Thomas and Lawrence

[2012] FamCA 119

FAMILY COURT OF AUSTRALIA

THOMAS & LAWRENCE [2012] FamCA 119

FAMILY LAW – CHILDREN - Final children and parenting orders – Non-appearance by applicant mother – Non-compliance by both parents with previous orders – Failure to attend appointment with Family Consultant – Failure to comply with reasonable requests of the Independent Children’s Lawyer and attend drug and urine screening – Father now seeing children – Arrangements made between parents – Strike out of all proceedings and finality

APPLICANT: Ms Thomas

RESPONDENT: Mr Lawrence

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10274 of 2009

DATE DELIVERED: 7 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 7 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Hoban

SOLICITOR FOR THE RESPONDENT: Hoban Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

Orders

IT IS ORDERED:

1. THAT paragraph 2 of the Orders made 19 August 2011 and paragraph 5 of the Orders made 3 February 2010 be discharged.

2. THAT the parties are to arrange an appropriate changeover venue in or around Town K that is suitable for collection and return of the child J and, by agreement, the child M.

3. THAT otherwise all extant applications are dismissed and the proceedings are removed from the docket of Young J.

4. THAT the Subpoenas Clerk, Melbourne Registry, Family Court is to forthwith return all files, records and documents subpoenaed to this Court to the persons or organisations from whom they were received.

5. THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.

6. THAT any previous reserved costs orders be discharged.

7. THAT the s 11F assessment from the Family Consultant Ms L be accepted into evidence and remain upon the Court file.

8. Pursuant to s 62B and s 65DA, the particulars of 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS NOTED

A.THAT the existing and ongoing order is for J to live with the mother and father and that his time spent with the father is to be from 11.00 a.m. Friday to 11.00 a.m. Monday in each week, and otherwise as agreed and that is pursuant to paragraph 3 of the order by consent pronounced 3 February 2010.

B.THAT otherwise all requirements for the parties to attend upon a Family Consultant or for any other medical or drug investigation purpose are now discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Lawrence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10274 of 2009

Ms Thomas

Applicant

And

Mr Lawrence

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter involving Thomas and Lawrence and the Independent Children’s Lawyer was again relisted before me for case management this day. Mr Bult appears as the Independent Children’s Lawyer. Mr Hoban, solicitor, appears for the respondent father, and there is no appearance by or on behalf of the mother. She was called out of Court and did not appear. The matter was last before me on 16 December of last year, and on that occasion I ordered an update report and assessment of the parties to be prepared pursuant to section 11F of the Family Law Act 1975 (Cth).

2. I have before me an affidavit annexing a brief report from the family consultant, Ms L.  That report identified that appointments were made for the mother and father to attend but they did not honour those appointments.  Subsequent appointments were also not fulfilled.  There were various telephone messages left.  In that context there is a very brief summary provided to the Court by Ms L where she said that:

   The mother advised she is living with the children in [Town K], approximately 300 kilometres from Melbourne.  She stated that the father is also living in [Town K] and is spending regular time with the children.  The mother in her view does not identify any problem and has indicated that she and the father have been attempting to extricate themselves from legal proceedings for some time.

3. Ms L has also advised that the father had communicated an intention not to pursue changes to the current parenting arrangements that exist pursuant to earlier orders of this Court made 19 August 2011 and prior to that and more substantially made pursuant to consent orders on 3 December 2009.  There have been various orders made in this Court requiring the parties to attend counselling, to provide drug samples for analysis or otherwise for the purposes of medical reports.  Those orders have been largely ignored by the parties.  The mother has also changed her accommodation and is seemingly now living in or near to Town K in country Victoria.

4. There is material before the Court of and concerning the welfare of the first child of the relationship, J, and there are now other issues that have been initially identified with the Court concerning the second child, M.  It is presumed that the father is spending some level of time with both children, but whether that time accords to the previous ordered time or otherwise as negotiated by the parties is unknown.  On behalf of the children Mr Bult has identified the need for finality and has indicated to the Court that it would not be in the interests of justice, the better management of these proceedings or, more particularly, of the children for there to be further court adjournments. 

5. Mr Hoban, on behalf of the father, advised the Court that he has had real difficulty in maintaining contact with and getting proper instructions from his client.  That said, however, his client did ring him this morning and foreshadowed further application being filed to deal with matters of and incidental to his time with M.  What Mr Hoban disclosed to the Court was that there is current goodwill in the relationship between the parents and that the father is spending time with J and presumably with M.  The father had indicated his desire to further adjourn the matter for at least six months.  The advice given to him by Mr Hoban and conveyed to the Court this day is that would be inappropriate and finality is needed in this matter.  I wholly agree. 

6. I have been patient in the dealing with this matter and there have been various adjournments on the basis that the parties would comply with court orders, seek reports or attend upon a family consultant or otherwise comply with the reasonable requests of the independent children’s lawyer over concerns of establishing drug taking or other inappropriate actions.  Ultimately there is no compliance by either the mother or father with the orders of the Court or the requests of the Independent Children’s Lawyer.

7. The Court can at least be satisfied that the parties have re-established a relationship sufficient to enable the father to enjoy time with the children.  Therefore it would seem that the substantial order remains that of 3 December 2009 and that the time the father should be enjoying with J and thereafter perhaps with M is from 11 o’clock Friday to 11 o’clock Sunday – 11.00 a.m. Sunday in each week. 

8. Subsequently I have made orders varying the collection date of J, the most recent order being that of 19 August 2011, paragraph 2 thereof.  What I propose to do is to discharge that order and any other collection order so that the parties are free to exchange the children in and around Town K as may be convenient to their lifestyle. 

9. I will separately discharge the appointment of the Independent Children’s Lawyer and all extant applications now alive in these proceedings will be discharged.  That will conclude proceedings in this Court. 

10. I emphasise, therefore, to the parties when they receive a copy of the final orders and these ex tempore reasons for judgment that there are no matters alive, and if any other application hereafter is to be brought, then a fresh application will be required.  Given the time and effort of the Court and practitioners already spent on this matter and the total lack of cooperation and, seemingly, interest of the parties, one would expect that they would sort out future issues themselves and not have recourse to this Court as a matter of convenience, particularly if they remain uncommitted to any outcome and not prepared to comply with the management orders of the Court.  I will have these brief reasons transcribed, placed upon the court file, and they are to be forwarded by the lawyers to each of the parties.

    RECORDED  :  NOT TRANSCRIBED

11. So for the purposes of completeness Mr Bult has provided me the further consent orders pronounced by the Senior Registrar on 3 February 2010.  Again they were by consent, and I can see that they do discharge all existing parenting orders, and therefore the orders of 3 December 2009 have been discharged.  These orders, that is, the orders of 3 February 2010, do provide in paragraph 3(a) thereof that the father to enjoy time with his son J from 11.00 a.m. Friday to 11.00 a.m. Monday in each week, and that is one and the same as the earlier order.  So for the purposes of these ex tempore reasons I clearly identify that the operative and continuing order as to time spent with J is that paragraph 3 of 3 February 2010.  Insofar as it refers to changeover at the Suburb F Police Station in paragraph 5 or subsequently as I varied pursuant to the subsequent orders made, those orders will be discharged, and the changeover will be in or around Town K.

    RECORDED  :  NOT TRANSCRIBED

12. I just want all the parties to have a copy of the documentation so they understand there are no proceedings alive in this Court.  The past orders continue but extend only to J.  The parties must co-operate about M given that the father has been shown to be the biological father of M, which I understand to be the case.

    RECORDED  :  NOT TRANSCRIBED

    These parties have elected to take the matter out of the Court by their own disinterest and lack of compliance with court orders, and now they can manage these matters themselves.  I will also require various exhibits to be returned by the subpoenas clerk of this Court to the various hospitals, police, Department of Human Services and the like, and I will incorporate that matter within the orders that I will now pronounce.  So the reasons can there cease, but the transcript will include that discussion with Mr Bult and my subsequent comments. 

    ORDERS DELIVERED

13. I see there’s an ongoing injunction that they not use illicit or non-prescription drugs, but I think I will just leave that current and then go back before the notation and put in the usual 65DA(2) and 62B order plus fact sheet.

I certify that the preceding Thirteen
(13) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 7 March 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………