ACKERMAN & SOLWAY

[2015] FamCA 1096

FAMILY COURT OF AUSTRALIA

ACKERMAN & SOLWAY	[2015] FamCA 1096
FAMILY LAW – CHILDREN – Application by father to spend time with and communicate with his children – Order that children live with the mother – Order that mother have sole parental responsibility for the children – Order that father be prevented from approaching the children without consent of mother or order of a court exercising jurisdiction under the Family Law Act 1975 (Cth) – Order that father be permitted to communicate with the children in writing on the condition that mother be able to read the material and determines it is appropriate
Family Law Act 1975 (Cth) s 60CC
APPLICANT:		Mr Ackerman

RESPONDENT: Ms Solway

INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

FILE NUMBER: HBC 883 of 2013

DATE DELIVERED: 24 November 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 24 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms F

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission of Tasmania

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Di Giovanni

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

Orders

1. Ms Solway (‘the mother’) have sole parental responsibility for the children B born … 2003 and C born … 2005 (‘the children’).

2. The children live with the mother.

3. Mr Ackerman (‘the father’) be restrained from approaching the children or the home in which they live or the schools which they attend without the advance written consent of the mother or an order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).

4. The father be permitted to communicate with the children by forwarding to them letters, cards and presents provided that:

   (a)the mother shall be entitled to open and read any letters and determine whether the children ought to be informed of such letters;

   (b)the father, at no time, deliver the letters, cards or presents personally to the mother’s house or to the children.

5. 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.

6. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of this order.

7. A copy of the single expert report of Dr D be released and made available to:-

   (a)the Principal and school psychologist at any school in which the children attend provided such document is kept in a private and confidential place and not further published without the leave of the Court;

   (b)the Tasmanian Child Protection Authorities;

   (c)any general practitioner or psychological or other relevant health care professional in respect of the children.

IT IS NOTED

1. This order will be available to the above groups.

IT IS REQUESTED

1. The Independent Children’s Lawyer and a family consultant (preferably Ms E) meet with the children within two (2) weeks of the making of these orders to explain these orders to the children, having regard to Dr D’s report.

IT IS DIRECTED

1. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits remain on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 883 of 2013

Mr Ackerman

Applicant

And

Ms Solway

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Ackerman, (‘the father’) is a disability pensioner who was born in 1970, and he is aged 45.  He has commenced proceedings in this Court seeking parenting orders with regard to his sons, B, aged 12, and C who is about to celebrate his 11th birthday.  The respondent to these proceedings is Ms Solway, (‘the mother’).  The proceedings were commenced by the father in the Federal Circuit Court in December 2013, and the parties have been engaged in litigation in respect of these boys for about two years.  An Independent Children's Lawyer has been appointed, and the father has sometimes engaged/and sometimes not engaged in these proceedings. 

2. In recent times, he has filed two notices of discontinuance, one in March 2015; then he filed, in May 2015, an amended application; and then on 21 July 2015, he filed the second notice of discontinuance.  These proceedings were transferred to the Family Court from the Federal Circuit Court on 14 April 2015, given the complex circumstances of the family, and the complex needs of these children.  The father was called today and did not appear, and it is clear from his filing of the notice of discontinuance and from Exhibit 1 that he no longer wishes to pursue these proceedings.  Exhibit 1 is a letter forwarded by him to the Independent Children's Lawyer on 21 July 2015.

3. The material before me is that of the mother, filed 6 February 2014, and her affidavit of 23 November 2015.  I also have a Child Dispute Conference Memorandum to Court of Ms E (‘the Family Consultant’) of 13 February 2014, and the 38 page single expert report of Dr D (‘the Single Expert’), dated 23 January 2015.  I have read the father's affidavits and I have read the mother's affidavit.  There is a history of violence in this matter, and on 8 October 2013, a Police Family Violence Order was issued, and it expired in October 2014.  The evidence now before me is that the mother is seeking the protection of another order, and there is an interim in order in place, and that it is going back to the Magistrates Court for the possibility of a final order, perhaps for another 12 months.

4. The father asserts of the mother that she was violent to him, and has a drinking problem and has, at times, been suicidal.  In her frank response, the mother acknowledged that she had an alcohol problem, but that it is now being managed.  This, to some degree, is supported by the evidence of the Family Consultant, although she puts significant cautions around that, which are understandable, in that it would be unlikely that the mother would present to see the Single Expert intoxicated as the impact of that would have been quite profound.  The mother also acknowledged that she had, from time to time, suicidal ideation, given the violence in which she found herself.

5. The father initially sought orders for:-

   (a)equal shared parental responsibility of the children;

   (b)alternative weekends plus a day during the week; and

   (c)school holidays and special arrangements. 

6. When the mother filed her response on 6 February 2014, she sought orders for:-

   (a)sole parental responsibility of the children;

   (b)that the children live with her; and

   (c)the father be restrained from approaching the children. 

7. The father filed an amended application on 1 May last, to which I have already alluded.  In that, the father sought an order that the mother have sole parental responsibility, that the children live with the mother, and that the children spend time with him from 10.00 am Saturday to 4.00 pm Sunday, schools holidays and other special occasions. 

8. In addition he sought orders that neither party denigrate the other in the presence and hearing of the children; orders in relation to threatening, assaulting, harassing; and mutual orders regarding the mother and father not using illegal drugs.

9. The mother describes a traumatic history of violence throughout the relationship which, as I said, is denied by the father who is not here.  The mother's evidence is, in some ways, supported by the evidence of the Single Expert.  There seems to be an argument as to the date of separation, whether it occurred in January 2013 or June/July 2013, not much swings on that.  After separation there was a long period, either six or 11 months, when the children did not see the father.  However, the mother complains that since that time, the father has been an adverse effect on the children and on her, the last instance of which was fairly recent when there was a death threat, and in circumstances where the father had clearly followed the mother.  Relief is being sought by the police for the protection of the mother in the State Magistrates Court.

10. The children, particularly the elder child, have been significantly and adversely affected by the adverse mentoring given by his father.  That was reflected in the school and reflected in the broader community.  It is also reflected in terms of his, in the past, at least, engagement with the mother and engagement with his brother.  Each of the children has significant challenges which are identified by the Single Expert.

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. It is problematic in that these children clearly love their father and want a relationship with him.  The problem, it seems, from the evidence before me, is that the father has little respect or regard for the mother, and does whatever he can to undermine the children's relationship with her and, in doing so, undermines the children in terms of their engagement with society.  It was interesting to read in the Single Expert's report her concerns, in particular with regard to B and his desire to be just like his father in fighting and engaging in antisocial activities.  But they clearly, desperately want to see their father and have a relationship with him.

2. The father no longer wishes to engage with the Court processes or with the legal profession acting for the mother. In terms of section 60CC(2) of the Act, given that the children have the benefit of a meaningful relationship with both of their parents as it stands, that relationship is likely to continue, bearing in mind the age and maturity of the children.

3. It is the next section, section 60CC(2)(e) of the Act, that causes me concern. I am not concerned that the father will physically abuse the children. I am concerned that the father is likely, given an opportunity, to physically intimidate or abuse the mother. I am also satisfied on the evidence that the father will continue to intimidate, threaten and terrify the mother.

4. In doing so, this has had a profound impact on the children, as indicated in their school work, their school attendance and, in particular, B's behaviour at the school which involved him being suspended from school for a period of time. 

5. In terms of the additional considerations, the children have each expressed a wish to spend time with their father, and significant time.  I am cognisant of that in making these orders.  They have a good relationship with their mother, who is their primary carer, and does the best she can to manage these two, and I suspect at times,  rambunctious children.  They are just starting to enter their teenage years, and I suspect that that will be a heavy task for the mother to manage over the next 10 to 15 years.

1. They have a good relationship with their father.  They like him.  They admire him.  Unfortunately, his ability to contain his antisocial behaviour is somewhat limited.  There were, and perhaps still are, issues with regard to B parroting his father's behaviour and his father's views of women.  The father spends time with the children when it suits him and clearly passes on his views as to the role of the male and the role of females with abhorrent processes. 

2. The father has not provided any significant financial aid to the mother, although there is some evidence that his parents have done so.

3. It is not intended for me to change the children's long-term primary circumstances, although the house will change as the house in which they live is being sold.  They will still continue to live primarily with the mother.  The father has been seeing the children through a Children’s Contact Centre, but finds this is not acceptable for him and, in fairness, the children are finding it not entirely to their satisfaction.  There are practical difficulties with regard to the children spending time with the father.  They need to be outdoors so that they can run, jump, and chew up all that energy that little boys get about that age, and also interact naturally with their father.  However, given their father's behaviour and the risks that he poses to the boys as set out in the affidavits and the expert's report, that is not feasible.

4. The mother is capable of looking after the children.  The father, it is unclear, bearing in mind the approach he has adopted.  The mother and the two boys are the only ones living in their house.  That is, as I understand, the evidence of Ms F, the mother’s solicitor. 

5. As to subparagraphs (g) and (h), they are not relevant.  As to sub paragraph (i) "The attitude to the child and the responsibilities of parenthood", the mother has, on occasions, slipped.  She was affected by alcohol on a number of occasions, but tells the Court that she is now managing that problem, and is seeking community assistance to address it, and protect herself and the children.

6. As I said earlier, there is a history of family violence, and I have referred to the Police Family Violence Orders and the proceedings taken in the State Magistrates Court.  This is a case where there are serious allegations of violence, and the presumption in relation to s 61B cannot and should not apply.  In any event, given the comments of the Single Expert, this is not a matter where the mother could be expected to enter into any meaningful dialogue with the father regarding these children.  Given their different approach to parenting, and the anger and hostility and controlling behaviour of the father, it would lead to further conflict and further undoing of the relationship.

7. Given all of those factors under section 60CC of the Act and with all the factors, I am satisfied that there ought to be an order that the mother have sole parental responsibility of the children. In terms of residence: even in the father's application, he did not seek to disturb the residence of the children with the mother, and I intend to make that order as a final order. In terms of time and communication, the Single Expert seemed to think if the children could see the father in some supervised way, but not at a contact centre, that may be good for them. That may well be the case.

8. However, there are no viable options available where the children are safe and where the mother is protected.  It is also of concern that the children's health and behaviour has markedly improved since the father discontinued.  I do not at this stage, in these circumstances of violence, intend to make an order that the children spend time with the father.  That is open for the mother to enter into agreements with the father if they wish, but that will be a matter for her for at least in the foreseeable future. 

9. There are a number of other things I was asked to address.  I will be making provision for the father to send the children birthday presents, Christmas presents, cards and letters.  It is up to the mother to read the letters and ensure that they are appropriate for the children.  This will include the paternal grandparents who seem to have an affection for the children but, on the evidence, tread in favour of their son from time to time.  Given the nature of the orders, I am going to accede to the request of the Independent Children's Lawyer that the children are informed of the orders by the Independent Children's Lawyer and with a Family Consultant.

10. I will be making orders allowing copies of the Single Expert report to be released to CHYPP which stands for the Children and Young Persons Program.  And in terms of the order to the principal and school psychologist at the children's school, provided those documents are kept and marked "private" and not available for broader publication, I will, of course, be making an order that a copy of the orders be made available to the principal of any school which the children may, from time to time, attend.  I will also be directing of copy of these reasons, the orders, and the Single Expert report to be made available to the Department of Health and Human Services and any other health care professionals for the child or children treating any psychological or psychiatric condition.

11. I have been asked to put in place an injunction.  Given the history of violence, that is entirely appropriate, although the injunction shall not operate to prevent the father from sending letters and cards, to which I referred earlier, provided it is made clear to the father that does not give him permission to attend the mother’s premises to deliver those letters, cards and presents.  He will have to do it through someone else other than himself.  I simply reiterate the violence. 

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 November 2015.

Associate:     

Date:              24 November 2015