Summers and Naughton

[2007] FamCA 1605

FAMILY COURT OF AUSTRALIA

SUMMERS & NAUGHTON [2007] FamCA 1605

FAMILY LAW – CHILDREN – Orders made in absence of father undergoing rehabilitation for drug addition – Satisfactory proposals advanced by mother for the welfare of their 3 year old child

Family Law Act 1975 (Cth)

APPLICANT: Ms Summers

RESPONDENT: Mr Naughton

FILE NUMBER: MLF 3143 of 2005

DATE DELIVERED: 20 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 20 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martin

SOLICITOR FOR THE APPLICANT: Martin Irwin & Richards

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. THAT the application of the father filed the 8^th day of June 2005 be dismissed.

2. THAT the parties share equally the long term responsibility for the care welfare and development of the child … born the … day of March 2004.

3. THAT the said child live with the mother.

4. THAT the father spend time with the said child at times to be agreed between the parties.

5. THAT all extant applications be dismissed.

6. THAT all matters be removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLF 3143 of 2005

MS SUMMERS  

Applicant

And

MR NAUGHTON  

Respondent

REASONS FOR JUDGMENT

1. This matter, which comes before me in the regional sittings of the Family Court of Australia at Mildura commenced with a Form 1 Application filed by the father on 8 June 2005.  He sought residence of the child born in March 2004.  The child is now three years of age.  At the time of issue of the proceedings the child was only 13 months.

2. The mother filed a Form 1A Response on 9 August 2005 seeking an order that the child live with her.  An amended Response was filed on 22 October 2007, and served seeking identical substantive orders, but worded to accord the amendments to the Family Law Act 1975. 

3. A short background is as follows.  The father was born in New Zealand in March 1982.  He is 25 years of age.  The mother was born in Russia in October 1985.  She is 22 years of age and came to the Commonwealth of Australia as a young child.  The parties cohabitated in May 2002 and following unhappy differences between them, separated in May 2004.  Theirs was a short  union.

4. I am satisfied as to service and that the father is aware of the proceedings before the court this day.  Ms Martin, who appears for the mother, forwarded a copy of proposed orders recently to the father.  He telephoned Ms Martin and debated with her the fact that the orders, as forwarded to him, sought sole responsibility by the mother for the long-term care and welfare of the child.  He indicated to Ms Martin that he would desire that both he and the mother share equally the long-term responsibility for their child's care.  To this the mother drew no dissent.  Accordingly, I am quite satisfied that he is aware of the orders sought this day and indeed has participated in their formulation.

5. The material relied upon by the mother is that set out in an affidavit filed by her on 22 October 2007.  I have read that detailed affidavit which satisfactorily underpins the orders sought by her.  She deposed, having set out the background, that the father has a drug addiction problem and had admitted himself to rehabilitation.  Earlier, orders were made on 7 August 2005 by way of an interim nature at the Mildura Magistrates Court that the child live with the mother and that the father spend time with the child every third weekend, with contact to be supervised at a Child Contact Centre.

6. The mother deposed that over the Christmas period of 2006-2007 the father spent little time with the child.  She said that he began sending to her a series of quite abusive text messages.  He would be “argumentative and aggressive” and would not adhere to the set arrangements for his time to speak with or see the child.  In her affidavit the wife set out a series of incidents that took place when the father was to telephone the child, but failed to do so.

7. The mother deposed that it had become apparent to her that over a long period of time that the father was battling a drug addiction problem.  He is now in rehabilitation and notwithstanding, seeks an order that the matter proceed in his absence.  That, I am prepared to do as these proceedings should be brought to an end.

8. Annexed to the mother's affidavit is a letter from the father to the child written this year.  It is a somewhat curious letter in the sense that it demonstrates that he, whilst heavy of heart in the situation in which he had found himself, was penning words to a three‑year‑old child that were quite inappropriate in the circumstances.  However, this is by no means a criticism, but an observation.  A fair reading of the letter would indicate that observation to be quite accurate.  For example, he penned the following words to his son:

   “I'm not very good at this writing thing yet but I will get better.  I'm going to write to you every week […], and when I'm allowed I will call you every Monday and you can tell me what you've been up to at school and if you ever want to talk to dad you just ask mum and you can call me up and they will come and find me wherever I am.”

9. So the letter goes on with various other writing descriptive of his time at D Rehabilitation Centre commencing with the sentence:

   “Daddy has officially spent his first day at rehab.”

10. I am satisfied from the evidence from the mother that it is appropriate to make the orders sought.  Hers is a difficult task.  She is charged with the sole and onerous responsibility of raising the child alone.  She is to be congratulated on her industry and parental responsibility in that regard.  I mark the Minute of Proposed Orders Exhibit “A” and make orders in terms of Exhibit “A”.  I direct the solicitor for the mother to engross the orders and I note removal of the proceedings from the Active Pending Cases List.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  17 January 2008