BAILEY & BAILEY
[2012] FMCAfam 904
•20 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAILEY & BAILEY | [2012] FMCAfam 904 |
| FAMILY LAW – Children – parenting orders – where respondent failed to attend Court – best interests of the child – parental responsibility – sole parental responsibility – wishes of the child – views expressed by the child – weight to be given to the child’s views. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 68L Federal Magistrates Court Rules 2001, rr.13.03C, 16.05 |
| Bailey & Bailey [2012] FMCAfam 79 Goode v Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346 |
| Applicant: | MR BAILEY |
| Respondent: | MS BAILEY |
| File Number: | SYC 7646 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 August 2012 |
| Date of Last Submission: | 20 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hanna |
| Solicitors for the Applicant: | J.A. Brown & Co |
| Solicitors for the Respondent: | No Solicitor on the record |
| Solicitors for the Independent Children’s Lawyer: | Tiyce & Partners Lawyers |
ORDERS
All earlier parenting Orders are discharged.
The Applicant father is to have sole parental responsibility for the child [X] born [in] 1997.
The child [X] is to live with the father.
The Respondent mother is granted leave to apply to vary or set aside any of the above Orders within twenty-eight (28) days of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Bailey & Bailey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7646 of 2011
| MR BAILEY |
Applicant
And
| MS BAILEY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father of a girl called [X] for orders that she should live with him and he should have sole parental responsibility for her. The mother has not attended Court for the hearing. She has been given ample notice of the time and date of the hearing but she has not contacted the Court to advise of any reason why she is unable to attend today. In the circumstances, the appropriate course is to proceed with the hearing generally, as provided by Rule 13.03C.
Background
The parties have three children, two of whom are now adults. The only child who is under the age of eighteen years is [X], who was born [in] 1997 and is now fifteen years old.
On 23 February 2000 in the Family Court, Rowlands J ordered that [X] and her elder brother and sister should reside with their mother. The mother was permitted to relocate to Brisbane with the children.
The child [Y] left the mother’s home on or about 5 May 2007. The father deposed in his affidavit of 8 December 2011 that [Y] told him that the mother, having forced him out of home on several occasions, attempted to stab him with a kitchen knife, after which incident he obtained separate accommodation.[1]
[1] Affidavit of Mr Bailey 8.12.2011 at paragraph [10]
The father deposed that the parties’ elder daughter, [Z], was forced to leave the mother’s home on or about 6 August 2010. [Z] lives elsewhere in Brisbane.
On 6 September 2011 the mother sent the father an email, a printout of which is annexed to the father’s affidavit. The email says, relevantly:
If you like and with my blessings, I am happy for you and prefer if you take [X] for the rest of her schooling. I am unemployed and under arrest so if you want [X], I think that would be fine for you and think she will be safe with you.
It would appear the QPS has been very heavy handed with me and I am facing charges, that you would smile at.
For [X]’s safety and happiness, I would like you and [first name omitted][2] to love our daughter and care for her, as she for reasons would love to feel loved by you.
I have reviewed the past events, and think that you would be the better parent, as you have the resources to care for her and the time. I am finding financial hardship and living in accommodation I am no longer able to afford.[3]
[2] The father’s partner
[3] Affidavit of Mr Bailey 8.12.2011 Annexure “F”
The father deposed that [X] told him that on 6 September 2011 the mother threw out a quantity of her personal belongings and told her to leave. The child gathered her belongings and telephoned a school friend, whose father drove over and took her back to his family home. She stayed there until 16 September.
The child travelled to a school [event omitted] at Rockhampton with another friend and her friend’s mother, and stayed in Rockhampton for the next three days. The father travelled to Brisbane and took [X] back to his home in Sydney, where she has lived ever since.
The father made an urgent Application to this Court for parenting Orders, which was returnable on 9 January 2012. The mother, who by that time had taken up residence in Sydney, attended Court and was represented on a duty basis by a solicitor from Legal Aid NSW.
The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did the next day. The Family Consultant, in her Memorandum to the Court, noted that there was no agreement between the parties. The mother claimed that the father was contravening the earlier Orders by retaining the child in his care. The father maintained that the mother had requested him to care for the child on a full time basis and agreed to her moving to live with him in Sydney.
On 11 January 2012, after an interim hearing, the Court made Orders until further order:
a)suspending Orders 1 to 17 of the Orders of 28 February 2000;
b)providing that the child would live with the father;
c)directing the parties and the child to attend a child-inclusive Child Dispute Conference on 25 January 2012; and
d)appointing an Independent Children’s Lawyer for the child.[4]
[4] Bailey & Bailey [2012] FMCAfam 79
The parties attended the child-inclusive Child Dispute Conference on 25 January 2012. The Family Consultant, Ms B, spoke briefly to each parent before interviewing the child [X]. The Family Consultant Memorandum set out the child’s views and opinions in some detail, making it quite clear that the child “expressed a clear, unambivalent preference to live with her father in Sydney”. She also expressed a preference that there should be no orders stipulating when and how she spends time with her mother.
[X] stated to the Family Consultant that she did not want to have any contact with her mother at that time.
The mother filed a Response and a supporting affidavit on 24 February 2012. In her Response, she sought Orders that:
a)the child should live with her father;
b)the parties should have equal shared parental responsibility for the child; and
c)the child should spend time with the mother on alternate weekends during the school term, for half of the school holidays and on special days such as the child’s birthday, the mother’s birthday and Mother’s Day.
The mother’s solicitor filed a Notice of Withdrawal as Lawyer on
20 April 2012. The mother has not attended Court since that date.
On 23 April 2012 the Application was listed for final hearing.
Evidence and Submissions
The father relied on his earlier affidavit evidence and gave short oral evidence, confirming the matters to which he had previously deposed. He said that neither he nor his daughter had had any contact from the mother. He has encouraged [X] to make contact with her mother but she does not wish to do so.
The child is doing well at school and is “quite a sporty girl”. It took her a couple of months to settle down once she started school in Sydney but she now has a strong group of friends. She still maintains contact with her school friends from Queensland.
[X] has a good relationship with her brother and sister.
The Independent Children’s Lawyer, Mr Tiyce, told the Court that [X] had expressed concerns about her mother visiting her school. She was “vehemently opposed” to spending time with her mother at this stage.
The mother did not attend Court and was not represented by a lawyer.
She had filed an affidavit sworn on 23 February 2012 in which she set out her views. She stated that it concerned her that the child did not want to have a relationship with her. She also set out some details about the child in paragraphs [63] and [64] of her affidavit which were of a personal nature and of no apparent relevance. They are not reproduced here, as they would be likely to cause the child embarrassment and distress if she were to read them. As the matters appear to be irrelevant, they have not been taken into account.
The Relevant Law
In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the objects and principles of Part VII in s.60B of the Act and the matters set out in subsections (2) and (3) of s.60CC (see Goode v Goode[5] at 436 [48]).
[5] (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
The matters in subsections 60CC(2) and (3) are the primary and additional considerations respectively.
The primary considerations are set out in paragraphs (a) and (b) of subsection 60CC(2). They are:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Objects of Part VII are to ensure that the best interests of children are met by the means set out in s.60B(1):
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 (see paragraph 60CC(2)(a));
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (see in this regard paragraph 60CC(2)(b));
c)ensuring that children receive adequate and proper parenting; and
d)ensuring that parents fulfil their duties and responsibilities.
There are additional considerations set out in subsection 60CC(3) of the Act, including a consideration of 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 (see paragraph 60CC(3)(a)).
The Court may inform itself of views expressed by a child by having regard to anything contained in a report given to the Court under subsection 62G(2) or by making an order under section 68L for the child’s interests to be separately represented by a lawyer (see s.60CD).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the child’s best interests.
All of those matters have been considered.
Conclusions
It is clear from the evidence of the father and the Memoranda from the Family Consultant that this child does not wish to maintain a relationship with her mother at this stage of her life. There is evidence that the mother required her to leave home and take up residence with her father, which she has done.
The submissions of counsel for the father are ad idem on the points that it is in the best interests of this child to remain living with her father and that no parenting orders should be made in favour of the mother. It is open to the child and the mother to, make contact should either one of them choose to do so, but it is clear that [X] is opposed to doing so at this stage. Her views are clear and she is of an age and state of maturity that her views should be given considerable weight. Both the Family Consultant and Mr Tiyce, the Independent Children’s Lawyer, speak highly of the child’s maturity and intelligence.
In circumstances where there is no communication between the mother on the one hand or either the father or the child on the other, there is no indication that equal shared parental responsibility for the child would be viable. The child’s strong opposition to spending time with her mother or having any communication with her at all leads to the finding that it is not in the child’s best interests for her parents to have equal shared parental responsibility for her. An order will be made giving the father sole parental responsibility for the child.
It is regrettable that the mother has apparently chosen not to participate further in these proceedings, but I am satisfied that she has been given adequate opportunity to do so. Both the Family Consultant and the Independence Children’s Lawyer have made it clear that it would be a source of relief to this child if the proceedings were finalised.
Counsel for the father has submitted that the Court should make final Orders, as it would be in the best interests of the child for this to be done. If the mother is in some way dissatisfied with the Orders made, she would have the right to appeal.
Whilst there is some weight to that submission, there may be some explanation not known to the Court as to why the mother did not participate in the final hearing or why she did not attend court on 28 May 2012, when the matter was last mentioned. In the interests of procedural fairness, the mother should be given an opportunity to apply under Rule 16.05 to vary or set aside the Orders that have made in her absence.
For that reason, the mother will be granted leave to apply to vary or set aside the Orders within 28 days of the date of this decision. Otherwise, the Orders are final orders and the Application will be removed from the list of cases awaiting finalisation.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 September 2012
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