Walters and Castle and Anor

[2007] FamCA 1147

FAMILY COURT OF AUSTRALIA

WALTERS & CASTLE AND ANOR [2007] FamCA 1147

FAMILY LAW - CHILDREN - Child related proceedings where Applicant is former partner of children’s father - where children living with the father - where father unilaterally returns children to mother - where father does not comply with orders made by consent relating to provision of drug and alcohol screens and information relating to his own mental health history, treatment and prognosis - where father attends at Court but subsequently withdraws from the proceedings - where orders made by consent of other parties pursuant to which child continues to live with the mother and spend time with the Applicant

Family Law Act 1975 (Cth)

Applicant: Ms Walters

1^st Respondent: Ms Samson

2^nd Respondent: Mr Castle  

Independent Children’s Lawyer:

File Number: MLF 1055 of 2006

Date Delivered: 2 July 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing date: 2 July 2007

Representation

Counsel for the Applicant: Ms D Weiner

Solicitor for the Applicant: Bowlen Dunstan & Associates Pty

Counsel for the 1^st Respondent: Ms S C Dowler

Solicitor for the 1^st respondent: Hogg & Reid

The 2^nd Respondent: In person

Independent Children’s Lawyer Counsel: Mr P A Marchetti

Independent Children’s Lawyer’s Solicitor: McCluskys

Orders

On the matter of Walters and Castle, number MLF 1055 of 2006:

1. BY CONSENT IT IS ORDERED in accordance with the Minutes of Orders sealed and attached hereto AND IT IS DIRECTED that such Minutes remain upon the Court file.

IT IS ORDERED

1. That the letter dated 2 July 2007 from the father be received as an Exhibit and remain on the Court file.

2. That all documents produced on subpoena be returned to the person or institution providing the same.

3. That my Reasons for Judgment be transcribed with a copy to be placed on the Court file and copies to be made available to each of the father, the mother and the applicant and the Independent Children’s Lawyer.

The Court Notes

1. That the father appeared in person when this case was called on but signified his intention thereafter to withdraw from the proceedings, as can be seen from the Exhibit and did so withdraw prior to the luncheon adjournment.

2. The orders made are consented to by the applicant, the mother and the Independent Children’s Lawyer.

Minutes of Orders 2 July 2007

IT IS ORDERED:

1. That all previous parenting orders be discharged.

2. That the mother, Ms Samson, have sole parental responsibility for the children P born … May 1995 and M born … July 1997.

3. That the children live with the mother.

4. That the children spend time and communicate with the applicant, Ms Walters, as follows:

   (a)during each school term holiday (being the South Australian Term 1, 2 and 3 holidays) from the first Saturday of each of the school term holidays until the following Friday (the mid-Friday of the school holidays);

   (b)during the long summer holidays from Boxing Day until 10 January in each year;

   (c)by telephone at all reasonable times;

   (d)at such further or other times as may be agreed between the mother and Ms Walters.

5. That the children spend time and communicate with the father at such times and upon such conditions as may be agreed in writing between the father and the mother from time to time.

6. That for the purpose of changeover between the mother and Ms  Walters pursuant to paragraph 4 herein, each of the mother and Ms  Walters do all things necessary, including respectively delivering and collecting the children to and from the Adelaide and Melbourne airports (if applicable), AND Ms Walters be solely responsible for the cost of travel (including all air travel) and provide to the mother with at least 7 days notice of scheduled tickets and travel itinerary; AND IT IS NOTED that it is intended that the children shall travel by air unless otherwise agreed.

7. That the appointment of the Independent Children’s Lawyer be otherwise discharged.

8. That all extant applications be otherwise dismissed.

9. That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

IT IS DIRECTED

1. That the Minutes of Consent Orders remain on the Court file.

IT IS CERTIFIED

1. That pursuant to Rule 19 of the Family Law Rules this matter reasonably required the attendance of Counsel.

AND IT IS NOTED

A.That the father has this day sought to withdraw from the proceedings and has advised that he does not seek to further pursue times or communication with the children at this time.

IT IS NOTED that publication of this judgment under the pseudonym Walters & Castle and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1055 of 2006

MS WALTERS  

Applicant

and

MS SAMSON  

1^st Respondent

and

MR CASTLE
2^nd Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting orders in relation to two children, P and M.  The child P is now 12 and the child M will be 10 in less than a week's time.      P and M are the children of Ms Samson and Mr Castle.

2. Ms Walters is the applicant in the proceedings before me.  She was a partner to Mr Castle and the children share a significant relationship with her going back to the period of time that Ms Walters was associated with Mr Castle.

3. There have been concerns raised about the capacity of Ms Samson, (“the mother”), in the past and these concerns were addressed on a number of occasions, but were again raised when the matter was the subject of a Pre-Trial Conference earlier this year on 4 April 2007.  Mr Castle (“the father”), appeared in person at that time, however, all other parties were represented by legal practitioners.

4. Orders were made by consent by a Registrar of this Court at that Pre-Trial Conference, one of which was for the father to undertake supervised random urine drug and alcohol screens as might be requested by the Independent Children’s Lawyer and also for the father to file an affidavit by his treating mental health practitioner on or before 25 May 2007.  The affidavit was to detail the father's mental health history, the diagnosis, the prognosis and the father's treatment and compliance with such treatment.  The father was also ordered to file and serve an amended response setting out with particularity the orders which he sought.  That was required to be done on or before 27 April 2007.

5. The father has not done any of those things.  I have been told today by Mr Marchetti, who appears on behalf of the Independent Children’s Lawyer, that two separate screens were requested of the father.  He did not respond.  The father has acknowledged that he did not provide an affidavit by his mental health practitioner.  His explanation for his omissions in both regards was that he had overlooked the requirement completely.  I will return to this in a moment.

6. The mother was also required to provide an affidavit detailing matters similar to those required of the father and this affidavit was required to be filed by no later than 25 May 2007.  In compliance with that order an affidavit of Dr J was filed on 24 May 2007.

7. It is also relevant to note here that the father had, prior to the Pre-Trial Conference, filed an affidavit in support of his case on 28 March 2007.  It was prepared by the father on his own behalf and it was sworn by him on the same day as it was filed.  He had also filed an affidavit by a former partner and that affidavit was filed on the same day.  The partner was a Ms B.

8. The other matter which is of vast importance is that the father had, of his own volition, returned the two children in question to live with their mother in Adelaide and that took place, as I understand it, in about April of this year.

9. When the matter was called on this morning the father appeared and he did not have legal representation.  I inquired of him as to why he had not complied with the orders to which I have just referred and he responded in terms which I have also outlined.  I had inquired of him also as to whether he sought an adjournment to enable him to comply with the orders, pointing out to him that it would be my expectation that any such application would be met with an application for costs. My anticipation was correct and the father then effectively withdrew his application for an adjournment.  I was not happy about this, that is to say the concept of financial matters superseding the children’s undoubted entitlement (provided they were safe), to have meaningful time with their father and in turn I pointed out to him that it was not unusual for Victorian Legal Aid, who are funding the proceedings on behalf of all three of the other parties, to permit costs to be paid by instalments.  I also pointed out to him that I had the power in any event to make such an order if I thought it was appropriate.

10. The father then seemed to be quite interested in pursuing an application for an adjournment.  However, when I took him further through his reasons as to why he had not complied with the orders I myself became quite concerned about the matter.  It is not appropriate, it should go without saying, for court orders to be disobeyed, but I found, and accordingly said that I thought it was extraordinary that the father could not and had not done all that was necessary to prepare his own case, that is to say, by complying with the orders for the provision of affidavit material and supply of drug and alcohol screens.  As I said, those orders were made some time ago and it was not as if the father had to find a suitably qualified medical practitioner to investigate the situation.  The material was to be provided by his treating doctor and I repeat also that he had consented to the orders.  In those circumstances I felt, and still feel, that simply to say the father had overlooked these requirements was not satisfactory.

11. It was then the situation that further discussion took place and in the course of that it was noted that all parties, including the father would participate in further discussion and negotiations.  If they were able to reach agreement, which included the provision of time to be spent by the children with their father, orders could probably have been made but with a proviso or qualification that the father belatedly, but in any event, comply with the earlier orders.

12. With that in mind I told the father that he should seek some legal advice from the duty lawyer.  As I understand it he had already received such a suggestion and, as I further understand it, he in fact did seek this benefit.

13. Subsequently, the matter was further stood down on a number of occasions to enable the discussions to continue and when the case resumed after the luncheon adjournment I was informed by Mr Marchetti that the father had in fact, as I have said, sought assistance from the duty lawyer and just prior to the luncheon adjournment had decided to withdraw.  That information was provided by the duty lawyer to Mr Marchetti and it was also provided by the father in person to Mr Marchetti.  The father also provided a written statement which I will refer more to in due course.

14. Part of the discussions which took place involved further information being sought from Ms T, who has prepared no less than three family reports in these proceedings, and following discussions the father was informed, prior to his withdrawal, in broad terms of what the orders were which the Independent Children’s Lawyer would recommend and which appeared to be, at least broadly at that stage, to form the basis of a negotiated consent by the other parties.  Notwithstanding that information, the father has in fact withdrawn and has determined that he will not play any further part in these proceedings.

15. I have had the benefit, as I have said, of a number of family reports prepared by Ms T.  I have also had the benefit of a Summary of Argument on behalf of all parties, other than the father, and Case Outline Documents.  I have read the relevant affidavit material and I have read the matters set out in the parties' respective Outline of Arguments.

16. It needs to be recalled that Ms Walters is not a parent of either child, but the children did live with her for a significant period of time and she must be regarded as a significant adult in their lives.  She is a person with a requisite interest under the provisions of Part VII of the Family Law Act.

17. The orders which I have been asked to make bring to an end proceedings before the Court in as much as any children’s proceedings can ever be completely finalised. The proposed orders are consistent with the recommendations made by Ms T in her most recent report and during the discussions which took place today.  They provide for both children to live with the mother.  She lives in Adelaide and the children, as I have already noted, were returned by their father to her a couple of months ago.

18. Provision is made for the children to spend time and communicate with Ms Walters, the applicant, during school term holidays, as well as the long summer vacation and also by telephone.

19. Provision is made also for the children to spend time and communicate with their father at such times and upon such conditions as may be agreed in writing between the father and mother from time to time.

20. Relevantly and significantly it is proposed that the mother have the sole parental responsibility for both children.  This has to be the case in my view if for no other reason than reasons of geography, but in any event the actions of the father leading up today’s hearing, and indeed today, make this an essential and inevitable result.

21. In making the orders I have regard to the objects of Part VII of the Act as well as the principles underlying those objects.  Above all, and as I am required, I regard the interests of these children as the paramount consideration.

22. In all the circumstances of the case I am more than satisfied that the best interests of the children P and M will be served if I make the orders as requested.

23. I will order that the short note from the father signifying his intentions today be received as an exhibit and remain on the Court file.  I will make an order that the subpoenaed documents are returned.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter

Associate

Date:  7 September 2007