Saylor and Hayden

[2016] FamCA 563

FAMILY COURT OF AUSTRALIA

SAYLOR & HAYDEN [2016] FamCA 563

FAMILY LAW – CHILDREN – Where neither party has taken any step in the proceedings for over twelve months – Where the children were returned to the care of the mother following the father being diagnosed with a terminal brain tumour – Where the father is unable to be located and has not made contact with the children since they were thirteen years of age – Where the children are now seventeen years of age – All previous orders discharged – All outstanding applications dismissed.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Saylor

RESPONDENT: Mr Hayden

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2880 of 2008

DATE DELIVERED: 12 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Stevenson

HEARING DATE: 29 June 2016

REPRESENTATION

THE APPLICANT: There was no appearance by or on behalf of the applicant

THE RESPONDENT: There was no appearance by or on behalf of the respondent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr O'Dowd

Orders

1. All orders previously made in this matter are discharged.

2. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saylor & Hayden 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 SYDNEY

FILE NUMBER: SYC 2880  of 2008

Ms Saylor

Applicant

And

Mr Hayden

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. The current parenting proceedings have a very lengthy history, having been commenced by an Initiating Application filed 28 May 2008.  The parties, Mr Hayden, and Ms Saylor are the parents of twin boys, B and C.  The twins were born in 1999 and are currently 17 years of age.

2. The mother and the father married in 1996 and separated on 5 March 2003.  The parties engaged in litigation concerning the children between 2003 and 2006 but entered into consent orders on 27 January 2006.

3. The orders of 27 January 2006 provided that the children live with the mother and spend supervised time with the father over a period of fourteen months.  Thereafter the orders provided for incremental increases in unsupervised time, leading to alternate weekends, half the school holidays and special occasions.

4. Further orders were made by consent on 13 December 2006, which made relatively minor changes to the orders of 27 January 2006.  In her Initiating Application filed on 20 May 2008, the mother sought orders for a termination of all contact between the father and the boys.  The father countered with an application for a change in primary residence.

5. On 16 December 2008 orders were made, by consent, which provided that the children live with the father and spend supervised time with the mother.  Little progress was made in the proceedings between that date and April 2012.

6. On 18 June 2012 the parents and children attended a meeting with a Family Consultant, Ms D.  The Family Consultant prepared a Child Responsive Program Memorandum dated 28 June 2012.  The Family Consultant noted that, by agreement between the parties, the boys had spent increasing time with the mother on an unsupervised basis between 2008 and 2012.

7. A single expert psychiatrist, Associate Professor E, has had extensive involvement with the parties and children.  Associate Professor E prepared a number of reports, the most recent of which was dated 14 November 2008.

8. In November 2012 the Independent Children’s Lawyer (“ICL”) advised the court that the father had been diagnosed with an aggressive terminal brain tumour.  The ICL advised further that, consequently, the children had returned to live with the mother.

9. Attempts by the ICL to locate and communicate with the father proved fruitless after approximately November 2012.  In fact, the ICL was unaware of whether the father was still alive or had succumbed to his brain tumour.

10. On 16 June 2015 the Magellan Registrar listed the proceedings before me on 1 July 2015.  The parties were advised of the date of the next court event in writing by the Registrar.

11. On 8 July 2015 the ICL advised the Registrar that the father appeared to be alive but had not made any contact with the boys since they were 13 years of age.  The ICL requested an adjournment of the listing date of 10 July 2015 to enable her to swear an affidavit setting out her knowledge of the current circumstances of the parties and the children.

12. Personal difficulties prevented the ICL from preparing such an affidavit.  The current ICL, Mr O’Dowd, then kindly assumed that role.

13. Mr O’Dowd managed to contact the mother on Facebook.  Subsequently he had telephone and email communication with her.

14. On 9 May 2016 Mr O’Dowd wrote to the father at his last known address and requested that he sign a Notice of Discontinuance.  This letter was “returned to sender” (Exhibit 1).

15. I caused the proceedings to be listed on 29 June 2016, with a view to discharge of all existing orders and dismissal of all outstanding Applications and Responses.  Mr O’Dowd had arranged with the mother that she would appear by telephone but, unfortunately, two calls from the courtroom went only to her voicemail.

Consideration

1. Mr O’Dowd appeared on 29 June 2016 and advised me of the following information concerning the boys, which he had obtained from the mother:

   ·When the father returned the children to her residential care, he gave her a note which stated that they were to live with her.

   ·She has carried this note in her wallet ever since 2012.

   ·When the children were returned to her care they encountered some behavioural problems, including substance abuse.

   ·The mother arranged for the boys to receive professional assistance from different institutions in relation to these behavioural difficulties.

   ·The boys’ behavioural difficulties resolved over time.

   ·The home of the mother and the boys is in the F Town area.

   ·Both boys are currently undertaking apprenticeships, one in personal training and the other in hairdressing.

   ·The boys have had no contact with the father.

   ·She has received some Centrelink payments as child support, which may indicate that the father is alive at this time.

2. The contents of the court file indicate that the father last took an active step in the proceedings when he appeared on 16 July 2010.  He has filed no material since 12 December 2008 and his last address for service was dated 23 October 2009.

Conclusion

1. As the boys are now 17 years of age and neither party has taken an active step in the proceedings for some years, it seemed appropriate to me that the litigation be brought to an end.  Given that the boys are now 17 years of age and have a degree of independence, I can see no utility in the existence of any parenting orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

12 July 2016.

Associate: 

Date:  12 July 2016