T and B

[2010] FamCA 64

FAMILY COURT OF AUSTRALIA

T & B [2010] FamCA 64

FAMILY LAW - CHILDREN - With whom a child lives
FAMILY LAW - CHILDREN - With whom a child spends time
FAMILY LAW - CHILDREN - Best interests

APPLICANT: Mr T

RESPONDENT: Ms B

INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

FILE NUMBER: DGF 755 of 2005

DATE DELIVERED: 19 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 19 January 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Brewer

SOLICITOR FOR THE RESPONDENT:	Robert Halliday & Associates
COUNSEL FOR THE ICL:	Mr Hoult

SOLICITOR FOR THE ICL: David Stagg Tonkin & Co

Orders

IT IS ORDERED THAT

1. All parenting orders with respect to the child M  born … November 2002 be discharged.

2. The mother have the sole parental responsibility of making all decisions with respect to the said child.

3. The child live with the mother.

4. All questions of the father spending time and/or communicating with the said child be reserved.

5. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

6. A  sealed copy of this order be forwarded by the Court to the father at his last known address.

7. Liberty be reserved to the father to apply to vary or set aside these orders upon application to be filed and served within 30 days, any such application to be supported by an affidavit or affidavits explaining his non-appearnace this day.

8. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 755 of 2005

MR T

Applicant

And

MS B

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the only child of the parties, M , who was born in November 2002 and is presently aged seven years.  The applications seek final orders. 

2. Before me today the mother and the independent children’s lawyer have been represented by counsel and the father has not appeared.  He last attended a Court event in June 09. There have been a few events since then including the dates mentioned and interim matters before a Registrar.

3. On 10 November 2009 I ordered that in the event that he failed to attend Court today the mother be at liberty to apply to proceed on an undefended basis.  It is not clear as to whether the father is aware of these proceedings, but in the circumstances, particularly as I will require any order to be served on him at his last known address, which was what occurred with the previous order, and I give him liberty to apply to vary or set aside the orders, his rights are sufficiently and appropriately protected.

4. The father was born in 1977 and the mother was born in 1985.  The parties commenced living together in March 2001 and separated in late 2003.  As I have said, their child, M, was born in November 2002. 

5. The background of the father has been most dysfunctional.  About four years prior to the parties’ meeting, he was convicted of aggravated sexual assault and was sentenced to a minimum of four years imprisonment.  In May 2002 he was imprisoned for burglary and theft.  He agreed to participate in a support service for drugs and alcohol, but in April 2004 was again imprisoned for burglary and theft.  He threatened to kill himself and the child in April 2006 and has other significantly dysfunctional behaviour.  He was prescribed certain drugs for opiate addiction in March 2007 and four or five months later was again convicted of burglary.  He was at that time placed on an intensive corrections order.  In February 2009 he was convicted of driving an unregistered car, using fraudulent number plates and such matters.  It is unclear as to whether he may be in prison now and he has not complied with any order for filing of documents since 2007. 

6. The father’s amended application was filed on 9 July 2007 and seeks that the child live with the mother and that the parents share joint parental responsibility.  He sought also that his time with the child be progressed in stages to become unsupervised commencing in 2008, and that it be increased to every second weekend, half school holidays and the usual orders in respect of special occasions.  I do not know the detail of some of his proposals.

7. The mother’s amended response essentially seeks sole parental responsibility and that the child live with her.  She seeks that any order with regard to time spent or communication between the father and the child be reserved. 

8. There has been significant expert intervention in this matter.  A report of Dr H sets out the father’s history.  I note that the mother has had a history of substance abuse.  There was an incident in April 2005 when DHS became involved and the child lived with her father for a few days.

9. Dr J, clinical psychologist, prepared reports in October 2005 and August 2007.  Dr J, who is highly skilled in this area, expressed the view that the father’s “pattern of behaviour impresses the writer as consistent with a diagnosis of anti-social personality disorder.”  In his later report Dr J opines:

   However, over the years it appears notwithstanding his apparent insight and motivation, [the father] has continued to engage in anti-social behaviours and abuse substances.  The writer has no reason to think that [the father] will change in these regards in the future.

10. Dr J nevertheless recommends a staged increase in time with a view to becoming supervised by his mother in his home and with the opportunity for later review, provided that the father comply with medical treatment for substance abuse and there being injunctions on him as to his consumption around time with the child.  I note at this stage that there is a history of supervised time spent between the father and the child and the supervision has taken place at a child contact centre, B Centre.  However, that came to an end in August last year because B Centre were not prepared to tolerate the father’s lack of dependability in keeping these arrangements.  There has been no contact of any sort between the father and the child since August 2009. 

11. Ms D and Ms L both of B Centre have provided excellent reports in February 2008 and July 2009 respectively.  From those reports it would appear that there are positive aspects to the relationship between the father and the child, but that seems to be a relationship which the father does not appear to wish to further.

12. In my consideration of the mother’s application I note that she seeks sole parental responsibility.  Clearly the child’s best interests are the paramount consideration in the proceedings and the provisions of section 60B of the Act promote the child’s right to have a relationship with both parents.  Regrettably the father does not seek to pursue that right.  As there is no question of the best interests of the child suggesting any shared or joint parental responsibility, that question is irrelevant.  There is no issue of the child living with the father at all and it is common ground that she should live with the mother.

13. There is no issue of the mother being the more appropriate person.  She clearly has the primary bond with the child, and accordingly the child should live with her.  As the father is not here to prosecute his application with respect to spending time or communicating with the child, I can do no better than reserve those matters, although I express the view that in appropriate circumstances it would be in the child’s best interest that the time and communication between father and child, which has taken place in the past, be resumed, but that needs to be a matter for consideration upon the application of the father.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date: