Webb and Seagar - [2011] FMCAfam 1554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEBB & SEAGAR

[2011] FMCAfam 1554

FAMILY LAW – Parenting orders – final orders made 9 September 2010 – changed circumstances – father not attended for psychiatric assessment nor family report – adjournment application of the father dismissed – orders made as proposed by mother and Independent Children’s Lawyer.

Family Law Act 1975, ss.60CC(2), 60CC(3)

Applicant:

MS WEBB

Respondent:

MR SEAGAR

File Number:

MLC 1612 of 2010

Judgment of:

Hartnett FM

Hearing date:

28 November 2011

Delivered at:

Mildura

Delivered on:

28 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Melilli

Solicitors for the Applicant:

Martin Irwin & Richards

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms McNamee

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

THE COURT ORDERS by consent of the Independent Children’s Lawyer and the Mother and undefended by the Father THAT:

The children of the relationship X born (omitted) 2004 and Y born (omitted) 2006 live with the Mother.
The children spend time with and communicate with the Father each alternate weekend from 5pm Friday until 5pm Sunday commencing 9 December 2011.
The Order appointing the Independent Children’s Lawyer dated 6 June 2011 be discharged.
All applications are dismissed and the matter removed from the list of cases.
Pursuant to r.21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

IT IS DIRECTED THAT:

The Minute of Order Proposed by the Applicant Mother dated 28 November 2011 and marked ‘Exhibit A’ be placed upon the Court file.

AND THE COURT NOTES THAT:

Pursuant to s.62B and s.65DA(2) 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 are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 1612 of 2010

MS WEBB

Applicant

And

MR SEAGAR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 9 September 2010, Connolly FM made final parenting orders in proceedings between the mother and father. Those orders provided that the parents share equal parental responsibility for the children of the relationship, X born (omitted) 2004 and Y born on (omitted) 2006. Orders 3 and 4 of those orders effectively provided for the children to live in a week-about arrangement with each of their parents, and the balance of the orders provided for changeover and special occasion times, together with other incidental orders.
On 1 April 2011, being a matter of months later, the mother filed a further initiating application wherein she sought that the children live with her and spend time with their father as agreed between the parties. She sought the discharge of orders 3, 4 and 5 of the earlier orders made 9 September 2010. Those orders were the orders which provided for the week-about arrangement and a changeover location.
The child X is now aged seven years and the child Y aged five years. The mother also sought that the children spend time with their father as agreed and that it be a condition of him spending such time that he provide to the applicant mother a clear drug screen resulting from a supervised drug testing procedure not less than 48 hours before the commencement of such time.
In support of that application, the mother filed an affidavit sworn by her on 1 April 2011 and a further affidavit sworn on 8 April 2011. In the earlier affidavit, the mother deposed to the father having not exercised time spent with the children on a week-about basis since the making of the orders in September 2010. In fact, since the making of those orders, the children have been for the most part in the primary care of their mother.
At the time the orders were made in September 2010, the father alleged the mother had a significant drug problem and an addiction to amphetamines. The mother denied these allegations but the father persisted with them to trial. At that time, material subpoenaed to the Court on the mother’s behalf provided evidence that the respondent father was himself in fact undergoing treatment for an addiction to opiates and suffered from anxiety and depression. The father had failed to disclose such matters despite hospital admissions for his condition.
The father has had the care of the children on only five or six occasions between the making of the orders in September 2010 and the mother’s swearing of her affidavit in April 2011. The mother only allowed the children to spend such time with the father conditional upon the father’s girlfriend, Ms M, being present.
On the weekend prior to the mother filing her application, the father had without warning collected the child X from school on Friday and failed to return her to the mother, instead delivering her to her school late on the Monday morning. The child missed a prearranged school event and birthday party. The child came home to her mother uncertain about the care arrangements between her parents. The mother deposed that the parties’ daughter X did not wish to spend long periods of time with her father, because she found his behaviour erratic and confusing, the child saying, “sometimes daddy is fun and sometimes daddy is sick in bed and spews all the time”. The mother asserted in her affidavit that the respondent father’s health was not sufficiently good, nor his behaviour sufficiently stable, for him to be then spending regular time with the children.
The mother, in April 2011, deposed that in the long term she had no objection to the concept of a shared care arrangement but said that the father had to be honest about his medical issues and that such issues were clearly serious and long term and they required treatment. She required him to tend to his medical health before she could again place the children in his care over any extended period of time.
The mother’s initiating application was first returnable in Court on 11 April 2011. The proceedings had been instituted in the Magistrates Court of Victoria. On that first return date, the father appeared as a litigant in person and stated to the Court that he had been having the children on a week-about basis since the Court order was made on 9 September 2010. I accept the evidence of the mother, as set out in her affidavit sworn 8 April 2011, as to the occasions on which the father has seen the children since the making of the orders and which are set out in paragraph 2 of that affidavit.
In essence, the father has had extremely limited time with the children. The father was absent from (omitted) and in an (omitted) rehabilitation hospital having back surgery for one period of time. On another occasion in October 2010, the father’s mother had contacted the mother asking could she see the children. She lives in Adelaide and had told the mother that she argued with the father (her son) over his drug problems and that as a consequence she had not been permitted by him to see the children. The mother facilitated contact between the children and paternal grandmother for a weekend and at a time when the father was in (omitted) but he making no contact with the mother about resuming his time with the children.
On 20 November 2010, the father told the mother that he had testicular cancer but did not wish the children to know. Later when he attended to pick the children up, he had changed what he was saying as to his medical health and claimed he suffered from depression, but still did not want the children to know. He told the mother that he could not cope with the children for long periods. He had them on that occasion for a single night. He next saw the children on Christmas Eve 2010, returning them at 2pm on Christmas Day to the mother’s care. He had them in his care for a further three days in February in 2011 and again on 6 March until 8 March 2011. The children were not appropriately cared for on each and every one of those occasions and their welfare was not promoted as set out in the mother’s evidence.
Since the making of the Court orders in September 2010, the mother has received part of the Centrelink parenting payment. She also works a casual job. The father receives a part Centrelink pension for his care of the children notwithstanding that the he has had the children on only very rare occasion. He makes no contribution to the mother for the children’s various expenses. The father also receives other benefits and pensions, including a pension from Veterans’ Affairs. He resides with a de facto partner who is in employment. The father himself does not work and is often at home in bed sick. The mother is concerned with the father’s lack of finances, general demeanour and apparent ill health. She believes him to have a continuing drug addiction.
The earlier hearing proceeded before Connolly FM following its transfer from the Magistrates Court of Victoria on 6 June 2011. Connolly FM made orders appointing an Independent Children’s Lawyer for the children and for the preparation of a family report. The matter was otherwise adjourned with further interim parenting orders being made by consent on 14 September 2011. At that time, the father had filed no material in the proceedings and those orders were directed to a number of matters, including the parties filing material and the parties undertaking supervised urine drug screen testing randomly and within 48 hours of the Independent Children’s Lawyer making an appropriate request for the testing to occur. Further, it was ordered that each of the mother and father do all such acts and things to facilitate a psychiatric assessment and preparation of a psychiatric report, as arranged by the Independent Children’s Lawyer. In addition, both parties were to attend a post-separation parenting program and provide a certificate of completion to the solicitor for the other and to the Independent Children’s Lawyer.
A family report was prepared by Ms S dated 3 November 2011. Mr Seagar did not attend upon the report writer and so no observation of him with the children nor evaluation by the report writer could be made. Ms S’s report was by way of an updated report to the family report prepared earlier by her and dated 1 September 2011. Ms S made numerous attempts to contact Mr Seagar to have him attend for the interviews for the updated report but was not successful.
Ms S noted at the time of the report that the children continued to reside with their mother and following the earlier interim consent orders spent time with their father on alternate weekends from Friday to Sunday, with the father’s partner Ms M being in substantial attendance. She noted the mother continued to reside with a Mr C and that their baby daughter, A born (omitted) 2011, resided in the household with them and X and Y.
Ms S observed the children, X and Y, to continue to have a warm and close relationship with their mother. She noted that X again expressed a very clear view about wanting to live in a shared care arrangement alternating between each of her parents, but Ms S noted the mother’s account that conflict continued to exist between herself and the father. In particular, she noted the mother’s claim that the father was threatening and intimidating toward her and Mr C at Court on 14 September 2011, and that such behaviour was witnessed by the solicitors and others at the Court. Ms S observed that Y appeared to continue to be developing at an age-appropriate level.
Ms S concluded that she was unable to make any further assessments or recommendations until she had read the psychiatric assessments and reports of each of the parties and until the father had participated in the updated report. The father did not participate in a psychiatric assessment and he presented to the Court at this hearing as a litigant in person seeking an adjournment. He had however failed to comply with earlier orders of the Court to attend upon the family report writer, to undertake a psychiatric assessment and to file any documents in the proceedings. He had no reasonable excuse, there was prejudice to the other party and the Independent Children’s Lawyer and his application for an adjournment which was opposed by the mother and the Independent Children’s Lawyer was refused. Significant funds have been expended in relation to these proceedings and there was no real basis for the adjournment application. Accordingly, the matter proceeded on an undefended basis and orders were made by consent of the mother and the Independent Children’s Lawyer with the Court determining on the evidence before it, and looking to those matters required to be taken into account by it as set out in s.60CC(2) and (3) of the Family Law Act 1975 (Cth), that such orders promote the best interests of the children. In particular, the Court cannot assess the nature of the father’s relationship with the children nor his capacity to provide for their needs until such time as he is psychiatrically assessed, observed by an expert with the children and places evidence of a supportive nature before the Court. The orders provide for the current arrangement to continue, which is that the children live primarily with their mother and spend time and communicate with their father each alternate weekend from 5pm Friday until 5pm Sunday. Any further and other times are by agreement between the parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 6 September 2012