SADKO & COLEMAN

[2016] FamCA 348

FAMILY COURT OF AUSTRALIA

SADKO & COLEMAN [2016] FamCA 348

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – where the applicant has failed to comply with court orders – where the applicant failed to appear at the hearing – consideration of the principles in Division 12A of the Family Law Act 1975 (Cth) – leave granted to proceed on an undefended basis.

FAMILY LAW – CHILDREN – FINAL ORDERS – Application for final parenting orders heard on an undefended basis – where the mother’s whereabouts are unknown – where the mother failed to appear at the hearing – where the mother has a history of mental illness and illicit drug use – where the father seeks to return to his country of employment with the child – where the child had previously been living primarily with the father – orders made that the father have sole parental responsibility, that the child live with the father and that the child have telephone and skype contact with the mother.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Sadko

RESPONDENT: Mr Coleman

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 3290 of 2012

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 April 2016

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Brown QC

SOLICITOR FOR THE RESPONDENT: Blackwood Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. The hearing of this application be abridged to an urgent hearing this day.

2. The matter proceed on an undefended basis.

3. All previous parenting orders are hereby discharged.

4. The father have sole parental responsibility for the child of the relationship M born … 2008.

5. The father shall when exercising sole parental responsibility for the child as provided for in paragraph 4 hereof, notify the mother by way of email of the details of the decision to be made and shall thereafter consider the mother’s view in relation to that issue, if any, prior to making the decision in question.

6. Except in cases of emergency, the father shall give the mother the details described in paragraph 5 hereof no less than 28 days prior to the making of that decision and the mother shall provide any view regarding the decision to be made within 14 days of receiving the details from the father.

7. The child live with the father.

8. The child spend time and communicate with the mother as follows:

   (a)by Skype or telephone for approximately 15 minutes, three evenings per week, Country Z time; and

   (b)at all other times as agreed between the parties.

9. Paragraph 28 of the orders made by Bennett J on 20 December 2015 in this Court and paragraphs 10 and 11 of the orders made by Judge Jones on 24 December 2015 in the Federal Circuit Court of Australia be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the name of the child M born … 2008 from the Airport Watch List at all points of international arrivals and departures in Australia.

10. As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

11. The Registrar of the Melbourne Registry of this Court forthwith deliver the passport of the child M born … 2008 to the father.

12. The father shall do all such things as are necessary to authorise any school that the child attends, to send to the mother copies of all school reports and school photographs relating to the child at the expense of the mother.

13. Each parent shall keep the other parent informed of their current telephone number and any changes thereto.

14. Each parent shall keep the other parent informed of their current postal and email addresses and any changes thereto.

15. Each parent keep the other parent informed as soon as is reasonably practicable of any:

    (a)serious medical problems or illnesses suffered by the child;

    (b)medication that has been prescribed for the child that needs to be taken while the child is in the care of the other parent; and

    (c)other significant matters relevant to the welfare of the child.

16. The father shall forthwith do all things as are necessary to “seal” a copy of these orders in the appropriate court in Country Z that deals with family law matters.

17. The order for the appointment of the Independent Children’s Lawyer be discharged.

18. The solicitors for the father cause a sealed copy of the orders made this day to be forwarded to the mother as follows:

    (a)by email to email address …; and

    (a)by pre-paid post to her last known address at B Street, Suburb L in the State of Victoria.

19. The solicitors for the father cause a sealed copy of the orders made this day to be forwarded to the maternal grandmother by email to email address ...

20. The reasons for judgment of Justice Macmillan be reserved.

21. All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES THAT

A.The father currently lives in City Y, Country Z and the child will be living with him in Country Z.

B.The child will attend the G School in City Y, Country Z, or any other school as deemed appropriate by the father.

C.The parties intend that these telephone calls or Skype calls will occur at approximately 6.00 pm Country Z time, prior to the child’s evening at bedtime routine and the father shall facilitate the child participating in those Skype and telephone calls and will not monitor those calls.

D.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, 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 the 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadko & Coleman 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 MELBOURNE

FILE NUMBER: MLC 3290 of 2012

Ms Sadko

Applicant

And

Mr Coleman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 6 April 2016 I made orders listing this matter for a first day hearing before me on 29 April 2016. However on 18 April 2016 the father Mr Coleman (“the father”) filed an Application in a Case that the matter proceed on an undefended basis, that the Court make final orders in accordance with his Amended Response to Initiating Application filed that day and that all time be abridged to enable the matter to be heard no later than 15 April 2016.

2. The father’s Application in a Case was listed for hearing before me at 9.00 am on 20 April 2016 and on that date I abridged all times to enable that matter to be heard and determined that day and the matter proceeded on an undefended basis. At the conclusion of the hearing I discharged all previous orders and made final orders that the father have sole parental responsibility for the child M (“the child”), that he live with the father, noting that the father currently lives in City Y and was intending to return to City Y with the child, and discharged the Airport Watch List order permitting the father and the child to leave the Commonwealth of Australia. I also made orders that the child spend time and communicate with the mother Ms Sadko (“the mother”) by skype or telephone and at other times as may be otherwise agreed by the parties. I reserved my reasons for those orders and these are those reasons.

Documents Relied Upon

1. The father relied upon the following documents:

   ·Application in a Case filed 18 April 2016;

   ·Affidavit of the father filed 18 April 2016;

   ·Affidavit of Attempted Service filed 19 April 2016;

   ·Affidavit of Mr V filed 20 April 2016; and

   ·Children and Parents Issues Assessment of Ms T dated 9 February 2016 (“s 11F Report”).

2. The Independent Children’s Lawyer did not file any documents but like the father relied upon the s 11F Report prepared by the family consultant Ms T.

3. The matter proceeded by submission with some limited evidence from both the father and his solicitor in relation to the attempts made to contact the mother and her knowledge of the hearing before me.

4. The standard of proof is the balance of probabilities however in this case the father’s evidence is unchallenged. In those circumstances unless otherwise indicated the statements of fact are to be treated as findings of fact.

Background    

1. The father was born in 1972 and is 44 years of age. He is generally in good health.

2. The mother was born in 1974 and is 42 years of age. The father’s case is that the mother has a long history of mental health issues, has been diagnosed as having a borderline personality disorder, major depression and has recently undergone treatment for an addiction to the drug ICE.

3. The parties commenced a romantic relationship in or about February 2008 and commenced cohabitation in or about May 2008. They separated in February 2012.

4. The child M is the only child of their relationship. The child was born in 2008 and is seven years of age.

5. There had previously been proceedings in the Federal Circuit Court between the father and mother with respect to the child’s care and on 29 October 2013 Judge Hartnett made orders that he live with them on a week about basis.  The father’s evidence is that they loosely followed the week about arrangement albeit that the mother struggled to care for the child during her week and would telephone and ask either the father or his parents to care for the child.

6. In September 2014 the father obtained a position as a senior executive of a company in Country Z. Thereafter he started travelling between Country Z and Australia on a regular basis and the child was cared for by the father, his parents or the mother. The child spent time with the father in both Australia and Country Z.

7. The father says at paragraphs 17 and 18 of his Affidavit filed 18 April 2016 that in early August 2015 the mother told him that she had been using ICE, was not coping and that the Department of Health and Human Services were investigating, having received notifications in relation to her drug use and her care of the child.

8. The father and mother agreed that the mother and the child would relocate to Country Z and live with the father at his home. The mother and the child arrived in Country Z on 7 August 2015 and the child was enrolled at the G School in City Y.

9. The father deposes at paragraphs 21 to 23 of his Affidavit filed 18 April 2016 that on 17 August 2015, following a psychotic episode during a family holiday, the mother checked herself into a drug rehabilitation centre in Country W called XX Drug Rehab (“XX”). The mother spent approximately two months at XX before returning to City Y. During the time she spent in rehabilitation the child lived with the father in City Y attending the G School.

10. The father says at paragraph 24 of his Affidavit filed 18 April 2016 that on 14 November 2015 the mother suffered another serious psychotic episode during which in the presence of the child she cornered the father in the bedroom threatening him with a knife and threatened to kill herself. Following another psychotic episode of what the father described as extreme rage on 19 November 2015 he left the house with the child and on 21 November 2015 sent the mother a message requesting that she leave the house.

11. On 10 December 2015 while the father and the child were at a public location the mother came to the location with what the father described at paragraph 27 of his Affidavit filed 18 April 2016 as “... two large, military looking men”, who stood over the father while the mother picked up the child and left the location with him. After the mother had removed the child from the father’s care she gave several media interviews. Thereafter the father did not know the whereabouts of the mother or the child and the mother was “on the run” from the Country Z police. 

12. On 21 December 2015 the mother filed an Application in a Case in the Federal Circuit Court seeking inter alia the issue of an Australian passport for the child. On 23 December 2015 the father filed an Initiating Application in the Federal Circuit Court at an interim level seeking a recovery order for the immediate return of the child to his care.  The father’s application was heard by Judge Jones on 24 December 2015 who made orders on an ex parte basis for the child’s return to the father within 24 hours, a recovery order to issue in the event that he was not returned and an order placing the child’s name on the Airport Watch List. The matter was otherwise transferred to this Court.

13. The mother did not comply with the order made by Judge Jones on 23 December 2015 and on 29 December 2015 Bennett J made orders to facilitate the child’s return to Australia and further ordered that upon his return he live with the father and mother on a week about basis. Her Honour also ordered that an Independent Children’s Lawyer be appointed and a s 11F report prepared. The child was returned to Australia and the father’s care on 1 January 2016.

14. On 12 January 2016 the father filed an Application in a Case seeking orders permitting him to return to Country Z with the child. In support of that application he adduced further evidence of the mother’s mental health issues and drug addiction. In anticipation of the hearing of that Application in a Case he did not return the child to the mother as ordered on 11 January 2016 as a result of which on 13 January 2016 the mother filed an Application in a Case for a recovery order.

15. Both the father and the mother’s Applications in a Case were listed for hearing on 14 January 2016 before Stevenson J and on that date the father was ordered to deliver the child to the Court by 12.00 noon that day.

16. The parties attended appointments with Ms T in early February for the preparation of the s 11F Report which was released on 9 February 2016.

17. The matter was listed for interim hearing on 15 February 2016 and on that date Bennett J made orders that the child live with the father and the mother on a week about basis, conditional upon the mother and the child residing at the home of the maternal grandmother, Mrs S. As the father was travelling to and from Country Z for the purposes of his employment the order also permitted the child to be cared for by the paternal grandparents if he was not able to be in Australia during the child’s week with him.

18. Orders were also made requiring the mother to file an amended application and any affidavits in support of that application by 4.00 pm on 11 March 2016 and the father was required to file responding material by 4.00 pm on 18 March 2016. The father and the mother were also ordered to attend upon Dr N for psychiatric assessment. Appointments were made for the father to attend on 8 March 2016 and the mother on 9 March 2016.

19. The father attended his appointment on 8 March 2016, however on 10 March 2016 his solicitors received an email from the Independent Children’s Lawyer advising that the mother had not attended her appointment on 9 March 2016 and that the maternal grandmother had contacted Dr N’s rooms and told them that the mother “had collapsed as a result of intense pain and would not be attending” (paragraph 46 of the father’s Affidavit filed 18 April 2016).

20. On that basis the Independent Children’s Lawyer requested that the mother provide a medical certificate as to her condition, the cause of that condition and the required treatment, asked to be advised as to the child’s condition and who was caring for him given the mother’s ill health, requested that the mother undertake a supervised drug screen and that she produce the results of the supervised drug screens previously requested on 20 January 2016. The Independent Children’s Lawyer also requested that the mother make a new appointment to see Dr N and pay the non-attendance fee of $500.

21. The mother did not file an amended application or any affidavits in support of that application as ordered nor did she make a new appointment or attend upon Dr N or undergo a supervised drug screen as requested by the Independent Children’s Lawyer. 

Service

1. On Thursday 7 April 2016 the father’s solicitors received a letter from the mother’s solicitors, Clancy & Triado advising that they no longer acted on behalf of the mother and that they had provided the mother with a Notice of Address for Service for filing.

2. The father sought and was granted leave to file the Affidavit of Mr V, a personal assistant at Blackwood Family Lawyers, in which Mr V deposed at paragraph 2 that on 18 April 2016 he sent the mother sealed copies of the father’s Amended Response to Initiating Application, his Application in a Case and his Affidavit in support of that application all filed that day to the mother by email. Mr V also deposed at paragraph 4 of his Affidavit filed 20 April 2016 that he attempted to serve the documents personally upon the mother at the home of the maternal grandmother, the mother’s last listed address.

3. The process server, Mr H, in the Affidavit of Attempted Service filed 19 April 2016 deposed that he was unable to personally serve the documents upon the mother because:

   At the time of my attempt, I spoke to a female occupant, who identified herself as [Mrs S] and advised that she is the mother of [Ms Sadko]. [Mrs S] further advised that the Respondent no longer resided at the address, having moved out approximately two to three weeks ago. [Mrs S] stated that she and her daughter had a falling out and she did not know where the Respondent had moved to. [Mrs S] advised that the Respondent could be contacted on mobile number …. I subsequently called [Ms Sadko] on the obtained mobile of …, but found that it had been switched off, with the call diverting to a generic voicemail system. I left a message with my contact details requesting an urgent return call.

   To date, I have not received a response to the call made to or the message left on the Respondent’s mobile.

4. The father gave evidence that the mother had two telephone contact numbers. The first of those numbers was the number given to Mr H by the maternal grandmother. The father said that he had last received a text message from the mother on that number on 8 March 2016 and that he had sent her a message on 14 March 2016 but had not received a reply. He said that the last text message he had received on the second number which was … was on 14 January 2016.

5. The maternal grandmother attended the hearing, albeit it was towards the end of the hearing. She advised the Court that she had received a text message from the mother that morning and that the mother was aware of the hearing but had said that she did not know if she would appear. The maternal grandmother also said that although she had had some contact with the mother by way of text messages she did not know where the mother was.

6. The mother was called both at the commencement of the hearing and again shortly after 10.00 am but did not appear. I am satisfied that the mother was served with the father’s Amended Response to Initiating Application filed 18 April 2016 setting out the parenting orders he sought and his Application in a Case filed 18 April 2016 seeking to the proceed undefended and that time be abridged, and that she was aware of the hearing before me on 20 April 2016 and chose not to participate in the proceedings.

7. This is perhaps not surprising in circumstances where the mother has not seen the child since 14 March 2016 and having regard to the correspondence sent by her solicitor to the father’s solicitor and the Independent Children’s Lawyer on 18 March 2016 in which they advised as follows:

   Our client has been carefully considering the options as to where [the child] lives and in turn the time that he spends with and communicate with the other parent.

   [The child] has been displaying increasing levels of opposition, and aggression, towards both our client and her mother recently while in our client’s care. He has also directly expressed both his understanding that he will be living with [Country Z] [sic], and his desire to so live there.

   Of the utmost importance to [the child’s] wellbeing at this time is stability. This would be most clearly provided by [the child] being in the primary care of one parent, rather than the present arrangement or an arrangement involving frequent transition. For a multitude of reasons, detailed briefly herein, our client now accepts that it maybe be in [the child]’s best interests to live primarily with [the father] in [Country Z].  

   [The Child]’s Views

   While our client does not believe that [the child]’s own views are reflective of his best interests, noting his young age, she does accept his desire to live in [Country Z]. She is unwilling to oppose those views amid concern that it could lead to [the child] significantly resenting his mother, and adversely affecting that relationship in the short to medium term…..

   Parenting Proposal

   Our client proposes the following:

   ·[The child] return with [the father] to [Country Z] and be enrolled in the [G] School in [City Y] as soon as practicable.

   ·[The child] and our client communicate via telephone or skype for approximately 15 minutes 3 evenings per week, [Country Z] time (ie 6pm or thereabouts, prior to [the child’s] evening and bedtime routine)..

   ·[The child] leave [Country Z] to visit our client 6 times per year as follows – with reference to the school holiday periods as set out in the [G] School Calendars (Annexure 10 of [the father’s] affidavit of 12/1/2016 as to the 2015/16 year) enclosed herein for ease of reference for both the 2015/16 and 2016/17 years:

   oFor a three week period between the [Country Z] school year during early July and mid-August each year;

   oFor 1 week during the Term 1 break in or around mid-October each year;

   oFor approximately 2 weeks during the Term 1-2 break from mid-December to early January (i.e. over Christmas and potentially New Year, depending upon the commencement date of the new term in [Country Z]), with Christmas itself to be shared between our client and [the father] in the event [the father] were to return to Australia to spend time with his own family during such holiday period;

   oFor 3-4 days during the Term 2 mid-term break in or around mid to late February each year;

   oFor 1 week during the end of Term 2 approximately two week break which coincides with Easter in or around April each year; and

   oFor approximately 1 week during the May Term 3 mid term break.

   ·[The father] bear the costs of all flights for [the child] as outlined herein, including appropriate insurance.

   ….

   Other Matters

   In light of our client’s amended position we have not sought the rescheduling of the anticipated appointment with Dr [N] [sic]. We also suggest that the anticipated appointments for all parties with Mr [P] on 18 April 2016 be cancelled forthwith so as [the father] does not incur the unnecessary expenses of the consultations with Court appointed experts.

   Summary

   It is with great reluctance and a heavy heart that our client has come to the decision outlined herein. There are limited options as to appropriate living arrangements for [the child], none of which are ‘ideal’. Our client acknowledges that [the child] deserves stability and certainty, which it is to be hoped her position will facilitate.

   In light of our client’s amended position and acceptance that [the child] will live primarily with [the father] we seek your respective responses to our client’s proposal. If the details are largely agreed to then we would propose Consent Orders be drafted and once settled the parties contact the Court to have Orders made administratively, if possible.

   We look forward to hearing from you both and do not hesitate to contact us as to any of the above.

Leave to Proceed Undefended

1. Rule 11.02(2) of the Family Law Rules 2004 (Cth) provides that if a party does not comply with the Rules, the Regulations or a procedural order, the court may inter alia dismiss all or part of the case and/or determine the case as if it were undefended. Whilst it is certainly the position in this case that the mother has failed to comply with previous orders including the order that she file and serve an amended initiating application and that she attend upon Dr N for psychiatric assessment, of even greater significance in my view is that these are child related proceedings and are to be conducted in accordance with the principles in Division 12A of the Family Law Act 1975 (Cth) (“the Act”).

2. Significantly, as even the mother’s solicitors pointed out in their letter to the father’s solicitor and the Independent Children’s Lawyer dated 18 March, it is in the child’s best interests to have stability which as the mother concedes would be provided by the child being in the primary care of the father. The letter refers to the child displaying increasing levels of opposition and aggression and the father’s evidence at paragraph 63 of his Affidavit filed 18 April 2016, which I accept, is that the child is “… very clingy, anxious and unsettled. He often refuses to leave my side, follows me around the house and become anxious if he is aware that I am leaving the house”. He further deposed at paragraph 64 of his Affidavit filed 18 April 2016 that the child “… appears to be experiencing anxiety and unease surrounding his current situation”.

3. The first of the five principles for conducting child related principles as set out in s 69ZN of the Act is that the court must consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. I am satisfied that the child needs both stability and the certainty of knowing where and with whom he is to be living and that in all of the circumstances having regard to the mother’s own proposal and her failure to either comply with previous orders or appear that the matter should proceed undefended.

Parenting Orders

1. As in any parenting case it is the welfare of the child or children subject of the proceedings that is the paramount consideration (s 60CA of the Act). In determining what is in the child’s best interests the court must consider both the primary and additional considerations in s 60CC of the Act. The relevance and weight to be afforded to those considerations will depend upon the particular circumstances of each case.

2. When the court is being asked to make parenting orders it must apply the presumption of equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the household or family violence (s 61DA of the Act). The presumption may be rebutted in circumstances where the Court is satisfied that it is not in the child’s best interest for the parents to have equal shared parental responsibility (s 61DA(4) of the Act). I am satisfied in this case based upon what is the unchallenged evidence of the father, in undefended proceedings, that the mother during a psychotic episode threatened him with a knife and threatened to kill herself, in the presence of the child, that the mother has engaged in family violence and that therefore the presumption does not apply. The child is reported by Ms T at paragraph 13 of the s 11F Report to have said that he has seen his parents fighting. In those circumstances it is not necessary for the Court consider whether it is in the child’s best interests and reasonably practical for the child to spend either equal and if not equal, substantial time with both parents.

3. The father is currently travelling between Country Z and Australia on a weekly basis but deposes at paragraph 67 of his Affidavit filed 18 April 2016 that his employment is in jeopardy as he is unable to tell his employer when he will be returning to Country Z on a permanent basis. The father deposes at paragraph 67 of his Affidavit filed 18 April 2016 that the child has repeatedly asked him when he will be returning to Country Z to live. The letter from Clancy & Triado dated 18 March 2016 confirms that the child has told the mother that he wishes to return to Country Z.

4. At paragraph 17 of the s 11F Report Ms T said as follows:

   In observation with [the father], [the child] was very warm in his greetings, instigating his father carrying him like a baby in his arms. [The father] asked [the child] how his tummy was and said that he had told him he had a funny feeling in it this morning and [the child] stated he had said it ‘20 times’ but was now fine. His father had brought a snack which [the child] ate while playing. [The child’s] play was initially quite physical and he appeared overly aroused, but his father engaged him and he quickly calmed. [The child] and his father had a teasing banter between them, with both laughing and chatting to each other. [The child] asked his father to assist him with uploading a ‘YouTube’ video he had created and the pair proceeded to have quite a technical discussion regarding sound and video technology.

5. She went on to say at paragraph 53 of the s 11F Report as follows:

   [The father] appears to have historically provided stability for [the child], it is reflected in the school records that he consistently attends school when in his father’s care and also in that he had had full time care of [the child] at times of the his mothers’ hospitalization. [The father] is confident that he can continue to provide stability and security for [the child] in [Country Z] and due to having had [the child] in his full time care for nine weeks he has a realistic view of this.

6. I am satisfied as Ms T states at paragraph 44 of the s 11F Report that the mother “... has a long term history of struggling with her mental health” and that the child has experienced the mother reaching crisis point and having to be hospitalised on at least five occasions throughout his life. The mother also admitted to Ms T that she had been regularly using ICE for a three month period up to her admission to XX for rehabilitation. However it is also the case that the Department of Health and Human Services had received a notification and become involved with the mother and the child in July 2015 which is one month prior to the mother’s admission to XX.

7. Ms T also observed at paragraph 47 of the s 11F Report that the mother “appeared to be primarily focused on her own needs and the impact of recent events on her own well-being” and “… unable to reflect on [the child’s] needs at this time for stability and security”. The mother is on that basis to be commended for having made the decision that the child should live with the father.

8. I am satisfied that in all of the circumstances it is in the child’s best interests that the father have sole parental responsibility for the child and that he should live with the father in Country Z returning to the school he attended whilst living in Country Z in 2015.

9. Ms T observed at paragraph 37 of the s 11F Report that both the father and mother “… see the other parent as playing a significant role in [the child’s] life going into the future. [The father] identified a number of positives that [the mother] brings, including affection and fun and in fundamental terms they both believe that [the child] needs both parents in his life but are currently unable to see a way forward”.  Notwithstanding their views, I am satisfied that in all of the circumstances it would not be in the child’s best interests for the father and mother to have equal shared responsibility nor practical. I am satisfied that given the father’s attitude he will do what he can to keep the mother advised with respect to any specific issues and the child’s welfare generally but that it circumstances where he has no obvious way of contacting the mother and even her own mother does know where she is living it would not be practical to expect him to consult with the mother in relation to decisions he must with respect to the child’s welfare.

10. The final orders the father sought in his Amended Response to Initiating Application filed 18 April 2016 included orders with respect the child spending face to face time with the mother. However in circumstances where he has no knowledge of either the mother’s whereabouts, the state of her mental health or whether or not she might be using drugs, the father, supported by the Independent Children’s Lawyer, proposed that the child’s time with the mother be limited to communication by telephone and skype as set out in his Amended Response to Initiating Application filed 18 April 2016. I am satisfied that it would not be in the child’s best interests for there to be orders for the child to spend time with the mother other than by telephone or skype in these circumstances. I am confident given the history of this matter and Ms T’s observations of the father that, subject to him being satisfied that there is not risk to the child, he will facilitate the mother’s relationship with the child.

11. I am satisfied that the orders sought by the father which are supported by the Independent Children’s Lawyer are in the child’s best interest.    

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2016.

Associate: 

Date:  16 May 2015