Stieper and Valenta

[2011] FamCA 1036

FAMILY COURT OF AUSTRALIA

STIEPER & VALENTA [2011] FamCA 1036

FAMILY LAW – CHILDREN – Application for consent orders – application for sole parental responsibility to be allocated to the mother and supervised time only for the father – doubt as to whether father has received independent legal advice – father not present in Court – application refused

Family Law Act 1975 (Cth)

APPLICANT: Ms Stieper

RESPONDENT: Mr Valenta

FILE NUMBER: CAC 1206 of 2009

DATE DELIVERED: 18 August 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 18 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. There being no appearance by or on behalf of either of the parties to these proceedings the application for consent orders filed on 10 August 2011 is dismissed.

2. I note this appears to leave in place as final orders the Orders made on 28 July 2010 and the matter is removed from the pending cases inventory.

IT IS NOTED that publication of this judgment under the pseudonym Stieper & Valenta 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 CANBERRA

FILE NUMBER: CAC 1206 of 2009

Ms Stieper

Applicant

And

Mr Valenta

Respondent

REASONS FOR JUDGMENT

1. This matter is before the court today on my direction as a result of my being shown an application for consent orders filed in the Court on 10 August 2011 by Ms Stieper, the mother of the child, B born in 2008 who is the subject of the proceedings.  The matter has a history before the Federal Magistrate’s Court, including the fact that at the present point there are orders in existence made by consent on 16 December 2009.  The orders on that date were interim orders, but have been continued.  The matter was adjourned for further mention on 5 July 2010 to 5 October 2010. Orders were made again by consent on 28 July 2010, which provided that the child live with his mother, that the parties have equal parental responsibility and that there be certain nominated times which the child would spend with his father.

2. On 10 August 2011 a further application was made for orders to be made by consent.  These orders seek that the mother have sole parental responsibility (which is a change to the orders currently in existence), that the child live with his mother and spend time with his father as agreed between the mother and the father.  These [orders if made] effectively [would have] the practical effect of removing the father from involvement in the child’s life. 

3. The application for consent orders was completed in the normal way.  “Part L Statement of Truth of respondent” indicated, on the part of the father, assuming it is his signature that appears on that document (and I have no reason to doubt that it is) that he was, under questions 4 and 5, “aware of [his] right to obtain independent legal advice” and he had “had independent legal advice on [his] relevant rights under the Family Law Act and the effect and consequences of orders being made in the terms proposed.”[1]

   [1] All quotations are made without alteration or correction to errors contained in the original text.

4. However, the “Part M Statement of independent legal advice” was not completed at the bottom of the page.  I am therefore left with a considerable doubt about whether the father has actually received legal advice and if he has, the effect of that advice and whether he understands it.  The mother in the course of completing the document (and it appears it was completed by her) in question 13, said the presumption of equal shared parental responsibility should not apply, because “Father has schiziophrenia and mental health issues”.

5. She also commented that “supervised contact is agreed” and further stated that in lieu of the child spending equal time, or substantial and significant time, with both parents, that “supervised contact” appears to be what she believed to be appropriate.

6. In all the circumstances it is difficult for me to be satisfied that the orders that the Court is being asked to make are in the best interest of the child, and there is very little information that would enable me to make the orders sought, particularly in circumstances where I do not have any appearance by or on behalf of the father.  I note that in an earlier affidavit filed by the father on 24 July 2009, he admitted (in paragraph 9) that he was diagnosed at that point with schizophrenia and started medication.  However, the effect of that schizophrenia on his ability to care for the child is not recorded in material I have before me, and in the circumstances it is appropriate that the application for consent orders filed on 10 August 2011 should be dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 18 August 2011.

Associate:

Date: