White and Bagley

[2016] FCCA 749

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITE & BAGLEY [2016] FCCA 749

Catchwords:
FAMILY LAW – Undefended parenting proceeding.

Legislation:

Family Law Act 1975, s.11F

Applicant: MS WHITE

Respondent: MR BAGLEY

File Number: DGC 4469 of 2007

Judgment of: Judge Harland

Hearing date: 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Dandenong

Delivered on: 24 March 2016

REPRESENTATION

Counsel for the Applicant: Ms Sudholz

Solicitors for the Applicant: Robert Halliday & Associates

The Respondent: In person

ORDERS

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the child X born (omitted) 2001 (“the child”).

3. The child live with the mother.

4. The child spend time with the father in accordance with his wishes.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4469 of 2007

MS WHITE

Applicant

And

MR BAGLEY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter came before me last week in the duty list. The current proceedings were started by the mother on 10 July 2015. Previously, final consent orders had been made on 24 February 2009. The Department of Health and Human Service (“DHHS”) became involved with the family in 2013 and on 27 March 2014, placed X in the father’s care. The mother annexes a report from DHHS to her initiating application, which makes it clear that, certainly, in 2013 and 2014 the mother was suffering from anger issues and substance abuse, namely alcohol and that this had negatively impacted on her parenting capacity and that X had been subjected to physical violence by the mother.

3. That led to the removal of X from her care. The DHHS report also makes it clear that X, in the past, has been the subject of physical violence and subject to the effects of both parents’ substance abuse. DHHS have made quite detailed recommendations with respect to both parents, including drug screens, and recommended that the father have a mental health assessment. There was a period of a few months where the mother did not see X and that appears to be because X was not ready to see her and she was respectful of that.

4. She then had some months of supervised time.  The difficulties arose in moving from supervised time and one of the mother’s complaints was that the father was not willing to facilitate her relationship with X. When the matter came before the Court for the first time in the current proceedings on 14 December 2015 the parties were directed to attend a child inclusive 11F conference and they did so. The issues that were identified in that report were how much time X should spend with his mother and whether or not that time should be supervised.

5. The family consultant records in that report the material from DHHS and also referred to the treatment that the mother was receiving from her psychologist, who she had been engaged with for some 20 months.  She also referred to allegations the mother made about there being violence in the relationship before the parents separated.  It also set out the father’s concerns that the mother may harm X again and complained that the mother made excessive phone calls. X indicated that he wanted to spend Saturdays with his mother every second week.

6. He knew that his father wanted him to spend less time but was not concerned about his father knowing what his wishes were.  The parties then entered into interim consent orders, which provided for the mother to spend three hours a fortnight with X and also included various restraints on the mother, including restraining her from attending his school and from telephoning him.  The mother then filed an application in a case on 17 November 2015.  In that application she was seeking to increase her time with X. She said in her affidavit is support that that X had told her he wanted to spend more time with her and she was concerned that the father would not support that unless there were orders in place. The matter came before me last week for the listing of that application in a case. The father has not filed any material in these proceedings. The father did not attend court last week.   X did attend, having turned up unexpectedly on his mother’s doorstep that morning.  Fortunately, the family consultant, Ms C, who had previously seen the family, was able to see X at short notice as it was clear that there had been an incident between himself and his father and he wanted to inform the Court about that.

7. Ms C gave oral evidence and also provided a written s.11F memorandum after court. She records that X had arrived at his mother’s home that morning because X told her he had had enough of his dad’s behaviour and said that his father had been drinking more heavily since the last time the orders had been made, that his father had been increasingly aggressive with him and had “kicked him in the butt”. He said that his father was upset with him because he did not like some of X’s friends. X said he wanted to live with his mother, that he knew that his mother had been doing courses to address her alcoholism and that he knew this because she had shown him her certificates.

8. X also told the family consultant that he would know if his mother was drinking again because she gets wobbly and slurs her speech.  He said that if that occurred he would call his friends.  One of his friends had picked him up from his father’s place and driven him to his mother’s place.  He told the family consultant that if he was made to return to his father’s home he would run away and live with his friends. X was keen to also speak to me to make his views known and given his age and the circumstances in which he attended Court, I acceded to that request and since provided a transcript, with X’s consent, to the mother and father.

9. Given X’s age, it is important that X’s views are given significant weight.  He will be 15 years old next month.  Ms C observed in the second report that  X appeared to be resourceful and to have cared for himself and given the history with both parents at times having substance abuse and anger issues, it is not surprising.  There is a real risk and I am satisfied that X was genuine when he confirmed with me that if an order is made to live with his father, he will run away and live with his friends.

10. He was quite upset and disappointed with his father and he said that his father had said he knew that there was a court date on last week but he had more important things to do.  I will mark as exhibit A the affidavit of service and affidavit of attempted service that was handed up today.  The documents were left in the father’s post box, which had some other mail in it.  There is some doubt about whether or not he is actually on notice of the proceedings today but, given the events of the last week, I am satisfied that it is important for  X’s welfare that the matter is finalised today.

11. The mother gave brief oral evidence this morning with respect to a conversation she had had with Ms A, who is in charge of the welfare division of X’s school.  Ms A informed the mother that the father had telephoned the school and inquired about whether or not  X had been attending school since Tuesday and that the father also sought a refund of $900 for a school camp that X is due to go on to (omitted) in April.  In light of the recent events, the mother is seeking an order for her to have sole parental responsibility, for X to live with her and for X to spend time with the father in accordance with his wishes. I will make these orders.

12. For reasons only known to the father, he has decided to abdicate parental responsibility for X and if he wishes to repair his relationship with X he is going to have to work at it.  It is quite clear that X feels disappointed and angry with his father and feels rejected, given the father’s conduct and attitude.  That is perfectly understandable.

13. After I finalised this matter, Ms Sudholz quite properly brought to the Court’s attention that the father had turned up late and the matter was re-mentioned at 10:36am. The father was somewhat agitated and disrespectful to the Court. He refused to acknowledge that he had failed to attend Court last week, that he has failed to file any material in this matter and that he turned up over an hour late.  It was only by luck that the mother and her counsel were still in the court precincts and prepared to have the matter re-mentioned as they were quite within their rights to have left given that the father turned up well after the 9:30am listing.  It is quite clear that the father has no respect for the court proceedings. He started to wave his mobile phone around and turned to speak to the mother about what seemed to be a phone bill.

14. The father has chosen not to file any material in this matter and has acted in a way that seems to totally disregard both the court process and X’s welfare.  If he wanted to contest what had occurred or put his version of events forward it was within his power to do so.  He is well and truly on notice of what had occurred the week before and what X’s views were both from the 11F report and from the transcript of the proceedings.  It is clear from his attendance today and the fact that he confirms that he had various documents, that he was aware both of the court date today and what had occurred last week, including the evidence that was before the court.

15. I am advised that the mother has arranged for some assistance for X through Anglicare given that X is very angry and having difficulty coping and that seems to me entirely appropriate. I remain satisfied that this is a matter that needs to be finalised today and otherwise confirm the orders that I made previously.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  8 April 2016