SAVVIDIS & BARLOW

[2012] FamCA 628

FAMILY COURT OF AUSTRALIA

SAVVIDIS & BARLOW [2012] FamCA 628

FAMILY LAW  –  CHILDREN – Father’s application to spend time with the parties’ children – Proceedings prolonged by father – Father incarcerated at time of Final Orders and delivery of this Judgment – No order made for father to spend time with children

Family Law Act 1975 (Cth)

Rice & Asplund [1978] FamCA, [1979] FLC 90-725

APPLICANT: Mr Savvidis

RESPONDENT: Ms Barlow

INDEPENDENT CHILDREN’S LAWYER: Ms Haga

FILE NUMBER: PAC 5946 of 2009

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 26 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Father in person via telephone

Mr Savvidis

SOLICITOR FOR THE RESPONDENT:

Ms Elve

Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Haga

Karen L Haga & Associates

Orders

1. That all existing parenting orders relating to the children J born … April 2003 and N born … June 2007 shall be and are hereby discharged.

2. That the mother shall have sole parental responsibility for the said children.

3. That the said children shall live with the mother.

4. That the father shall spend no time with the said children.

5. That the Independent Children’s Lawyer shall make a copy of these Orders available to the father as soon as possible.

6. That all applications and cross applications shall be and are hereby dismissed.

7. That all issues be removed from the Active Pending Cases List.

8. That all material produced on subpoena shall be returned not before fifty-six (56) days from the date of these Orders.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Savvidis & Barlow 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 PARRAMATTA

FILE NUMBER: PAC 5946 of 2009

Ms Savvidis

Applicant Father

And

Ms Barlow

Respondent Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter comes before me today having been adjourned from 28 June 2012.  The matter concerns the parties’ children, J born in April 2003 and N born in June 2007.  The mother has filed and served an Amended Response in which she seeks, firstly, sole parental responsibility for those children.  Secondly, she seeks that the children live with her, and finally, that the father spend no time with the children.

2. The father, who has engaged in today’s proceedings by telephone link-up, is presently a serving prisoner.  As I understand it, he has been sentenced to 12 months imprisonment which will expire in March next year.  The father has no longer any legal representation.  Previously a Ms Coady had acted for him, but she has filed a Notice of Ceasing to Act.

3. The father seeks that he be permitted to spend time with the children.  It is a not particularly hard-pressed suggestion that he might see them in prison, but he says he wants to revert to existing Orders for supervised time when he is released from prison.  There are real difficulties with this matter.  Orders were made for the father to spend time with the children when he was in involved in one or more programs of rehabilitation.

4. The father, for whatever reason - and this may need to be explored in the future - left rehabilitation but did not inform anybody.  Subsequently, he was, as I say, incarcerated. 

5. This is a 2009 matter.  The matter has limped along.  Most of the delay has been caused because the father did not engage, did not have legal representation, was unavailable and subsequently was incarcerated.  To my mind, it is a proper and appropriate matter to consider whether or not I should make the orders that the mother seeks and leave it to the father to make any further application that he may choose when he is released.

6. The alternative, of course, is to adjourn the matter.  If such an adjournment were to be given it would make sense that it would be until after the father’s proposed date of release in March 2013. 

7. In all the circumstances of the case, I am satisfied that the mother and particularly the children are entitled to closure at this time.  Accordingly, I propose to deal with the matter today. 

8. This is a parenting matter. I must have regard to subsection 60CC of the Family Law Act 1975 (Cth) and the various sections and subsections there under.

9. I have had regard to the matters that I am required to take into account, which I do not propose to enumerate in great detail other than to say I am aware there is a balancing exercise of a relationship as against the need to protect.  In this regard, I am satisfied in this case the need to protect takes precedence.  I am satisfied that the children have a close and loving relationship with their mother.  I am satisfied their relationship with their father is untested.  I am satisfied the mother has exhibited a proper regard for the responsibilities of parenthood.  I am unable to make any similar finding in respect of the father.  I am satisfied that the mother has a proper capacity to care for the children and, again, the father is untested. 

10. I therefore make the following orders.

11. I discharge all existing parenting Orders relating to the two subject children.  I order that the mother have sole parental responsibility for the children.  I order that the children live with their mother, and I make no order for the father to spend time with the children.

12. The father can make a fresh application when he is released from prison if he so chooses (bearing in mind the principles set out in Rice & Asplund[1]).

    [1] [1978] FamCA, [1979] FLC 90-725

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 26 July 2012.

Legal Associate:      

Date:    2 August 2012