Ari and Erani

[2007] FamCA 1359

FAMILY COURT OF AUSTRALIA

ARI & ERANI [2007] FamCA 1359

FAMILY LAW – CHILDREN – Final parenting orders in unopposed proceedings

Family Law Act 1975 (Cth)
Family Law Amendment Shared Parental Responsibility Act 2006 (Cth)

APPLICANT: Ms Ari

RESPONDENT: Mr Erani

INDEPENDENT CHILDREN’S LAWYER: Ms Wunderlich

FILE NUMBER: MLF 4982 of 2002

DATE DELIVERED: 31 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 31 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bourke

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

THE RESPONDENT: No Appearance

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J.J. Cantwell

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Agricola Wunderlich & Associates

Orders

1. That there be orders in terms of the Minutes of Orders dated 31 October 2007 (“the Minute A”), noting that such orders are made by consent of the applicant mother and the independent children’s lawyer and not opposed by the father, such Minute be placed upon the Court file and marked “Exhibit A”. 

2. That there be orders in terms of the Minutes of Orders dated 31 October 2007 (“the Minute B”), noting that such orders sought by the applicant mother and not opposed by the independent children’s lawyer, such Minute be placed upon the Court file and marked “Exhibit B”.

3. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties, noting that the father’s address for service is …, R, New South Wales ….

IT IS DIRECTED:

1. That the solicitors for the Applicant Mother do engross Minute A and Minute B and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 48 hours.

2. That upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.

IT IS FURTHER ORDERED BY CONSENT (EXHIBIT A)

1. That all previous orders be discharged.

2. The mother have sole parental responsibility for the child … born … July 1995 (“the child”).

3. The child to live with the mother.

4. The father spend time and communicate with the child as follows:

   (i)one week of each of the school holidays in Melbourne (unless otherwise agreed) and the father shall give the mother two weeks written notice beforehand.

   (ii)By telephone, subject to the child’s wishes, once per week.  All calls to be initiated by the child using a phone card provided to the child by the father or by reverse charge to the father.

   (iii)Such further and other times as agreed from time to time between the parties.

5. That the father’s time with the child be conditional upon him providing to the mother a clear supervised drug screen at the time he provides a notice to the mother pursuant to paragraph (i) above and a further clear drug screen upon his time with the child commencing for each “spend time” period.

6. All drug screens provided to the mother pursuant to paragraph 5 shall be collected no more than seven days prior to their provision to the mother.

7. The father be restrained from:

   (i)consuming all illicit drugs during his time with the child;

   (ii)allowing the child to come into contact with any known persons to the husband who consume drugs.

8. That a sealed copy of this Order be served upon the husband by the wife’s solicitors at his last known residential address at R in the State of New South Wales.

9. That the Independent Children’s Lawyer’s appointment be discharged.

10. That all extant applications be dismissed.

11. Pursuant to s 65DA(2) and S.62B, the particulars of the obligations these orders crate and the particulars of the consequences that my follow if a person contravenes these orders and details of who can assist the 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.

EXHIBIT B

IT IS ORDERED that paragraphs 6 and 7 of the Order dated 10 January 2003 be discharged and the child … born … July 1995 be removed from the Airport Watch List ad the mother be permitted to collect the child’s passport from the Melbourne Registry of the Family Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4982 of 2002

MS ARI  

Applicant

And

MR ERANI  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter has been transferred to me in the judicial duty list.  Today there was a pre-trial conference convened by Registrar Kaur at 11am for the purpose of setting down for final hearing the competing applications of the parents in relation to their son born in  July 1995. At the pre-trial conference Ms Bourke, solicitor, appeared on behalf of the mother who has attended court today as well. 

2. Ms Cantwell appeared on behalf of the independent children's lawyer.  Pursuant to an order made on 30 June 2003, Simone Wunderlich of the Agricola Wunderlich & Associates was appointed as the independent children’s lawyer for the child born in July 1995 within the meaning of Division 10 of Part VII of the Act.  As such, her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1]  She is not a legal representative retained by the child and she is not bound by any instructions from the child.[2]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]

   [1] s 68LA(2) Family Law Act 1975 (Cth).

   [2] s 68LA(4) Family Law Act 1975 (Cth).

   [3] s 68LA(5)(d) Family Law Act 1975 (Cth).

   [4] s 68LA(5)(e) Family Law Act 1975 (Cth).

3. There was no appearance at the pre-trial conference by or on behalf of the father and there is no appearance by or on his behalf at my court where he has been called at approximately 12:30pm and there was no response. 

4. I note that on 1 August 2007, the father filed a Notice of Discontinuance (form 10) in which he gives notice that he wishes to discontinue his response to initiating application filed 6 January 2003.  Having perused the two volumes of the court file, I am satisfied that that response was the only document which has been filed by or on behalf of the father in which he seeks orders in relation to the child.  Therefore that represents all of the proceedings as far as the father is concerned.

5. There is also a Notice of Ceasing to Act filed on 17 October 2007.  That was completed by Paula Leslie, solicitor, of Pearsons Schetzer and Associates, and it provides notice to the father that:

   The next time this case is listed before the court is 31 October 2007 at 11 am for a pre-trial conference. 

6. The Notice provides the father's last-known residential address as …, R, New South Wales, ….

7. I am satisfied on the basis of the notice of ceasing to act that the father has notice of today's hearing, and having discontinued the only application which he had before the court, it is appropriate that I proceed with the remaining application, being that of the mother.  I do so on a basis which is unopposed by the father.  Largely, the independent children's lawyer consents to and supports the orders sought by the mother.

8. The proceedings were initiated by the mother by filing an application on 12 August 2002 in which she sought various orders, including that the child be placed on the watch list, parenting orders and for the father to submit monthly supervised urine screens as a precondition to spending time with the child.  That was the application in respect of which the father filed a response that he has now discontinued. 

9. More recently, being on 24 June 2005, the mother filed an amended application for final orders.  In it, she sought that she have sole responsibility for long-term decisions concerning the care, welfare and development of the child and that the father's contact to the child be "as this Honourable Court deems appropriate".  She also sought other orders, including that the father spend time with the child one week in each school holidays, a restraint against the father consuming drugs whilst the child is in his care, the provision of supervised urine screens and the like. 

10. Since the parties have initiated these proceedings and the mother has filed her amended application, the Family Law Act 1975 has been significantly amended by the Family Law Amendment Shared Parental Responsibility Act 2006, the provisions of which came into operation on 1 July 2006.  Certain procedural elements of the amended legislation do not apply to this case as it was commenced before 1 July 2006.

11. As part of the court's preparation of this matter for trial, a family report was ordered to be prepared and assessments for that were undertaken by Ms C, family consultant, on 20 August 2007.  At that time, Ms C interviewed the mother with the assistance of an interpreter and interviewed the child. The father did not present for any interviews, he had by that stage filed his notice of discontinuance. 

12. In the family report, the child is described by the family consultant in the following terms:-

    [10]. [The child] (sic) presented [as] a pleasant boy, who was reluctant to express his feelings because he was aware that his father will receive a copy of this report. However, as he became more confident he seemed to forget his reluctance, and became more open and relaxed. He described himself as an average grade 6 student, who is good at maths, and soccer, which he plays both at school and out of school, rugby and basketball. He has lots of friends, makes friends easily, and is confident within himself.

    [11]. He informed the Family Consultant that he last saw his father in April 2005, and that his father rings him about once a month. “When he rings he asks about me, and he used to as me to go up to Sydney, and I’d say it’s up to Mum, and he’d say I know she won’t let you. He doesn’t ask mush now … He also told me that when I’m 16 I can visit him, and that Mum had said no, I can’t. Mum hasn’t said that to me”.

    [12]. When asked what he wanted to do he said that he would do “whatever Mum wants. If Mum said yes I’d go … I’m not scared of him, not that much. He doesn’t hit me. Sometimes he yells at me or uses an angry voice”.

    [13]. [The child] (sic) then queried if his father would be reading what he said, and when told that he would, he continued, “he hit my Mum. He takes drugs, and we moved away and he’d return and hit her. I saw him hit her and he knows that. He took her to the hospital from the hitting, after the police came, and they came to the hospital too and I stayed in their child care place”.

    [14]. He then added that his mother does not mind him seeing his father, but wants him to be safe, and “in Melbourne only”. “Last time when he saw me he was supposed to spend 1-2 weeks here, but he only stayed 4-5 days because he had no money. We all stayed in the same room at the motel”. He also stated that he enjoyed his times with his father, going to the “pool place and eating pizzas, and I’d be happy to see him in Melbourne”.

    [15]. According to [the child] (sic), he has spent time in Sydney with his father twice, when his mother would accompany him there to see her family. “I’d stay with Dad’s sister, whom Mum likes, and see Dad then. There’s no more Sydney for Mum and me because she didn’t take me to see Dad specifically. She kept telling the Court she took me to Sydney to see my Dad, but it was to see his sister”.

    [16]. [The child] (sic) was able to remember “a lot of hitting, and screaming and yelling if Mum got home late. When she left he’d come to the house in Sydney and attack her. He hit her on the face, she had a bruised face, but he never hit me as far as I can remember”.

    [17]. Finally, he asked the Family Consultant to let his father know that the phone he gave him is not working any more, and the brand new phone “wouldn’t work properly”. “He also told me he was going to buy me a little motor bike, and it needs a helmet, (I’ve got the pads), and he said he’d give it to me at the end of this month, when he comes to see me. I hope to get it then, and to see him. I like my Dad”.

13. The family consultant made the following evaluation in the report:-

    [18]. It would appear that [the father] has been violent towards [the mother], and that [the child] (sic) has witnessed some family violence in the past. Regardless, [the child] (sic) has fond memories of his father, does not appear fearful of him, and is seeking to develop his relationship with his father. [The mother] has not fostered [the child] (sic) spending time with his father in Sydney, preferring that they spend time together in Melbourne, and it would appear that [the child] (sic) has a better relationship with his father than [the mother] was able to admit. [The child] (sic) knows that his mother does not really want him to see his father, and that she will not support him in doing so in New South Wales.

    [19]. In the Family Consultant’s opinion there are two options in this matter. The first is that [the child]’s (sic) father comes to Melbourne during the school holidays to spend time with him, and the second is that his mother accompanies him to Sydney, so that he can spend time with his father and his extended paternal family.

    [20]. The reason for the Court to continue holding [the child]’s (sic) passport is unknown, although this was initially requested by [the mother]. Now she has requested that the Family Consultant mention that she would like the passport returned to her following the Final Hearing.

14. Having regard to the above matters, the family consultant made the following recommendations:-

    [21]. It is recommended that [the child] (sic) lives with his mother, and spends time with his father in Melbourne, during the school holiday periods, should [the father] wish to continue doing this. Perhaps he could make such a commitment at least once a year, as it is important for [the child] (sic) to know that his father has not abandoned him, in spite of the financial and emotional difficulties he may have in doing this.

    [22]. It is also recommended that even though [the father] has discontinued this matter, the Family Consultant recommends that [the mother] accompany [the child] (sic) to Sydney at least yearly, or permits him to travel there alone, so he can spend time with his father, and get to know his extended family.

    [23]. It is also recommended that [the father] makes every effort to come to Melbourne in the near future, as [the child] (sic) is expecting him, and that he lets [the child] (sic) know by telephone if he is unable to do this.

    [24]. Finally, it is recommended that the passport issue is addressed by the Court.

15. Ms C is an appropriately qualified family consultant attached to this registry.  Her report reads as a well reasoned analysis.  In my view, and absent any challenge to her evaluation of the matter, I am prepared to and do accord her recommendations weight. 

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.

2. Subject to the best interests of the child being the paramount consideration,

   
   

   s 60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.

4. The objects may be regarded as the core values of the legislation.  Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. 

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the 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).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

Determining the child’s best interests

1. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

   
   

   s 60CC of the Act.

2. The primary considerations to which I am required to have regard are set out in section 60CC(2) and are described as follows:-

   (a) the benefit to the child of having meaningful relationship with both his 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.

3. In this case it is apparent that the mother supports a relationship between the father and the child.  To the extent that the relationship envisaged by the orders may not constitute a "meaningful" relationship, I am mindful of the fact that the father is no longer a participant in these proceedings. 

4. Family law proceedings remain proceedings determined according to private law.  That means that when one party chooses not to participate in proceedings, the court is left with what evidence is on the file, what evidence is adduced by the remaining participant and, in this case, the helpful observations of a family consultant. 

5. I cannot foist on the father a meaningful relationship with the child.  If he sought such a relationship, I assume that he would be at court today.  

6. The other primary consideration is the need to protect the child from physical or psychological harm. The orders that are sought by the mother make the provision of urine testing results a precondition to time between the father and the child taking place.  I am satisfied that this has been a constant issue in the proceedings. I note that in paragraph 15 of the mother's affidavit sworn 6 August 2002, she alleged that the father used drugs in her presence.  In the father's affidavit sworn on 1 July 2005, he acknowledges previous use by him of illicit drugs but says that he is no longer using such drugs.  That appears at paragraph 4 of the affidavit. 

1. Given that the father does not participate in the proceedings to point out any reasons why the mother should not now obtain the orders that she seeks today, of which he had notice, my consideration of the additional considerations under s 60CC(3) is significantly curtailed. The father does not seek that any other orders be made.  I take into account the observations and the evaluation of the family consultant. I take into account the primary and additional considerations although the latter in a curtailed manner. 

2. I am satisfied that it is in the child's best interests for the proceedings to be finalised and for his mother and himself to be relieved of the pressure of ongoing litigation.  The orders that she seeks provide a way for the father to see the child regularly, subject to certain safeguards which I am satisfied are proper.  All of the parenting orders in relation to the time the father spends with the child and the mother's parental responsibility for the child, the safeguards and the order specifying the father's address for service are supported by and consented to by the independent children's lawyer. 

3. The mother seeks a further order which is neither consented to nor opposed by the independent children's lawyer; it is that the child's name be removed from the watch list and the mother be permitted to collect the child's passport from this court. 

4. I am informed that by order made on 10 January 2003, the child's passport was to be lodged with the registry and he was placed on the watch list.  The father does not have notice of the orders sought by the mother in this regard.  However, the orders of which the father does have notice include an order that the mother have sole parental responsibility for the child. 

5. That being the case, the mother has all of the duties, powers and responsibilities and authority which, by law, parents have in relation to children.  That is set out in s 61B of the Act.  Those responsibilities and duties include determination by the mother of issues about:-

   (a)The child's education, both current and future;

   (b)The child's religious and cultural upbringing;

   (c)The child's health;

   (d)The child’s name;

   (e)changes to the child's living arrangements that make it significantly more difficult for him to spend time with a parent.

6. The order in favour of the mother having sole parental responsibility includes the responsibility for her to oversee the child going in and out of Australia.  Whilst the father does not have specific notice that the mother was going to seek a discharge of the interim orders, he should be aware that when the proceedings are finalised, interim orders are discharged.  I am satisfied that the extra orders sought by the mother are consistent with those of which the father already has notice.  I will therefore make all of the orders sought by the mother, noting which ones are consented to by the independent children's lawyer. 

7. I am satisfied that the orders are in the best interests of the child. 

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  21 November 2007