Trieste and Nettles

[2017] FamCA 483

FAMILY COURT OF AUSTRALIA

TRIESTE & NETTLES [2017] FamCA 483

FAMILY LAW – CHILDREN –  no appearance by father – matter set down for trial – father to have opportunity to participate – suspension of orders not appropriate made earlier by consent relating to very young children.

Family Law Act 1975 (Cth)

APPLICANT: Ms Trieste

RESPONDENT: Mr Nettles

INDEPENDENT CHILDREN’S LAWYER: Ms Ebejer

FILE NUMBER: MLC 4342 of 2016

DATE DELIVERED: 3 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkinson

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Eberjer, Agrocola Wunderlich & Associates

Orders

In the matter of Trieste & Nettles, I make the following orders:

1. That paragraph 4 of the orders made on 3 October 2016 is discharged.

2. That the reasons for the orders this day are to be transcribed and placed on the court file.

3. That all outstanding applications are adjourned to 10.00am on 14 July 2017 for an undefended hearing unless the father attends upon that day to indicate why he was not present on 3 July 2017.

4. That the mother file and serve any affidavit upon which she intends to rely (and if she is so advised) to update material by no later than 4.00pm on 10 July 2017.

5. That service upon the father be by:

   (a)      text message to …; and

   (b)by post to B Street, Suburb C with a letter enclosing the order this day and the affidavit material referred to in these orders may be sent in due course by the same method.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trieste & Nettles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4342 OF 2016

Ms Trieste

Applicant

And

Mr Nettles

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Today is the return date of an order that I made on 13 April 2017, setting down the parenting dispute between Ms Trieste and Mr Nettles.  These proceedings were originally commenced in May 2016 by Ms Trieste.  She sought orders that she have sole parental responsibility, the children live with her, there be no contact between the children and Mr Nettles and that, otherwise, she be permitted to relocate to New Zealand.

2. The most significant fact in this particular case is that the children are aged just two, only a few days ago.  They are twins, obviously, and have lived with their mother since birth.  The relationship between the parents was a very short-lived one.  The parties commenced living together in January 2015 and separated a year later.  It seems that the father has had no contact with the twins since that time.

3. The affidavit that supported the application filed in May 2016 goes to graphic length in relation to issues of violence.  That is corroborated by photographs which are rather unpleasant.  There are other children who have also witnessed what went on in that 12-month relationship and the mother deposes to the fact that one of them had to intervene when she was being strangled.  It seems that there was an intervention order made, at which the father was present, although he made no admissions, and later in 2016, a final intervention order indefinitely was put in place at which he did not attend. 

4. Throughout 2016, the father was represented by lawyers who prepared an affidavit for him in response to the mother’s affidavit.  His affidavit, filed on 31 May 2016, is remarkably short.  He simply denies any allegations of physical violence and makes counter-accusations of the mother physically harming herself and the need to call an ambulance, police and mental health units.  The truth of that matter probably will never be known in this case, but it matters not because, as a result of Court proceedings in 2016, a psychiatrist examined both parties.  The examination of the father was enlightening because the psychiatrist said some uncomplimentary things about him.

5. In October 2016, the matter came back before the Senior Registrar and the parties, who were then represented by practitioners other than those before the Court today, including a different Independent Children’s Lawyer, agreed to – and the Senior Registrar made an order in the following terms:

   The father spend time as can be accommodated by either of two contact centres with the said children, but no less than once a fortnight.

6. It does not take much imagination to realise that, as at October 2016, the father had not seen these children for 10 months.  10 months in most children’s lives is not a long period, and on the basis that some form of attachment or relationship has developed, they can quickly pick it up again.  But at the time these children last saw their father, they were only six months old.  Commonsense dictates that they would not have had any idea who the man was that they were being taken along to see.

7. I have an enormous amount of respect for and confidence in the contact centres, but how a complete stranger at a contact centre could have developed a relationship between father and children escapes me.  The function of the contact centre is to protect children.  It seems to me that that order did exactly the opposite of that and would have created confusion in these children’s minds.  They may not have remembered some of the traumatic violence that occurred to their mother, it still does not explain why an order would be made that a stranger supervise in circumstances where what these children needed was to develop a relationship from the very start.

8. In those circumstances, as a judge of this Court having delegated the responsibilities to the Senior Registrar, the Court, at all times, has the responsibility to ensure that if the judges are disquieted by orders that are made to the persons to whom that delegation is given, the Court must remove, even on its own motion, those orders if they are unsatisfactory.  It seems to me that that order should never have been made, whether by consent or otherwise.  In those circumstances, I propose to discharge paragraph 4 of the orders.

9. This matter needs to be set down for trial.  The solicitors who had acted for the father have filed a notice for ceasing to act and that only occurred after the Court advised them of today’s hearing.  I am not at all sure, from the notice, whether or not the father has been told of today’s hearing, but one might conclude that a competent practitioner would have actually advised the father because they have at least told the Court of the father’s last known address and telephone number.  In those circumstances, on the assumption that the father did not participate in the final intervention order proceedings and has not attended today, I see no reason why this case should be held up any longer.  If, indeed, the father is still interested in the proceedings, then he can attend on 14 July and make an appropriate application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 July 2017.

Associate: 

Date:  11 July 2017