Wooley and Wooley

[2018] FamCA 756

FAMILY COURT OF AUSTRALIA

WOOLEY & WOOLEY [2018] FamCA 756

FAMILY LAW – CHILDREN – Parenting – final orders – where father does not attend but tells Independent Children’s Lawyer that he is not willing to proceed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wooley

RESPONDENT: Ms Wooley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8016 of 2011

DATE DELIVERED: 11 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 September 2018

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Ms Morkos

SOLICITOR FOR THE RESPONDENT: Heinz & Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Eidelson

Orders

1. That all prior parental orders be discharged.

2. The child B born … 2007 live with the mother.

3. The mother have the sole parental responsibility for the said child.

4. The father communicate with the said child as follows:

   (a)By telephone on each Thursday at 6.00pm, with the father to initiate the call and the mother to ensure the child is available to take the call, is afforded privacy and will speak to the father as requested;

   (b)By sending the child a present and card on her birthday, Easter and at Christmas;

   (c)       As otherwise agreed in writing

5. The mother shall keep the father informed of all major decisions she makes concerning the said child’s health, education and religion, via the My-Mob app.

6. Each of the father and the mother shall keep each other informed of their current residential address, contact telephone number.

7. The father be at liberty to receive from the child’s school any printed information, including photos at his cost, which the said school prepares for release to parents concerning the child’s social and academic progress.

8. Dismiss all extant proceedings.

9. That pursuant to s.65DA(2) and s.62B, 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.

IT IS FURTHER ORDERED:

1. That the Independent Children’s Lawyer is discharged from the proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wooley & Wooley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8016 of 2011

Mr Wooley

Applicant

And

Ms Wooley

Respondent

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This is a parenting dispute that began in 2011 culminating in final orders in the Federal Circuit Court in 2012.  Not long later, further proceedings began, including contravention proceedings.  All of that occurred at C Town and ultimately when the matter became controversial in November 2016, the proceedings were transferred to this court.  I held a directions hearing in December 2017, at which time the wife was represented by her solicitor and the father represented himself.  I had the benefit of an Independent Children’s Lawyer.  I indicated that the case had to be listed for trial because it seemed to be going nowhere and, accordingly, it was listed in March 2018. 

2. In March, counsel for the Independent Children’s Lawyer indicated that it might be a good idea to put the matter off for some months to enable the parties to work out some sort of solution.  As at 11 September, not much has advanced.  Today, very helpfully, counsel for the Independent Children’s Lawyer spoke to the father who was not present at court.  The father told counsel that he had been advised – presumably by the court – that the hearing was not proceeding.  There is no record at all of any email or telephone communication with the father in the week preceding this hearing.  As is well known, the first port of call in relation to the court’s files is with the case coordinator.  There is nothing to indicate that the court gave such a piece of information.  In addition to that, counsel for the Independent Children’s Lawyer observes that his instructor wrote to the father indicating that the matter was proceeding. 

3. Whatever actually happened, it matters little, because the father now says that he is not going to proceed with his application.  What he said to counsel for the Independent Children’s Lawyer is that he has had a “gutful”.  He says that he has not had face-to-face time with 11 year old B and that telephone contact, which was ordered by the court, has largely not worked.  He wants there to be ongoing telephone communication on one occasion per week and that face-to-face contact under supervision at a contact centre is not satisfactory from the father’s point of view. 

4. The mother’s position, as indicated by her counsel and supported by the Independent Children’s Lawyer, is that if there is to be any form of relationship it should be by telephone and I have now been given minutes to that effect.  There was an allegation against the father of sexual impropriety said to have occurred when the child was about four years of age.  She made the complaint to some school friends when she was about nine.  Police have investigated the matter and have decided not to prosecute, presumably on the basis that the evidence does not support a conviction. 

5. Counsel for the Independent Children’s Lawyer has told me that the father sees no future in persisting with any other form of relationship than that which has now been put before me.  Counsel for the mother says that these orders will work.  The substance of the order is that on one occasion each week at 6.00 pm the father will initiate a call to the mother.  The mother is to ensure that the child is available to take the call and given the obvious privacy and respect that a child should have.  If that does not work then it will be clear that orders of the court are a waste of time. 

6. I commend everybody for endeavouring to resolve the problem in the way they have and with some hesitation I shall make the orders in the form of the minute which the court will engross.  I will make a further order that all outstanding proceedings are otherwise dismissed.  I shall discharge the Independent Children’s Lawyer from the proceedings any further.  I will have the reasons published and placed on the court file. 

7. In addition to recording the background of these proceedings, it is important to note that the minute of orders has been sent electronically to the father who in turn, contacted counsel for the Independent Children’s Lawyer and indicated that the court should make the orders in those terms.  Based on that assurance, the orders should be made in final terms.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 September 2018.

Associate: 

Date:  24 September 2018