Kelsey & Kelsey [2012] FamCA 9

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Orders

IT IS ORDERED THAT

The children T KELSEY born … May 1998 and S KELSEY born … January 2001 live with the mother.

The mother have sole parental responsibility for the children’s long term welfare and development.

The children spend time with and communicate with the father at all times as agreed between the mother and the father.

The mother keep the father appraised of her telephone contact details.

The order for the appointment of the Independent Children’s Lawyer be discharged.

IT IS FURTHER ORDERED 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.

NOTATION

It is noted that:

The father has not filed any material as was directed by Registrar Stoneham on 19 July 2011.

The Paternal Grandparents filed a Notice of Discontinuance on 13 July 2011 in relation to their Response filed 8 December 2010.

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

REASONS FOR JUDGMENT

These proceedings commenced life in the Federal Magistrates Court some considerable time ago. Ultimately, the proceedings came before this Court and, since doing so, a number of attempts have been made to engage the father in the processes of this Court. Similar attempts occurred prior to that in the Federal Magistrates Court.

Included among the attempts here was an attempt to have him participate in the preparation of a family report by Ms O from whom a report was ultimately filed on 18 July 2011. The father did not participate in that report process.

The report is otherwise comprehensive and outlines a number of significant issues pertaining to the children who are the subject of the application before the Court. Ms O identifies the issues considered by her relevant to the best interests of T and S at paragraph 13 of that report.

Ms O also refers to a history with the Department of Child Safety and refers to a number of concerns expressed by the children and the mother with respect to the father. It seems that, sadly, the father suffers from a mental illness.

As a final attempt to have the father participate in these proceedings, I made orders on 8 September 2011, having at that time noted that various directions had been made by a registrar of this Court designed to facilitate the father’s participation in these proceedings. Those directions included requirements of the father to file material and the like. None of those directions have been complied with by the father.

On 8 September 2011, I ordered that in the event that the father has filed no material or complied with the earlier orders of Registrar Stoneham then the matter be heard on an undefended basis. The independent children’s lawyer undertook to attempt service upon the father of the notification of these proceedings and the fact that they could take place on an undefended basis today.

Exhibit ICL1 in these proceedings is a letter from the independent children’s lawyer directed to the husband’s parents, which enclosed a copy of the order I have just referred to. That letter should be seen against the background of an earlier affidavit of attempted service by a process server, sworn 22 November 2010 and filed 26 November 2010.

That affidavit deposes to a conversation between the process server and the father’s new wife. In that conversation, the new wife spoke of the father’s mental illness and referred to him having “good days and bad” and at the time of attempted service he was “having a bad time.” In fact, the father’s new wife indicated to the process server that, “Presently, it’s a bad time and he has taken off. He does that when he knows it is getting bad.”

The process server requested an address from the father’s new wife, who said in response that she would “rather not” disclose an address. The current address of the father is not known to the mother or the independent children’s lawyer.

In the conversation to which I have just referred, the father’s new wife indicated that she would make contact with the father’s parents. The father’s parents had initially been parties to these proceedings but have subsequently filed a notice of discontinuance.

The father’s mother contacted the process server and indicated that she had just spoken with the father’s new wife, who had asked her to contact the process server. The father’s mother said, in that conversation:

I have just spoken with [the father’s new wife] and she asked me to call you to confirm that [the paternal grandfather] and I are more than willing to accept any court documents for [the father], especially any to do with the children, and we will undertake to pass all of them on and ensure [the father] and [the father’s new wife] get everything.

It is in those circumstances that the material, including, importantly, the order made by me on 8 September 2011, was forwarded to the father’s parents by the independent children’s lawyer under cover of the letter that is now exhibit ICL1.

I have then, in those circumstances, and in light of the lengthy history of these proceedings in both the Federal Magistrates Court and this Court, determined to hear and determine the mother’s application on an undefended basis.

The family report to which I have earlier referred suggests nothing that would indicate to the Court that orders proposed by both the mother and the independent children’s lawyer, that the children live with the mother and that she have sole parental responsibility for them, and that any communication or time with the father be as agreed between the parents, are anything other than in the children’s best interests.

I pause to observe that T was born in May 1998 and accordingly will soon be 14. S was born in January 2001 and has just turned 11. The family report refers to the wishes expressed by the children (which are consistent with the orders sought) and their current circumstances.

It seems to me in the children’s best interests that I make the orders proposed by the mother and the independent children’s lawyer on an undefended basis.

I note that the proposed order prepared by the independent children’s lawyer, and signed by the mother as being agreed to by her, include appropriate notations, and I propose to include those notations in the orders made by me.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 January 2012.

Associate:

Date: 20 January 2012