Tilberg and Leiko

[2011] FamCA 327

FAMILY COURT OF AUSTRALIA

TILBERG & LEIKO [2011] FamCA 327

FAMILY LAW - CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Tilberg

RESPONDENT: Ms Leiko

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1826 of 2009

DATE DELIVERED: 25 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 25 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Crawford

RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Ms Costello

Orders

The Court noted that:

(A)     This matter was listed at 11.30 am today;  it is 11.35 am.

(B)     The mother has been called outside the court and does not appear.

And it is ordered that:

1. The father have sole parental responsibility for the child D born … June 2001.

2. The child live with the father.

3. The mother have telecommunication with the child each Sunday between

   
   

   5.00 pm and 6.00 pm Australian Eastern Standard time or, if applicable, Australian Eastern Daylight Saving time.

4. The mother be and is hereby restrained from approaching the child or any school which the child shall attend including the S School without first obtaining the further Order of the court.

5. Each party be and is hereby restrained from denigrating the other to or in the presence of the child.

6. The mother be and is hereby restrained, either personally or by her servants and/or agents, from removing or causing the removal of the child from the Commonwealth of Australia

   AND THE COURT REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child D (male) born … June 2001 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further Order of the Court, save and except should the child be in the company of the father at the time upon which he is to travel outside the Commonwealth of Australia.

1. Pursuant to Section 65DA(2) and Section 62B, 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 adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

2. All material produced in response to subpoenas is to be returned to the party who produced it.

3. The matter is removed from the list of Active Pending Cases.

IT IS NOTED that publication of this judgment under the pseudonym Tilberg and Leiko is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1826  of 2009

Mr Tilberg

Applicant

And

Ms Leiko

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before the court are proceedings between Mr Tilberg, the father and Ms Leiko, the mother, with respect to the parenting of their child, D, born in June 2001 and who is presently nine years of age.  The matter having been listed before me, there was no appearance of the mother.

2. I am informed by the father’s counsel that the mother departed for country 1 in Northern Europe on or about 3 August 2010 and that he does not presently know her address.  He believes she resides in City 1.

3. The mother presently has telephone contact with the child once per week.  I am informed by the Independent Children’s Lawyer that at a telephone mention on 4 March, she was requested to provide a letter to the mother and that letter was sent, both by email and by mail to her last known address, and to the mother’s former solicitors and a copy of that letter is exhibit 1.

4. The court specifically notes the mother was informed that if she did not appear on the next occasion before the court the father would seek to have the matter dealt with on an undefended basis and that request would be acceded to.  The mother has not appeared on occasions.  She has failed to comply with directions of the registrar as to the filing of a parenting questionnaire, a chronology or a case outline.  She has failed to attend interviews with the court appointed child psychiatrist, Dr M, and has not provided for his fees as required by orders of Judicial Registrar Johnson, as he then was, made on 13 July 2010.

5. The child has resided with the father since 15 December 2009 and has not been seen face to face by the mother in accordance with orders made in these proceedings since late July 2010.  The father was subject to an interim domestic violence order made at the request of the mother on 22 April 2009 and those proceedings were disposed of by an order made on 2 December 2009.  That order dismissed the application for orders.

6. The request by the father that the matter proceed undefended has been agreed to by the Independent Children’s Lawyer.  The arrangement for the care of the child has been the subject of a number of child and parenting assessments, the most recent of which was made on 10 March 2010.  That report canvassed the history to that time but relevantly observed that the father was aware of the difficulties and confusions the child was likely to experience in his then situation and assessed that on self report, at least, he seemed to manage D’s anxieties and behaviour sensitively.

7. The father observed that the child displayed, on occasion, irrational beliefs and put this down to exposure to the mother.  The mother expressed the view to the assessor that she had been badly treated by mental health professionals and opposed the child being part of any assessment process.  She had, on observation, difficulty in accepting that the child might have an emotional attachment to the father.

8. It was observed by the assessor that the mother, who was not then pursuant to the orders, the person with whom the child lived had represented to the child on a number of occasions that he would soon return to her care.  This, it seems, was likely to have created an expectation of change and upheaval in the child’s life and it was suggested that generally such condition can lead to the development of fears and anxieties in the child associated with displeasing one or both parents.

9. It was suggested as a possibility that the child might have been exposed to abuse and threats between the parents.  It is noted that the one court proceeding in relation to alleged violence has been dismissed.  The assessor responsible for the authorship of that report recommended that an assessment be procured from a psychiatrist and that seemed to be in the light of the assessor’s concerns that the mother’s attitude to health professionals and her inability or failure to accept that D might have any emotional attachment to his father.

10. The father, in his evidence, describes a fear he has that there may be an attempt by the mother to remove the child from Australia.  This echoes a similar concern expressed by the assessor.  He describes the living arrangements for the care of his son and they seem to be satisfactory and cater for the proper care and ongoing, albeit telephone contact, with the mother.  The child has a relationship with his extended family.  The child enjoys a range of extra curricular activities, including sport and the father testifies that he assists the child with his homework.

11. The father is able usually, it appears, to arrange his working hours so that he takes the child to and from school.  If he is not for any reason able to do so, he makes arrangements for after school or pre school care.  During school holidays he says he is able to take off about half of the time allocated to them from work and spend with the child.  Otherwise he makes arrangements for the child to be in vacation care.

12. The child attends S School where he is in fourth class.  The court is informed by the Independent Children’s Lawyer that the child appears to be progressing well at school.  The child has, it is said, a social network of friends and does engage in leisure activities as previously indicated with his father.  He appears to enjoy good health.  The mother is not, it is asserted, presently paying child support which has, in any event, been assessed only at $29.67 per month.  It seems the father is bearing the burden of the costs of caring for the child.

13. The father proposes that the child continue to live with him and that he exercise sole parental responsibility for the time being at least.  He is not opposed, he says in his affidavit evidence, subject to he being able to be reassured that the mother’s health is stable and does not present a problem for the child, to consider making arrangements for the child to spend more time with her should she return to Australia and providing what he describes as appropriate safeguards are in place to ensure the child’s wellbeing.  He confirms that he will continue to facilitate telephone and Skype communication with the mother and her family as at present.  However, he believes that no order should at this time be made that the child otherwise spend time with the mother.

RECORDED   :   NOT TRANSCRIBED

1. The father proposes the child be educated to a level commensurate with his ability and his capacity to fund that education.

2. I propose to make orders in the terms proposed, in the absence of the mother and given the location, in particular, of the mother, her absence of any address, her failure to participate in these proceedings and her inability to accept any possible attachment between the child and the father of a positive nature and her apparent inability to communicate with the father, and the matters set out above.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 25 March 2011 .

Associate: 

Date:  12 May 2011