STOUT & ISOLDE

[2009] FamCA 902

FAMILY COURT OF AUSTRALIA

STOUT & ISOLDE [2009] FamCA 902

FAMILY LAW – CHILDREN – with whom a child should spend time– interim application – unopposed by respondent mother – where applicant father is incarcerated

APPLICANT: Mr Stout

RESPONDENT: Ms Isolde

FILE NUMBER: HBC 1237 of 2008

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Bennett J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rofe

SOLICITOR FOR THE APPLICANT: Wallace Wilkinson & Webster

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

IT IS ORDERED:

1. That the husband’s application for final orders filed 30 June 2009 is adjourned to 7 December 2009 at 10.00 a.m.

2. That by not later than 12.00 noon on 2 November 2009 the husband file and serve any amended application for final orders and any updating material in support thereof.

3. That by not later than 12.00 noon on 16 November 2009 the respondent wife file and serve any response thereto, together with any affidavit in which she sets out the evidence upon which she relies in opposition to the orders sought by the husband.

IT IS ORDERED UNTIL FURTHER ORDER:

1. That the children B born … March 2002 and G born … August 2005 (“the children”) live with the wife.

2. That the parents have joint parental responsibility for the children.

3. That the husband spend time with the children for a period of up to six hours once per  month on a Saturday or Sunday between the hours of 9.30 am and 3.30 pm at the … Prison.

4. That for the purposes of the husband’s time with the children pursuant to paragraph 6 above, the wife ensure that the children are presented at the Prison on such dates and at such times so that such time can occur.

5. That in the event that the wife is unwilling or unable to make the children available for the husband’s time pursuant to paragraph 6 above, the wife allow the paternal great grandparents, Mr W and Mrs W, to collect and deliver the children to and from the wife’s home.

6. That the husband have telephone communications with the children each Wednesday and Sunday nights between 7.00 pm and 8.30 pm with the husband to initiate such telephone call to the wife’s nominated landline or mobile telephone number.

7. That the husband be permitted to forward the children reasonable correspondence and gifts to an address nominated by the wife and that the wife ensure that such correspondence and gifts are passed on to the children and if required read to them.

8. That the wife keep the husband informed in relation to issues associated with and relevant to the children using a communication book and/or correspondence.  The communication book/correspondence will be provided to the husband during his time with the children pursuant to paragraph 6 above and in that book/correspondence the wife shall record information for the husband as to the children’s health, welfare and education.

9. That the husband’s time with the children be reviewed with a view to increasing in November 2009 when the husband commences Pre-Release Sections, during times and at such locations to be nominated by the wife.

IT IS FURTHER ORDERED:

1. That the husband’s solicitor:-

   a)serve a sealed copy of this Order on the wife by pre-paid post addressed to P Street, M; and

   b)advise the wife by telephone to her mobile telephone service 04… that interim orders were made today in terms of the husband’s application and that the matter has otherwise been adjourned to 7 December 2009.

2. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

AND THE COURT NOTES that if the wife does not appear at or participate in the hearing on 7 December 2009, final orders may be made in the terms of the husband’s application, as it then is, without any input by the wife or on behalf of the children B and G.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:    HBC 1237 of 2008

MR STOUT

Applicant

And

MS ISOLDE

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me as the first return date of the father’s application in which he seeks final and interim orders for the children, B, born in March 2002, and G, born in August 2005, to spend time with him for up to six hours once a month at … Prison, where he is currently serving a term of imprisonment.

2. The mother does not appear today. An affidavit of service sworn by Mr P and filed 3 September 2009, confirms the respondent mother was served with a copy of the father’s application and supporting affidavit sworn 25 May 2009, by hand on 31 July 2009, when she identified herself as being the respondent.  I note that the final page of the application bears the warning that ‘if you do not attend the hearing orders may be made in your absence.’

3. I am satisfied that the mother has notice of the proceedings and knows that she should have appeared at court if she wished to contest the father’s application.

The father’s application

1. The father sought to proceed with only the interim aspect of his application at this hearing. 

2. The best interests of the children are the paramount consideration in any determination of an application for parenting orders.

3. In determining what is in the best interests of the children, I have regard to the two primary considerations contained in s 60CC(2): that the children be protected from physical or emotional harm; and an assessment of the benefit to the children of a meaningful relationship with each of their parents.  In order to assist the court to assess the two major principles, there are a number of additional considerations to which I have regard, pursuant to s 60CC(3).  

4. The mother does not attend court to oppose the orders.  These are proceedings in a court of private law.  The court does not of itself investigate the merits of cases where the respondent does not oppose the orders sought and the outcome appears to accord with the best interests of the children.

5. The father has been linked-in from prison by telephone.  The father gave brief evidence that yesterday he had a conversation with the mother when he rang to speak with the children for Father’s Day.  The father deposes that the mother indicated that she was in agreement with the orders that the father seeks in his application.  He mentioned that there was one proviso to her agreement; namely, that he will spend his pre-release leave from prison with the children. In November 2009, the father will become eligible for pre-release leave once every 28 days for a period of 48 hours.

6. I have regard to the affidavit evidence of the father contained in the affidavit sworn 25 May 2009.  It appears that during the period of the relationship, for which the parties have only been married for part, the father has served significant periods of imprisonment, during which the mother has taken the children to see him. 

7. I am satisfied that it is in the children’s interests to maintain contact with the father on a face-to-face basis, as well as for the communication opportunities he seeks, so that they will have a greater familiarity and understanding of him when they are able to spend overnight time with him in the community.  In some cases, there is opposition to children being required to attend prison to see a parent. There does not seem to be such an opposition in this case. In fact, it appears that one of the children must have been conceived on a prison visit. In the absence of opposition from the mother, I am prepared to assume that prison authorities make the visits as family orientated and pleasant as possible for the children and other relatives of inmates.

8. I have regard to the need to protect the children from physical or emotional harm, but note that the mother does not attend court to allege that that is relevant in this case.  Likewise, she does not attend court to say that it is not in the best interests of the children that they have a meaningful relationship with the father. 

9. The father seeks orders which will enable his grandparents to bring the children to the prison if the mother cannot or does not wish to do so. I have not heard from Mr and Mrs W, although I accept that in the context of these proceedings they will act as agents for the father. It is an enabling provision rather than an order which imposes any obligations on them.

Parental responsibility

1. I also order that until further order, the parents will have joint parental responsibility.

2. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[1]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[2]  Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   …… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   [1] s 61B Family Law Act 1975 (Cth).

   [2] s 61DA(1) Family Law Act 1975 (Cth).

3. The mother and the father will be required to make any long terms decisions about the children jointly.[3]  They must ‘consult the other parent in relation to the decision to be made about that issue’[4] and to ‘make a genuine effort to come to a joint decision about that issue’.[5]    

   [3] s 65DAC(2) Family Law Act 1975 (Cth).

   [4] s 65DAC(3)(a) Family Law Act 1975 (Cth).

   [5] s 65DAC(3)(b) Family Law Act 1975 (Cth).

4. Sub-section 65DAA(1) of the Act provides that, in making a parenting order for a child’s parents to have equal shared parental responsibility for the child, I must consider the following:

   a)whether the child spending equal time with each of the parents would be in the best interests of the child;[6] and

   b)whether the child spending equal time with each of the parents is reasonably practicable;[7] and

   c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.[8] 

   [6] s 65DAA(1)(a) Family Law Act 1975 (Cth).

   [7] s 65DAA(1)(b) Family Law Act 1975 (Cth).

   [8] s 65DAA(1)(c) Family Law Act 1975 (Cth).

5. In making such an order, I must regard the best interests of the child as the paramount consideration.[9] Further, in determining what is ‘reasonably practicable’, I am to take into account the factors listed in s 65DAA(5) of the Act, which include the following:-

   a)how far apart the parents live from each other;[10] and

   b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;[11] and

   c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind[12] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[13] and

   d)the impact that an arrangement of that kind would have on the child;[14] and

   e)such other matters as the court considers relevant.[15] 

   [9] ss 65DAA(1) Note 1 and 60CA Family Law Act 1975 (Cth).

   [10] s 65DAA(5)(a) Family Law Act 1975 (Cth).

   [11] s 65DAA(5)(b) Family Law Act 1975 (Cth).

   [12] s 65DAA(5)(c) Family Law Act 1975 (Cth).

   [13] s 65DAA(5) Note 1 Family Law Act 1975 (Cth).

   [14] s 65DAA(5)(d) Family Law Act 1975 (Cth).

   [15] s 65DAA(5)(e) Family Law Act 1975 (Cth).

6. Clearly the father’s incarceration makes any residential arrangement impracticable.  Sub-section 65DAA(2) of the Act provides that where parenting orders allow parents to have equal shared parental responsibility but not equal time with the child, I must consider whether it would be in the child’s best interests for the child to spend substantial and significant time with each parent.[16]  Again that is not reasonably practicable in the circumstances of this case. 

   [16] s 65DAA(2)(c) Family Law Act 1975 (Cth).

Conclusion

1. In all of the circumstances of the case, I am satisfied that orders can be made on an interim basis in the terms of paragraphs 1 to 9 of the interim application and I will adjourn the balance of the proceedings until a duty listing in December 2009.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 September 2009