Tomey and Anders

[2007] FamCA 1012

FAMILY COURT OF AUSTRALIA

TOMEY & ANDERS [2007] FamCA 1012

FAMILY LAW – parenting – final orders – seriously ill child – father discontinued proceedings.

Family Law Act 1975 (Cth)

FATHER: MR TOMEY

MOTHER: MS ANDERS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3609 of 2005

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 24 August 2007

REPRESENTATION

SOLICITOR FOR THE FATHER:

No appearance

Harwood Andrews Lawyers

COUNSEL FOR THE MOTHER: Ms. Goldsworthy

SOLICITOR FOR THE MOTHER: Samantha Ward Pty.

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms. Smith

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That paragraph (3) of the orders made in the Magistrates’ Court of Victoria at Geelong on 12 October, 2005 be discharged.

1. That the time the father spends with the children [J] born … December, 1999, [T] born … December, 2002 and [B] born … September, 2005, and the communication the father has with the said children, be as agreed between the parties.

1. That the independent children’s lawyer be discharged forthwith. 

1. That a sealed copy of these orders be sent to the husband at his address for service on the record prior to him filing a notice of discontinuance on 20 August, 2007.

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown will for all reporting and publication purposes be known as Tomey & Anders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  3609  of 2005

MR TOMEY

Father

And

MS ANDERS

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. The parties commenced a defacto relationship in 1999 and lived together until about February 2004.  In that period they had two children, J, born in December 1999, and T, born in December 2002.  After they separated they maintained a relationship, and were intimate on a number of occasions.  The mother became pregnant again;  their third child, B, was born in September 2005.  Since separation all the children have lived with the mother and I am satisfied she has been their primary caregiver.

1. Final parenting orders were made, by consent, in the Magistrates’ Court at Geelong on 12 October 2005.  They provided for the three children to live with the mother, for her to be responsible for their day to day care, welfare and development, and for their parents to retain responsibility for their long-term care welfare and development.  Those are final orders. 

1. The orders further provided that, until further order, contact between J and T and the father occur on Wednesdays, from 3 pm. to 7 pm., on Sundays from 11 am. to 4 pm., for three hours on their birthdays, on Christmas day and at other times by agreement.  In respect of B, who was tiny at that time, an interim order provided for the father to spend up to one hour with him at the mother's home, prior to commencing his time with J and T on Wednesdays. 

1. At that time a number of specific issues orders were made, relating to notification to the other parent if a child were ill;  access to information about creche, kindergarten, preschool or school;  and protection of the children from what was alleged to be a potentially risky environment at the father's mother's home.

1. The application was then transferred to this court.

1. The father filed a contravention application on 19 December 2005.  The contravention application has not been determined.  The central issue through the life of the proceedings has been the question of the time the father is to spend with the children.  The father has another daughter, S, who is now about 12, from an earlier relationship.  It is clear from Ms. M’s report that S is important to these children;  they like her and want to spend time with her.  It is to be hoped they can maintain that relationship, consistent with their needs. 

1. The father is in a relationship with Ms K.  Ms K used to be married to mother's brother;  she is a former sister‑in‑law of the mother.  Ms. K has a son L, who is J, T and B’s cousin;  as his mother is in a de-facto relationship with their father, L is also the father's de-facto stepson.

1. The evidence on which I rely is substantially that contained in the report of Ms M, dated 21 March 2006.  I have read such material as has been filed by the parties but, as circumstances have evolved, Ms M’s report provides a good summary and has the virtue of objectivity. 

1. The case having moved through a number of case management events, both parties signed consents for it to be dealt with pursuant to Division 12A of the Family Law Act 1975 and it was listed for a trial to commence today. On 20 August the father filed a notice of discontinuance, discontinuing his initial application for final parenting orders filed on 31 August 2005, and every other application on foot, including the contravention application. He thus seeks no orders. If the court did nothing, the orders of 12 October 2005 would remain in force and effect.

1. For the wife it was submitted (in a submission supported by the independent children's lawyer) that the court should reconsider the existing orders for contact in the light of events since those interim orders were made, and make fresh orders to govern the time the children should spend with the father.  I am satisfied it is in the children's best interests to do so.

1. J was diagnosed with cancer in 2005.  He has an aggressive cancer and has undergone very considerable treatment.  He has been a very sick little boy and he will require monitoring and treatment for quite some years.  His prognosis is uncertain.  He has missed a lot of school be has had a tutor.  He is involved with Very Special Kids, a wonderful organisation for children and families in these circumstances.  He has done a Ronald McDonald learning program.  The greatest good fortune that J has, in a life marked by very serious illness, is the love and devotion of his mother.

1. What is made clear in Ms M’s report is that the father has not been able to balance his own emotional need to move on, with the imperative and overriding needs of J’s medical crisis and its attendant physical and emotional demands.  What these children needed was good quality separated parenting, rather than confrontation, and a regime in which the father saw the children or failed to see the children to suit his own convenience, depending on his own whims and interests.

1. Ms M noted that the court proceedings were unlikely to resolve the emotional issues.  For that reason, the matter was put in this Less Adversarial Trial list, as families often find it of great assistance to work with the experienced professionals in this court to move towards better communication, and more cooperative parenting.

1. The reality is that the father's time with J has been impacted by J’s illness, but also by the father's incapacity to come to terms with his parental responsibility.  He stopped seeing T earlier in 2006, and he has refused to acknowledge paternity of B.  He pays child support for the two older children.  Mutual intervention orders have expired.  They were made at a time there was a great deal of tension, exacerbated not only by J’s illness but by the father forming a relationship with the mother's former sister-in-law.

1. The mother seeks an order that the time the father spends with the children be as agreed between the parties.  Having regard to J’s special needs that is a sensible solution.  It carries the potential for him to have a much more meaningful involvement with all the children, if he seeks that involvement. 

1. A primary factor when considering where children’s best interests lie, is the importance of children maintaining a meaningful relationship with both parents.  However, the court cannot force a parent to have a meaningful relationship with a child or be sensitive to a child’s needs.  The mother has done her best but it is out of her hands.  The best she can do from now on is to continue to foster such relationship as the father is prepared to have, but always in the context of protecting the children's psychological and emotional health.  I am confident she will continue to put the children’s needs ahead of her own and that she understands the importance to children of their relationship with both parents.

1. Because a parenting order will be made, the court is required to consider the presumption of equal shared parental responsibility.  The parties agreed on 12 October 2005 to an order, couched in final terms, that they retain responsibility for the long-term care, welfare and development of their children.  Pursuant to that order, the parties can exercise that responsibility jointly and severally.  The mother must be in a position to make vital decisions relating to J’s long-term care, welfare and development without the necessity to delay the decision to find the father and, as importantly, ensure he give the issue his undivided attention.  She can do that, pursuant to the existing order.  Were the court to make an order for equal shared parental responsibility, that responsibility would need to be exercised jointly, rather than jointly and severally, and I am satisfied that would not be in the children’s best interests.

I certify that the preceding
17 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.