In direct contrast to the presentation of the mother, he was “uncooperative and confronting”, and even challenged the Family Consultant's authority to interview the children.  The Family Consultant reported that the father focused on offering complaints and criticisms of everyone he spoke about and demonstrated “limited capacity to acknowledge responsibility” for his part in the family problems.

10. I highlight just those parts of Ms D’s report together with her observation that she found it extremely difficult to have a constructive dialogue with the father who sneered at or verbally attacked her if he was not happy with a question posed by her.  He stormed out of an interview when Ms D attempted to take charge of it.  He would return several minutes later and attempt to complete the interview.  It became untenable for the Family Consultant.  From my reading of the report, I regard his demeanour and conduct as little short of disgraceful, exhibiting a labile and confrontational presentation.  His lack of self control was shameful and his overt disrespect towards the Family Consultant quite reprehensible.

11. I make the observation that Family Consultants ought not be confronted with such an untenable situation and it is deplorable, in my view, that a professional witness and an independent expert is faced with such an unacceptable situation.  The father has chosen not to come to court.  His legal practitioner Mr Watson has calmly submitted that the father wishes to take no further part in the proceedings.

12. It seems to me the orders marked Exhibit “A” proposed are quite appropriate in the circumstances.  I will direct the solicitors for the mother to engross the orders and that my extempore judgment be transcribed, placed on the court file, and made available to the parties.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 14 January 2008