Squires and Dennis

[2007] FamCA 1580

FAMILY COURT OF AUSTRALIA

SQUIRES & DENNIS [2007] FamCA 1580

FAMILY LAW – CHILDREN – Previous interim orders providing for two children to live with separately, one with each parent – The mother, without notice, removed a child and moved interstate – The father succeeded in recovering that child so that they both resided with him – Mother failed to participate at the hearing – Orders made in favour of the father in her absence

Family Law Act 1975 (Cth)

APPLICANT: Mr Squires

RESPONDENT: Ms Dennis

FILE NUMBER: MLC 660 of 2007

DATE DELIVERED: 13 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 13 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Toose

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. That paragraphs 4, 5, 6, 7 and 9(a) of the Orders of the Honourable Justice Benjamin made on the 2^nd day of May 2006 be discharged.

2. That the child D born on the … day of May 1997 live with the Father.

3. That the Mother spend time with the children of the relationship S born on the … day of March 1995 and D born on the … day of May 1997 as agreed between the parties.

4. That the Mother be restrained from removing the children of the relationship from the North Western Victoria region.

5. That pursuant to section 65DA(2) and Section 62B of the Family Law Act 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 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.

6. That all applications be otherwise dismissed and removed from the list of cases awaiting determination. 

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 660  of 2007

MR SQUIRES  

Applicant

And

MS DENNIS  

Respondent

REASONS FOR JUDGMENT

1. The proceedings before me comprise a Form 1 Application brought by Mr Squires (“the father”) and filed on 19 January 2007.  By that Application, he sought an order that the orders previously made by Benjamin J on 2 May 2006 be discharged, and that the child D, born in May 1997, live with him.  Further, that he be responsible for the child's day-to-day care, welfare and development.  There were further and other facilitating orders sought by him.

2. I am satisfied service of the material was effected upon Ms Dennis (“the mother”) on 6 March 2007.  An Affidavit of Service is on the court file.

3. The father was born in September 1957, and is currently employed in the goods and services industry. The mother was born in September 1968. They commenced cohabitation in 1992, and following unhappy differences between them, separated in 1998.  The mother subsequently formed a relationship with a Mr M in about May 2002.  The two children of their union are S, born in March 1995, who is 12 years of age, and D who is 10 years of age.

4. There is quite a history to these proceedings, which is set out in the father's affidavit.  He refers to the fact that the orders made by Benjamin J provided for the daughter S to live with him, and for D to live with the mother.  His Honour also made extensive orders that each child would spend time with the non-residential parent so as to maximise each child's time together.

5. In his affidavit, the father deposed to the circumstances surrounding how it came about that the siblings were "split", as described by him in his affidavit.  There had apparently been a serious confrontation between S and the mother as a result of which the child refused to continue to live with her.  At that time, D preferred to reside with the mother, and spent liberal amounts of time with his father and his sister.

6. However, history now records that after approximately six weeks, the mother failed to make D available for the father.  He deposed to the circumstances that confronted him in seeking to ascertain the whereabouts of his son, and in the result, it transpired that the mother together with, I assume it to be, Mr M, had relocated in clandestine circumstances to the Northern Territory, where she was ultimately found some eight months later by the Australian Federal Police.

7. The father deposed that the mother's move to the Northern Territory was calculated and one designed to frustrate his relationship with D.  As a by-product of her action, she significantly damaged the relationship between the two children.

8. The mother, aware of these proceedings and of the allegations made, has chosen not to participate at this hearing.  In fact, following the recovery of D from the Northern Territory, she has had no contact with the child, save until recently following the death of her father and being in Victoria, she elected to see the children for a total period of one and a half hours, despite the fact that she was here for several weeks.  Such is the measure of her parental sensibilities.

9. It is plain to me that the father has alone undertaken the sole and onerous obligations of parenting both D and S, and from his evidence this day I am satisfied that both the children are progressing very well under his care.  He is to be congratulated on his dedication to the children.  I am satisfied as to the adequacy of the children's accommodation. 

10. The father is in continuous employment, working for the same employer for the last four years.  He receives no child support from the mother, despite the fact that it is understood she has employment in the Northern Territory.  The fact of a parent's failure to provide support for his or her child is very much an indicator of the facile and shallow attitude that parent takes towards parenting, casting all the obligations for the development of the children on the other spouse without any contribution of any nature whatsoever.

11. I am satisfied from the evidence of the father and the helpful submissions of Ms Toose that the orders proposed, and which I mark Exhibit “A”, be made.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 15 January 2008