WILSON & HARRIS

[2013] FamCA 23

FAMILY COURT OF AUSTRALIA

WILSON & HARRIS	[2013] FamCA 23
FAMILY LAW - CHILDREN - Rule 11.02(2) Family Law Rules 2004 (Cth) - Where Father failed to comply with the procedural rules of the Court – Where the Father has filed virtually nothing in support of his Application in a Case – Leave granted to proceed on an undefended basis – Rosa and Rosa [2009] FamCAFC 81 – Brief reasons must be given for the Orders made – s 60CC – Where the children’s welfare will be advanced solely by the children being in the care of the Mother – Children to live with Mother – Mother to have sole parental responsibility – Father not to have contact with children.
APPLICANT:		Mr Wilson

RESPONDENT: Ms Harris

INDEPENDENT CHILDREN’S LAWYER: Ms S O’Reilly, Solicitor

FILE NUMBER: BRC 8087 of 2008

DATE DELIVERED: 29 January 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 29 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	No appearance by the Applicant Father
COUNSEL FOR THE RESPONDENT:	The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kirkman-Scroope of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MTM Lawyers

Orders

ON AN UNDEFENDED BASIS IT IS ORDERED THAT:

1. All previous Orders be discharged.

1. The children, S born on … February 2000, J born on … September 2001 and H born on … April 2004 shall live with the Mother.

2. The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the children.

1. There be no Order for the children to spend time or communicate with the Father.

2. All outstanding applications be dismissed.

3. The Independent Children’s Lawyer be discharged.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8087 of 2008

Mr Wilson

Applicant

And

Ms Harris

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Wilson, hereinafter referred to as the applicant, for parenting orders in relation to three children of his relationship with the respondent, Ms Harris, the children being the child S, born in February 2000, the child J born in September 2001, and the child H, born in April 2004.  The father instituted, as I have said, an application for parenting.  But since the application, he has done virtually nothing in support of his application and, in fact, has failed to prepare any documents of any note which he has filed before this Court.  He has not complied with orders of the Court, I believe an order was made by Registrar Stoneham on 4 September 2012, as amended on 12 September 2012, which indicates that:

   3.Should a party fail to comply with procedural orders of the Court, the other party is at liberty to seek orders by default at an undefended hearing pursuant to R11.02(2) of the Family Law Rules 2004.

2. No application has been made, but I assume that because the parties are seeking an order, particularly the independent children’s lawyer, solely in favour of the mother, I would have no hesitation in granting leave for them to proceed on an undefended basis.  As a result of that I only have the material from the independent children’s lawyer and the mother.  I do, of course, have the assistance of Ms Wilson Senior, who is the paternal grandmother, who has had some contact with her son, and she has contact with the children, as appears from the material.  And conceded by the mother, who is here today, she has a relationship with the kiddies and they seem to get on quite well with her.

3. The mother does not object to the paternal grandmother having some contact with the kiddies at a time convenient not only to the people but to the kiddies as well.  I think that is a very good idea.  However, I have requested that if, in fact, the father starts to make any nuisance of himself whilst the children are with the grandmother, that she will immediately inform the mother, and she said she will do that.

   RECORDED   :   NOT TRANSCRIBED.

4. Unfortunately – I say unfortunately because it just means that matters have got to be put before the parties - it is necessary as a result of the requirements of the Act, insofar as Rosa and Rosa [2009] FamCAFC 81 is concerned, of the Full Court that I set out brief reasons in this case as to why I should order, first of all, the mother have sole parental responsibility, there being a presumption that it should be joint, secondly, that there has been no joint parenting, and, thirdly, why I make no order as to contact whatsoever. I am satisfied on the provisions of section 60CC that the children’s welfare will be advanced solely by their being in the possession of the mother. The father – notwithstanding he had the children for some nine or 10 months, to the exclusion of the mother, and she sought them and got them back – has had little or nothing to do with the children since about April 2012.

   RECORDED   :   NOT TRANSCRIBED

5. Since March 2012 he has shown no interest in the children whatsoever and I do not see any reason why the children should be pushed into the position of having to have contact with a person who does not appear to be interested in them whatsoever.  Consequently, any other matters under section 60CC which I have to find in favour of the mother having sole parental responsibility and sole parenting of the children is quite clearly in her favour.  So far as Rosa is concerned, I have mentioned that the father has no interest in these children on the material before me and the lack of material from him.  And consequently that is the reason why I am not ordering contact.  As a result of there being no contact, it is not necessary for me to decide whether the contact is reasonably practicable in all the circumstances.

6. I have seen a copy of a draft order put before me by the independent children’s lawyer which is at a variance with the draft put forward by the mother on 3 September 2012.  Basically it is insofar as some form of limited contact by the father.  Since he has done nothing and the mother has now had an opportunity of seeing the draft put forward by the independent children’s lawyer, and she is now in agreement with that, I have no hesitation in ordering in accordance with that and would order in accordance with draft order 1, 2, 3, 4, 5 and 6. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 29 January 2013.

Associate: 

Date:  29 January 2013