SABOTA & MACKEY - [2011] FMCAfam 1300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SABOTA & MACKEY

[2011] FMCAfam 1300

FAMILY LAW – Children – parenting orders – where respondent’s lawyers withdrew after adjournment refused – where respondent did not participate in the hearing.

PRACTICE & PROCEDURE – Adjournment – application for adjournment – where respondent sought adjournment because he was not ready to proceed – adjournment refused.

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

Applicant:

MS SABOTA

Respondent:

MR MACKEY

File Number:

SYC 5662 of 2010

Judgment of:

Scarlett FM

Hearing date:

17 November 2011

Date of Last Submission:

17 November 2011

Delivered at:

Sydney

Delivered on:

17 November 2011

REPRESENTATION

Counsel for the Applicant:

Ms Gillies

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:

Sid Hawach & Associates

Counsel for the Independent Children’s Lawyer:

Mr Lee

Solicitors for the Independent Children’s Lawyer:

CBD Legal

ORDERS

The Mother shall have sole parental responsibility for the children, namely:
·[X] (born [in] 2001) and

·[Y] (born [in] 2007)

The children shall live with the Mother.
The children spend no time with the Father.
The Father is retrained from:
(a)Approaching the Mother, the mother’s residence or her place of work;
(b)Approaching the children or entering any educational facility in which they are enrolled, from time to time;
(c)Causing any third person to approach the Mother or children on his behalf.
The Mother is to provide the Father in writing with information about the progress of the children’s education twice per year.
The Mother is to continue to engage with the Brighter Futures Program including any reasonable directions given by that organization as to the frequency and duration of any such engagement or engagement with another program provider.
The Father be at liberty to send the children cards, gifts and letters on the following occasions:
(a)Each of the children’s birthdays.
(b)At Christmas time
(c)Eid
(d)Ramadan
For the purposes of facilitating Order 7 the Father shall cause any cards, gifts or letters to be sent to a post office box nominated by the Mother and the mother shall nominate such a post office within 14 days.
The Mother shall cause all appropriate gifts, letters and cards to be passed to the children and acknowledge to them that they are from their father.
The Father shall ensure that he keeps the Mother advised of a postal address to which she can send notifications required pursuant to order 5.
Any future application filed by the Father where he seeks to vary these orders shall be accompanied by an affidavit sworn by a medical practitioner deposing to:
(a)The Father having completed a course of rehabilitation to address his drug, alcohol issues and anger management issues to the satisfaction of that practitioner.
(b)Details of the treatment undertaken and compliance by the Father of all recommendations of both a therapeutic and medicinal nature and to include six consecutive monthly urinalysis that show no positive result for drugs and alcohol and no requirement for further testing.
That the Father and his servants and agents are restrained from taking or sending or attempting to take or send [X] born [in] 2001 and [Y] born [in] 2007 from Australia.
That the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
That the solicitor for the Mother forthwith notify the Marshall and the Australian Federal Police Family Law Team at Sydney of these orders by telephone and as soon as possible provide a copy of these orders to the Marshall, the Australian Federal Police and the NSW Police.
That the Court requests that until further order the Australian Federal Police place the names of the children, [X] born [in] 2001 and [Y] born [in] 2007 on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.
All previous parenting orders are discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5662 of 2010

MS SABOTA

Applicant

And

MR MACKEY

Respondent

REASONS FOR JUDGMENT

The substantive application before the Court is an application by the Mother for parenting orders. It has been listed for final hearing today and tomorrow. A family report has been prepared and was released to the parties on 2^nd November 2011.
When the matter was listed for hearing, orders were made about filing and serving affidavits, the deadline for which was 1^st November 2011. The children are separately represented by a lawyer and have been for some time.
However, the Respondent Father applies today for an adjournment of the proceedings because, to put it bluntly, he is not ready to proceed. He is not ready to proceed for two reasons.
i)He has not complied with the orders that were made on 11^th January 2011 after an interim hearing. Those orders related to attending at the children contact service at [K], the Father submitting himself to a registered pathology facility for urine analysis for the collection and detection and quantification of drugs and to provide those reports of the urine analysis to the Independent Children’s Lawyer.
ii)The Father has not filed his trial affidavit or affidavits by 1^st November or at all. He has filed, in Court today, an affidavit in which he seeks to explain why he has not complied with the orders made.
What he says is at the time the orders were made he was very sick in hospital suffering from pancreatitis. Once he became well enough he attempted to comply with the orders and commenced the intake procedure with the Interrelate Family Centre at [K]. He attended a parenting seminar in March but later that month he was informed that his nephew was gravely ill in the United Kingdom, his father was ill in Lebanon. He left Australia and travelled to the UK and to Lebanon to see his nephew and his father.
He deposed that he made one effort through the contact centre to see the children before he left but that was not successful. He said that he was told not to see the children only once before travelling overseas because if they knew he had gone for some time that may be disruptive to the children.
He returned to Australia and then contacted the Interrelate Family Centre to recommence the intake procedure. He completed some drug urine tests the results of which he annexed to his affidavit. The samples were collected on 18^th and 31^st August, 7^th and 28^th October 2011.
The tests show that further testing is required for certain drugs, benzodiazepines, on the test of 18^th August 2011, benzodiazepines in the cocaine metabolites in respect of the tests of 31^st August 2011, cocaine metabolites in respect of the test of 7^th October and benzodiazepines in respect of 28^th October 2011. It is not necessary to go further into that except to note that the tests certainly were not conducted in accordance with the regime set out in the very detailed orders that were made on 11^th January 2011.
The upshot of all of this is the Father has not spent time with the children in accordance with the orders although he deposes that he did see the children on 18^th and 19^th June 2011 by going to their home. What he asks is for the Court to allow him further time to comply with the orders and enable him to reconnect with his children on a more regular basis.
Counsel for the Applicant and counsel for the Independent Children’s Lawyer have each told the Court that the application for an adjournment is opposed and I have heard the reasons why the application for an adjournment is opposed.
Certainly the Mother, in an affidavit filed in Court today and also in her trial affidavit, filed on 8^th November made allegations that the Father has said that he would continue to adjourn the proceedings and whether that is the fact or not, it is not open to the Court, at this stage on considering an adjournment application, to make a factual finding.
The findings the Court will make will be based on the material before the Court that does not require testing by evidence. Mr Greenaway of counsel, for the Father, has reminded the Court that this is not a commercial case nor is it a property case. It is a case concerned with the best interests of the children. He submits that the Father should have the opportunity to put his material on and get the matter ready for hearing.
Counsel for the Respondent concedes that the Father has not taken any steps to prepare the case for hearing and also concedes that on the material before the Court the Father could not expect to succeed. That is probably a realistic assessment.
This is not a case where the Father has found himself without legal representation. Certainly he has had the same solicitor since the interim hearing which led to the orders of 11^th January 2011 and he has the services of that solicitor today. He is also represented by experienced counsel.
Certainly, the Father has had some health problems and has not been able to attend Court on occasions. I see no reason to doubt his assertion that he was concerned about the welfare of his nephew and his father and travelled overseas in order to see them and he should not be criticised for that but that does not account for all of the time that has elapsed.
He proposes that it was very difficult for him to comply with the request of urine analysis because he lived in [suburb omitted] and had to travel to [suburb omitted] to undertake testing. He does not drive. Well, there are many people in Sydney who do not drive. They use public transport, they take taxis. Taxis and hire cars are readily available. This was a very important consideration. The requirements to undertake urine analysis was set out in great detail, after a hearing, because of concerns that were raised about the Father’s use of illicit drugs. This testing was not optional. It was a requirement because of the concerns that had been raised right from the early part of the hearing.
Counsel for the Father has said that if a decision was made today, without the Father having an opportunity to put on material, it would lead to a one-sided situation. He submitted that the Father should be given an opportunity to comply with the interim orders. The fact is, the Father has had an opportunity to put on material. He was given that opportunity by means of the orders of 11^th January 2011. Those orders set out what had to be done. He has not complied with them.
It was submitted that the Father should be given an opportunity to comply with the interim orders. He has had that opportunity. He has had, from 11^th January 2011 until now to comply with the interim orders. He has not done so. He has not been denied procedural fairness. He has been competently represented by lawyers. It is difficult to see that he did not understand what his obligations were in order to see the children. He has not spent time with the children, other than the two occasions to which he deposes in his affidavit filed today.
This is not a case where the Father has been prevented from getting the matter ready for Court because of sudden loss of legal representation or illness or some other circumstances. This is a case where the Father’s failure to comply with the interim orders and the Father’s failure to get the matter ready for hearing entirely of his own doing.
In my view, no basis has been made out for an adjournment. The application for an adjournment is refused.
The application before the Court, as I said earlier, is an application for parenting orders for the Mother of two children, [X] and [Y]. The application was listed for final hearing for two days commencing today. Earlier this morning there was an application by the Respondent Father through his counsel for an adjournment of the hearing. I have dealt with that application, and I have refused the adjournment, and I have given reasons for that refusal.
Subsequently, counsel for the Respondent told the Court that he and his instructor had instructions to seek leave to withdraw in the event of an application for an adjournment not being successful. I granted that leave.
The Respondent Father has chosen to withdraw and play no further part in the proceedings; that is, of course, a matter for him. It was made clear to me, however, that the application, as far as its final hearing is concerned, would proceed on an undefended basis, and that is the case.
That does not mean, of course, that the Court ignores the evidence.
The Mother has filed a substantial trial affidavit setting out a number of issues, including serious and unanswered allegations relating to violence by the Father directed towards to, and, to some extent, towards the children. The Mother’s material also refers to her concerns about abuse of illicit drugs by the Father, both of which would cause the Court a considerable degree of concern.
The interim orders made in these proceedings on 11^th January this year, which were made after an interim hearing, were designed to ensure an orderly process whereby the Father could have time with the children under supervision at a contact centre, but which would have involved his participating in a detailed regime of urine analysis to detect the presence of illicit drugs. Regrettably, the Father has not complied with those interim orders over the 10 months or so since those orders were made. It is significant that the family consultant in the family report, which I found very useful, has also expressed concerns about the Father’s drug abuse, referring in particular to what appears to be ongoing use of cocaine.
The Father, of course, as was raised with the Court earlier, did not depose to a trial affidavit, which should have been filed and served by the 1^st of this month. Whether that was done in anticipation that an application for an adjournment would be successful I am unaware. The Father was, of course, legally represented, and has been up until today
The Court still must consider the requirements of the Family Law Act, particularly section 60CA of the Act, which requires the Court to consider the best interests of the children as the paramount consideration. The Court must consider the various matters set out in subsections (2) and (3) of section 60CC of the Act in order to make a determination as to the best interests of the children. The Court must also consider the matters under subsections (4) and (4)(a) of section 60CC of the Act.
The Court must consider the presumption set out in section 61DA, that it would be in the best interests of the children for the parents to have equal shared parental responsibility, and if the Court makes such a finding then it must look at the various matters set out in section 65DAA of the Act.
In this case, it is sought that the Mother should have sole parental responsibility for the children. I am of the view that that is an appropriate order to be made. The unchallenged allegations of violence and drug use by the Father point clearly to the Court making the finding that the presumption does not apply under subsection (2) of section 61DA.
I have considered the matters in section 60CC of the Family Law Act, and though I have given attention, as I said, to the affidavit material and particularly to the family report, which is quite a strong report in its recommendations.
The Independent Children’s Lawyer and counsel for the Mother have tended a minute of agreed orders, which I will mark as exhibit 1. I have read through these orders, and I am satisfied that they have been drafted with a view to enabling the Court to make orders that are in the best interests of the children.
The orders include orders restraining the Father from taking, or attempting to take, the children out of Australia, and placing the children’s names on the airport watch list maintained by the Australian Federal Police. I am of the view that it is appropriate to make such an order.
The Father, on his own evidence to the Court earlier today, has travelled out of Australia and returned on at least one occasion this year. It is my view that orders should be made on a final basis. There must be certainty in litigation, and these proceedings have been on foot since 8^th September 2010.
It is in the best interests of the children that there should be final orders. If at some stage in the future, the Father is in a position where he considers that he should apply for some parenting orders in his favour, then it would be open to him to make the appropriate application, and I note that paragraph 11 of the minute of proposed orders gives consideration to such an application being made; however, that is a matter for another day.
I am satisfied that I should make orders in accordance with paragraphs 1 through to 15 of the minute of proposed orders, and I think for more abundant caution I will also make an order, order 16, that all previous parenting orders are discharged. I will not remove the application from the list of cases awaiting finalisation.
Counsel for the Independent Children’s Lawyer has quite properly sought an order for costs. The situation is that it has been put quite firmly by counsel for the Applicant that her client does not have the financial capacity to meet any orders for costs in respect of the Independent Children’s Lawyer. She does have the care of the two children, and has never received anything in the way of child support. I could not be satisfied that the Mother does have the capacity to meet a costs order, noting the fact that she does have two part-time jobs, but I am told, and I see no reason to disbelief it, they do not amount to the equivalent of one full-time job.
As for the Father, the Court does not have the information. All of the evidence, such as it is, would tend to suggest that he is not in employment. His circumstances are somewhat mysterious and I have been told, I think, by his counsel this morning that his own costs to date have been met by his parents; none of that suggests that he has a capacity to pay. In all the circumstances, I am not satisfied that I should make an order for the Independent Children’s Lawyer’s costs in respect of either party.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 29 November 2011