ROUTLEY & ROUTLEY

[2015] FCCA 2988

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROUTLEY & ROUTLEY [2015] FCCA 2988

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – sole parental responsibility – two children – son aged 15 years – daughter aged 13 years – where children have had no contact with their father since January 2014 – allegations of family violence – allegation of sexual abuse – where children express opposition to spending time with father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Routley & Routley [2014] FCCA 2265

Applicant: MR ROUTLEY

Respondent: MS ROUTLEY

File Number: SYC 6233 of 2013

Judgment of: Judge Scarlett

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Sydney

Delivered on: 4 November 2015

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: Barber Lawyers

Solicitor for the Respondent: Mr Bistolaridis

Solicitors for the Respondent: Kazi Portolesi Lawyers

Independent Children's Lawyer: Mr Bell

Solicitors for the Independent Children's Lawyer: Stephen W. Bell & Associates

ORDERS

1. All previous Parenting Orders are discharged.

2. The Respondent mother is to have sole parental responsibility for the children X born (omitted) 2000 and Y born (omitted) 2002.

3. The children X and Y are to live with the mother.

4. The children X and Y are to spend time with the father according to their wishes on the first Sunday of each month after Church and Sunday School at the McDonald’s Family Restaurant at (omitted) for a period of one (1) hour on the following conditions:

   (a)Neither child is to be forced to spend time with the father if the child expresses a wish not to do so; and

   (b)The mother must advise the father by 6:00 pm on the previous Wednesday if either or both children expresses a firm wish not to spend time with the father on the following Sunday.

5. Neither parent is to criticise, denigrate or speak badly of the other parent in the presence or hearing of either or both of the said children or permit any third person to do so.

6. The Independent Children’s Lawyer is discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6233 of 2013

MR ROUTLEY

Applicant

And

MS ROUTLEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders relating to the parties’ two children, X, aged 15 years, and Y, aged 13 years. Both children live with their mother, who is the Respondent to the substantive Application. They have not spent any time with their father, the Applicant, since 7 December 2014, when the father went to the Church at (omitted) and saw the boy X in the presence of a priest from another church.

Background

1. The parties were married on (omitted) 1999 and separated under the same roof on 20 February 2013.

2. There are two children of the marriage, both whom live with the mother.

3. X was born on (omitted) 2000 and is now 15 years old. Y was born on (omitted) 2002. She is now 13 years old.

Procedural History

1. The Husband commenced proceedings by filing an Application for property Orders on 24 October 2013. The wife filed a Response on 4 February 2014.

2. On 12 March 2014 the husband filed an Application in a Case seeking parenting orders in relation to the two children. The wife filed a Response to the Application in a Case opposing the orders sought.

3. The parties entered into Consent Orders on 7 April 2014, resolving the property issues between them on a final basis.

4. A Family Report was ordered on 16 June 2014. The Report was completed on 15 September 2014. As a result of certain matters contained in the Family Report, an Order was made on 1 October 2014 that the interests of the children should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).

5. The parties entered into Interim Consent Orders on 28 October 2014 providing that the parties and the children were to attend counselling.

6. Following a number of failures by the father or the solicitors on the record, Barber Lawyers, to attend Court, the father’s parenting Application was dismissed under the provisions of Rule 13.03C on 14 October 2015.

7. The proceedings were listed for undefended hearing on 2 November 2015, on which date the father attended Court unrepresented but with the assistance of an interpreter in the (omitted) language. The Court heard submissions by the father, the mother’s solicitor and the Independent Children’s Lawyer.

The law to be applied

1. When a court is considering making parenting orders, it must consider the matters in sections 60B, 60CA, 60CC, 61DA and 65DAA, if appropriate. All of those matters have been considered.

Conclusions

1. The relationship between the father and mother is very poor and they do not communicate well. It would not be practical for the parties to have equal shared parental responsibility for the children. As the children live with the mother, she should have sole parental responsibility for them.

2. The best wishes of the children are the paramount consideration (s.60CA). The children at this stage are expressing opposition to spending time with their father. This is apparent from the Family Report and from the children’s views expressed to the Independent Children’s Lawyer.  The father says that this is the mother’s doing but the mother agrees that there should be an opportunity for the children to re-establish their relationship with him, if they wish. She proposes that they can spend a period of an hour with him in a public place on one Sunday each month, after Church and Sunday School, if they wish to do so.

3. The father believes that the children need to spend more time with him but it will take time and patience for the children’s relationship with their father to be rebuilt.  

4. I will order accordingly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:     

Date:                  5 November 2015