Stone and Gonzalez-Sampson

[2011] FamCA 152

FAMILY COURT OF AUSTRALIA

STONE & GONZALEZ-SAMPSON [2011] FamCA 152

FAMILY LAW – CHILDREN – with whom a child lives

Family Law Act 1975 (Cth)

APPLICANT: Mr Stone

RESPONDENT: Ms Gonzalez-Sampson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6857 of 2008

DATE DELIVERED: 21 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 February 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J.P. Spehr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Forster & Associates

Orders

1. That all previous parenting orders in respect of C born … February 2002 and E born … February 2002 (“the children”) save for paragraph 7 of the orders made on 15 November 2004 be discharged.

2. That the children live with the applicant husband.

3. That the applicant husband have sole parental responsibility for the children.

4. That the respondent wife be at liberty to send letters, card and gifts to the children at an address to be nominated by the husband.

5. That the wife communicate with the children by telephone every two weeks by calling them on the mobile telephone (which number is to be provided by the husband and the husband is to ensure that the telephone is charged and switched on) at 9.00am AEDST (4.00pm the previous day CST) as follows:

   (i)each alternate Sunday;

   (ii)on the children’s birthday (… February);

   (iii)on Easter Sunday;

   (iv)on Christmas Day;

   (v)on … (wife’s birthday)

   such calls to be conditional upon the wife not:

   (a)    questioning the children about with which parent they wish to live;

   (b)    criticising the husband or any member of the paternal family; or

   (c)    allowing any other person to engage in (a) or (b).

6. That the husband notify the wife as soon as practical in the event either of the children suffers serious illness or injury.

7. That the husband provide to the wife photographs of the children on no less than two occasions each year.

8. That until further order, the respondent wife be restrained by injunction from entering, remaining upon or approaching within, 200 metres of the home of the husband.

9. That until further order, the respondent wife be restrained by injunction from entering or remaining in or within 200 metres of the school or schools attended by the children C and E.

10. That upon finalisation of Family Court proceedings, the husband arrange at the earliest possible time for the children to have appropriate counselling as recommended by the family consultant.

11. That the Independent Children’s Lawyer post a copy of the sealed orders to the last known residential address of the wife.

12. That the wife have liberty to apply to set the orders aside provided she files an application with supporting affidavit material such documents to be filed by no later than 4.00pm on 18 March 2011.

13. That otherwise all extant applications are dismissed.

14. That all subpoenaed material be forthwith returned to the recipient of the subpoena.

15. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Stone & Gonzalez-Sampson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6857 of 2008

Mr Stone

Applicant

And

Ms Gonzalez-Sampson

Respondent

REASONS FOR JUDGMENT

1. This matter was adjourned by me to today, from 31 January 2011.  On that day, Mr Connell, of counsel, appeared on behalf of the mother.  Discussion took place in which it was indicated that there was agreement between all parties and my recollection is that Mr Connell went further and said that there could be no argument about the matter.  The matter was adjourned so that final orders could be made by consent and I noted on the order that if the parties signed minutes, everyone was excused from personal attendance.  It transpires that the minutes were drawn, but that, from the independent children’s lawyer’s perspective, there was nowhere to send them because the independent children’s lawyer had no current information as to who was acting for the mother.

2. I note that there is a history in this case of lawyers acting for the mother and subsequently filing a notice of ceasing to act.  The last such notice was filed on 31 December 2010 by Conlan Lawyers.  It’s interesting to note that in a hearing in November 2010, at which time Conlan Lawyers were acting for the mother, according to the court file, Mr Connell of counsel announced his appearance for her.  He did so again before me on 31 January 2011.  I do not know who briefed him and it appears that no one else knows either.  Mr Connell is not here today but I presume that he has passed on the information either to the mother or to whoever briefed him.  In the end it seems to be uncontroversial that the orders should be made in the terms proposed by both the independent children’s lawyer and by the children’s father, because, as I understand the material on the file, the mother is not in Australia in any event. 

3. There is a sad and significant history in this case which is quite disturbing and on the last occasion the matter was before me, Mr Connell indicated that he saw the reason why the orders would have to be made in the terms that were being proposed because of the mother’s health.  These two children are of an age where they need the protection of not only the law, but, obviously, of their parents.  The history on the file shows the mother’s behaviour has been disturbing.  Despite that, there is agreement that at least for the foreseeable future, the mother of these children should have communications with them, or at least have the opportunity to do so, on a fortnightly basis, together with special occasions.

4. The husband has agreed to an order that he be responsible for ensuring the number by telephone is available to the mother and to keep the telephone charged, but that must be conditional upon the mother not questioning the children about which parent they wish to live with or criticising the father or any other member of his family.  There are some other orders which include the mother not remaining upon or approaching the home of the husband or the schools at which the children attend.  Having regard to the aberrant behaviour of the mother, no doubt caused by her health, those orders are necessary for the protection of the children.  Children do not need to witness conflict between their parents and that seems to be one of the problems here.

5. I am satisfied, in this case, that the mother has had an opportunity to appear today and, for reasons which have not been explained, no one has indicated that they can accept documents for her.  Having regard to what Mr Connell told me on the last occasion, about the orders being agreed but just being unsigned at that stage, I see no reason why this case should be prolonged.  These children need closure as much as the adults do.  As a precaution, I will give the mother 21 days, but no more, in which to make an application to set aside those orders.  But to do so she will need to file comprehensive evidence to satisfy me that there is a basis to re-open the case.

6. I have considered all of the provisions of Part VII of the Act.  I am satisfied for the purposes of section 60CC of the Act that the relationship between the children and their father is a sound one and that he has fulfilled all of the responsibilities and obligations of a parent.  I am satisfied that the mother’s position is different from that, having regard to her health position.  However, the best way to enable the children to have the benefit of the matters set out in section 60B of the Act is to maintain the communication between the children and their mother by telephone, as is proposed in the orders.  In the circumstances, this is a case where orders should be made on a final basis, to end what has been at least two years of litigation.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 February 2011.

Associate: 

Date:  4 March 2011