Walsh and Princeton

[2007] FamCA 305

FAMILY COURT OF AUSTRALIA

WALSH & PRINCETON [2007] FamCA 305

FAMILY LAW - PARENTING – Final  -  Mother playing no role in proceedings

Family Law Act, 1975 (C’th)

FATHER: Mr Walsh

MOTHER: Ms Princeton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1344 of 2005

DATE DELIVERED: 19 February 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Brown J

HEARING DATE: 19 February, 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Ms Cox

SOLICITOR FOR THE FATHER: Robb & Associates Pty. Ltd

NO APPEARANCE FOR THE MOTHER:

THE INDEPENDENT CHILDREN’S LAWYER Ms Terrill, Loretta Terrill Family Lawyers

.

Orders

1. That all previous parenting orders in respect of the child, a son, born in April, 1999 be discharged.

1. That the father have sole parental responsibility for the child.

1. That the child live with the father.

1. That the mother spend time with the child as agreed, such time to be supervised by a person nominated by the father.

1. That in the event there is no appropriate person willing to supervise the mother’s time with the child pursuant to the preceding paragraph, the mother spend time with the child for two hours each fortnight at the A Contact Service and each party do all acts and things necessary to avail themselves of that service. 

1. That the mother be restrained from leaving the child in the sole care of her father, the maternal grandfather.

1. That the independent children’s lawyer serve a sealed copy of this order on the mother by sending it by ordinary pre-paid post to her last known address.

1. That the independent children’s lawyer’s application for costs this day be dismissed.

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.

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

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 1344 of 2005

MR WALSH

Father

And

MS PRINCETON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT 

1. In this matter the court is asked to consider final parenting orders in respect of the parties’ son, who was born in April 1999.  The initial application was filed in the local Magistrates’ Court and transferred to this court in April 2005.  The applicant then was the child’s mother, Ms Princeton.  However, it is clear that she has taken little part in the proceedings for quite some time.  She did not appear at the callover on 12 February, 2007.  I listed the case today for an undefended hearing, it being my view that the child’s best interests require a final determination, notwithstanding the mother's apparent withdrawal from these proceedings.  She has been called again today and has not appeared.  The evidence is that her last contact with the child was on 7 January.  I do propose to hear and determine the case today, a course supported by the independent children’s lawyer.

1. The mother is 27, the father 29.  They began living together in 1999 and the child was born in April of that year.  They separated in August 2004.  The mother has a long history of mental health problems and admissions to mental health facilities.  She was voluntarily admitted to K Centre in W in March 2005.  It was after that admission that she filed the application seeking parenting orders in respect of the child which was transferred to this Court.  She was again admitted (for involuntary treatment) to the K Centre on 20 April and the then arrangement, which was for weekabout care, ended at that time.

1. The mother did not attend the pretrial conference in May 2006.  She did not attend a subsequent appointment (arranged pursuant to a court order) for a psychiatric examination, or for the family report interviews.  The evidence is that she occasionally rings the father and asks to see the child.  The father has accommodated and facilitated those request, however - reasonably in my view, having regard to the evidence - he has required her time with the child to be supervised.  On only one occasion, being an occasion she sought contact for a weekend without supervision, has he refused her request.

1. Evidence which supports the necessity for a form of supervision, given the child's age, is raised in the father's material.  Among facts which raise an unacceptable risk of harm are alleged drug use, the carrying of a gun, the people with whom the mother has been associating and her mental health.  Having regard to the mother’s failure to attend for the psychiatric assessment, the last matter is of significance.  The evidence supports a finding that the environment in which the child lives when with her is not a safe one. 

1. The child has now lived with his father for some time.  The evidence is that he has settled in well.  He has made significant improvements at school in the year he has been with his father.  I am satisfied the father has the capacity to attend to his intellectual and emotional needs, as well as his practical day-to-day needs. 

1. The child lives with his father in his home in the Albury/Wodonga area.  It has a secure backyard.  The child has his own room.  His school is nearby, as are other services.  The father arranges his work schedule to fit around the child’s school hours.  The father’s mother, who lives in the Albury/Wodonga area, has been supportive of her son and grandson and has played a significant role in the child’s life.  She assists with his care and plays a role at his school, which is a wonderful thing for a grandparent to do.  The evidence is that the child is an active boy; he loves getting out on his bike and playing games.  He is reaching appropriate developmental milestones.  Nothing suggests that he is not thriving in his father's care, and that is to his father's credit.

1. The Family Law Act1975 is built on twin pillars.  The first is the importance of children having meaningful relations to the maximum extent possible with both parents so long as that is consistent with their best interests; the second is the importance of protecting children against physical and emotional abuse and harm.  In this case I have no doubt that the court must prioritise protecting the child from harm and ensuring that he is in a safe environment.  It cannot find the mother’s environment to be safe or secure for him.

1. I am satisfied that the presumption of equal shared parental responsibility is rebutted.  When one parent, for whatever reason, elects to play either no role or an occasional, intermittent and sporadic role in a child's life, it is not practicable for the parents to share parental responsibility.  The child’s best interests demand a parent who is willing and able to make responsible decisions about long-term matters, and a parent who is committed to his welfare.  The father has demonstrated that capacity and commitment.  I am satisfied he will foster the child’s relationship with his mother, as long as he is confident the child will not be at risk.  In those circumstances, I propose to order that the father have sole parental responsibility for the child.

1. The independent children’s lawyer has made an application for costs.  In cases such as this, the work of an experienced and able independent children's lawyer is invaluable.  When a matter is undefended, it is particularly useful to have input from an independent children's lawyer, as the Court can be confident all necessary inquiries have been made and hear submissions from an independent source.  The father receives no financial assistance from the child’s mother.  He has sole financial responsibility for him.  I do not find it appropriate that he contribute to the independent children’s lawyer’s costs.

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

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WALSH & PRINCETON