Taffy and Ladna
[2011] FMCAfam 1408
•8 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAFFY & LADNA | [2011] FMCAfam 1408 |
| FAMILY LAW – Children – parenting orders – where respondent sought orders that both the child of the parties and the child of the mother and another man should live with him – where respondent did not attend court on final hearing – best interests of the child. |
| Family Law Act 1975 (Cth) s.60CA Federal Magistrates Court Rules 2001 r.13.03C |
| Applicant: | MS TAFFY |
| Respondent: | MR LADNA |
| File Number: | SYC 3993 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 7 and 8 December 2011 |
| Date of Last Submission: | 8 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Tonkin Drysdale Partners |
| Respondent: | No Appearance |
| Counsel for the Independent Children’s Lawyer: | Ms Graves |
| Solicitors for the Independent Children’s Lawyer: | Shorehills Legal |
ORDERS
That the Short Minutes of Order be marked as Exhibit 11 and I make orders in accordance with paragraphs 1 to 26 inclusive.
The Mother is authorised to sign on behalf of the Father all documents necessary to obtain an Australian passport for [X] born [in] 2003 and the consent of the Father for this purpose is dispenses with.
The Mother has liberty to apply to vary these orders on 14 days notice in the event that the Father administers to himself any illicit drug at any time whilst [X] is in his care.
Each party is to pay the Independent Children's Lawyer’s fees and disbursements in the sum of $3,824.10 inclusive to the Legal Aid Commission of New South Wales within 29 days of the making of the final orders unless he or she is in receipt of a legal aid grant for these proceedings and/or receives a written waiver of the fee payment from the Legal Aid Commission of New South Wales.
That the Independent Children's Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Taffy & Ladna is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3993 of 2010
| MS TAFFY |
Applicant
And
| MR LADNA |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the Mother of a little girl called [X], who was born [in] 2003. The Father, in his response, sought other orders relating to [X].
He also sought orders in respect of the Mother’s other child who is not his child. The name of this child is [Y], and [Y] is the daughter of the Mother and another man. [Y]’s father is known to the parties who has been served with copies of the material and has expressed a wish not to participate in the proceedings.
There is evidence before the Court that the Father of [Y] has telephone contact with her, although no face to face contact.
The Respondent in these proceedings sought parenting orders in respect of [Y] as well as in respect of [X]. Indeed, the orders that he sought on the final basis, were that both children should live with him.
The application was listed for Final Hearing. The matter was before the Court on 21st February 2011and the application was listed for Final Hearing to take place yesterday, 7th December and today, 8th December 2011.
The Court ordered a Family Report under the provisions of section 62G of the Family Law Act.
The Court made orders that the children’s interests be independently represented by a lawyer under the provisions of section 68L of the Family Law Act. That has been done.
The Court also made orders relating to the filing of affidavits. The Mother’s trial affidavit, along with an amended application, was filed on 21st November 2011. The deadline prescribed by the Court was 25th November 2011. So, it can be seen that the Mother’s material was filed in plenty of time.
The Father has not filed any material since his response and affidavit of 13th August 2010.
He did, however, attend the interviews conducted by the family consultant, Dr S, for the purpose of preparation of Family Report.
The Family Report was released to the parties and the Independent Children's Lawyer on 8th November 2011. I have read through that document and admitted it into evidence. I have found it very helpful.
Dr S was also available for cross-examination. She did in fact give oral evidence.
Regrettably, the Father has not attended Court for the Final Hearing. He is no longer legally represented. He did not attend Court yesterday, on 7th December 2011, nor did he attend Court today.
I am informed, and I believe it to be true, that the Independent Children's Lawyer attempted to telephone the Father on his mobile telephone but without success. I am also informed that she attempted to contact the paternal grandmother, also without success.
There is no explanation before the Court as to why the Father has not attended Court on either day. He is not legally represented. He has not sent any message nor had anyone send any message to indicate that he has been hindered, delayed or prevented from attending Court due to illness, injury or other emergency. There is just no message from him whatsoever.
I am informed that he did not telephone the child [X] last night, as the Mother would normally have expected him to do.
There is nothing before the Court that would indicate that the matter should be adjourned and I am of the view that the Court should proceed to a hearing of the matter under the provisions of rule 13.03C of the Federal Magistrates Court Rules.
Short minutes of order have been prepared which represent orders sought jointly by the Applicant Mother and the Independent Children's Lawyer. They cannot be the subject of consent orders because the Father has not attended the Court and does not consent to them. However, I will admit that document into evidence and I will mark it as Exhibit 11.
As I said, those orders represent orders to which both the Mother and the Independent Children's Lawyer have given consideration and would ask the Court to make.
They provide that the mother is to have sole parental responsibility for [X]. That she live with the Mother and spend time with the Father.
The orders contain provisions for communication between the parents for matters concerning [X] and the requirement for the Father to provide appropriate sleeping arrangements for the child.
The orders, interestingly enough, seek a restraint on the Father from engaging the child in busking and evidence has been produced to the Court, by means of photographs, showing the child engaged in busking in the street in various towns. The Mother has some concern about this due to the child’s tender years. She was born [in] 2003 and has no indication that the Father has any permit or licence to engage in busking, and the child certainly hasn’t.
There are certain issues that have arisen, including the Father’s admitted use of cannabis. That was raised in the Family Report and the Father did not deny his use of cannabis and he indicated that he intended to continue to do so.
There were orders made in February this year requiring the parties to attend for urine analysis with which the Mother has complied but with which the Father has not.
There is an order restraining the Father from being under the effect or influence of any illicit drug whilst [X] is in his care and restraining him from consuming any illicit drug for 24 hours prior to the child coming into his care, and from exposing [X] to the use of any illicit drugs whilst she is in his care.
The Mother seeks more prescriptive orders than that. Indeed, she seeks an order that the Father submit to a chain of custody urine drug screens and should provide three clean urine analysis screens to the Mother before he is to spend any time with the child [X].
This is not an order supported by the Independent Children's Lawyer and on the evidence of Dr S, the writer of the Family Report, it is clear that Dr S does not believe that such an order would be efficacious in that it is unlikely, one, that the Father would comply with it and two, that even if he did, noting his use of marijuana, that he would be able to produce three clean urine analysis screens.
The concern is that if the Father’s time with the child, from now on does not commence until after he has complied with this order, that [X] will not seek her father at all.
The evidence before the Court is that [X] has a strong relationship with her father and notwithstanding such things as his drug use, he can still manage to involve her in pleasurable and useful activities, including riding horses and the child obtains a lot of benefit from these activities.
The concern that I would have is that if the Father’s time were ceased with [X], that it may be seen by the child as a restrictive action by the Mother, which would have an adverse effect on the Mother’s relationship with the child. That is something that would need to be avoided.
However, this does not mean that the Mother has no legitimate concerns. She does. It is not hard to see why order 18 has been prepared by the party’s legal advisers restraining the Father from being under the effect or influence of any illicit drug before spending time with [X] or whilst spending time with [X].
The Independent Children's Lawyer is of a view that that, in all the circumstances, would suffice. The Mother has some concerns.
It is difficult to find an ideal solution but I would be most concerned if an incident were to arise where the Father did turn up, in accordance with the arrangements to collect the child, and he was clearly under the effect of an illicit drug. I would be most reluctant to allow the child to go with the Father if he was so affected by illicit drugs that he was not able to drive motor car safely or attend in other ways to the care of his child and if the Father’s use of illicit drugs increases, the Court would then have a serious concern as to whether the current arrangements proposed for the Father to spend time with the child should continue.
This does not mean that the Court should not make final orders today. It will. What I propose to do is to make an order granting the Mother liberty to apply to vary the orders on 14 days notice in the event that the Father does administer to himself any illicit drug at any time when the child [X] is in his care.
This is a fallback position so that if the Father does turn up clearly affected by drugs and there are serious concerns about the child’s welfare, then the Mother could bring that matter back to Court and the question of the Father’s drug use can be further investigated.
There is also the question of the Mother wishing to obtain a passport for the child. The Father, in his response, opposed such an order and sought that application should be dismissed.
This was a question that was discussed by the writer of the Family Report. Eventually the Father said that he would consent to the child having a passport once she attained the age of 12 but no reason was given as to why the age of 12 was such a significant age. It appears to me to have been selected at random.
In the Family Report the writer said:
Mr Ladna’s refusal to sign [X]’s passport application appears somewhat at odds with his stated desire for [X] to have a wealth of experience in her life. There appears no indication that
Ms Taffy would seek to leave Australia and the lack of a passport would limit [X]’s opportunity to travel overseas on a holiday with her mother or her mother’s extended family.
I cannot see any reason why this child should not be permitted to have a passport. There is no evidence before the Court that the mother has any intention of taking the child out of Australia and not returning her to Australia.
There is nothing to support that view at all and it seems to me that it would most hard on this child if she were not permitted to have a holiday out of Australia because she did not have a passport and would not be able to have a passport until she is a lot older.
If the Father does not wish to consent to the child having a passport then I propose to dispense with that requirement and I will make an order authorising the Mother to sign on behalf of the Father all documents necessary to obtain a passport for the child and I will dispense with the requirement for the Father’s consent.
That then leaves two orders sought by the Independent Children's Lawyer. The first of those seeks that each party pay to the Independent Children's Lawyer a sum of $3,824.10 towards the Independent Children's Lawyer’s fees and disbursements. That should be paid to the Legal Aid Commission or that the parties should not have to do so if that party is in receipt of a grant of legal aid or receives a written waiver from the Legal Aid Commission.
The Father is not here to provide any comment on this. I am not of a view that this is an unreasonable order, in fact I think it is appropriate. The Court places a great deal of responsibility on the office of the Independent Children's Lawyer in cases where such appointment is warranted and I am certainly of the view that the current Independent Children's Lawyer, Ms Rajinder Dhaliwal of Shorehills Legal has met the Court requirements most admirably.
I will make that order and I will make an order discharging the Independent Children's Lawyer.
That leaves the question of the Mother’s other child, [Y]. The Father sought orders that she in fact live with him. This was not supported by the family consultant in the Family Report.
The family consultant noted, and confirmed in her evidence today, that there was just no indication that the Respondent had any particular significant for [Y]. The family consultant said, at paragraph 58:
Even if one relies primarily on Mr Ladna’s affidavit for an account of the time he spent with the family, there were clearly long periods between [Y]’s birth in 2009 when he was not even in the same state as her. Bearing in mind the relationship between Ms Taffy and Mr Ladna, there appears to be no reason for [Y] to spend time with Mr Ladna.
I cannot see any evidence that would persuade the Court that it is in [Y]’s best interests to spend time with the Respondent.
The Respondent, I note, has not attended Court to argue why, in fact, that it would be in her best interests to live with him or even spend time with him. I am strongly of the view that there should be no order in respect of the child [Y]. That part of the Father’s case has not been supported in any way..
Accordingly, the short minutes or orders proposed will be Exhibit 11 and I will make orders in accordance with paragraphs 1 through to 26 inclusive but I make further orders, being 27 to 30 inclusive.
27.The Mother is authorised to sign on behalf of the Father all documents necessary to obtain an Australian passport for [X] born [in] 2003 and the consent of the Father for this purpose is dispenses with.
28.The Mother has liberty to apply to vary these orders on 14 days notice in the event that the Father administers to himself any illicit drug at any time whilst [X] is in his care.
29.Each party is to pay the Independent Children's Lawyer’s fees and disbursements in the sum of $3,824.10 inclusive to the Legal Aid Commission of New South Wales within 29 days of the making of the final orders unless he or she is in receipt of a legal aid grant for these proceedings and/or receives a written waiver of the fee payment from the Legal Aid Commission of New South Wales.
30.That the Independent Children's Lawyer be discharged.
I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 15 December 2011
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