Baker & Parker-Lesley - [2008] FamCA 1002

FAMILY COURT OF AUSTRALIA

BAKER & PARKER-LESLEY

[2008] FamCA 1002

FAMILY LAW – CHILDREN – parental responsibility – best interests of the child – whether the presumption of equal shared parental responsibility is rebutted pursuant to s 61DA(4) – not in the best interests of the child for the parties to have equal shared parental responsibility – mother to have sole parental responsibility

FAMILY LAW – CHILDREN – orders made for mother to provide father with information regarding child’s health and schooling

Family Law Act 1975 (Cth) ss 60B, 60CC & 61DA

APPLICANT:

Mr Baker

RESPONDENT:

Ms Parker-Lesley

INDEPENDENT CHILDREN’S LAWYER:

Ashley Kent

FILE NUMBER:

ADF

1683

1996

DATE DELIVERED:

11 November 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr J.M. Bowler

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission

Orders

The mother have the sole parental responsibility for the child ….
The mother give the father twenty-eight [28] days notice in writing of any intention to change the school of the child.
The mother advise the father of any serious illness or accident suffered by the child and authorise any medical practitioner treating the child in respect to same to discuss the child’s health with the father AND IT IS DIRECTED that the father ensure that the mother has available at all times his telephone landline and mobile telephone number.
The mother ensure the father receives the child’s school reports within fourteen [14] days of same being released AND IT IS DIRECTED that the father continue to supply the mother with his current address to which the school reports can be forwarded.
The appointment of the Independent Children’s Lawyer is discharged within fourteen [14] days from today.
That the father file and serve a financial statement and annexed to that financial statement a true copy of his PAYG statements for the last financial year within 21 days from today.
That the mother provide the husband and the Court with an indication of what sort of enforcement order she is seeking within 14 days of receipt of the husband's financial statement.
I adjourn for further consideration the enforcement of the $825 costs order to 30 January 2009 at 10 am, before me.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1683 of 1996

MR BAKER

Applicant

And

MS PARKER-LESLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Today I have heard the evidence and submissions of the parties in relation to the orders that the parties seek concerning the child of the mother and the father, born in November 1995; who is therefore close to being aged 13.
Proceedings have been on foot in this Court, at various times, since February 1996. There also have been proceedings in the Federal Magistrates Court concerning the child. There are a large number of documents on the Family Court file, 143 documents, some of them are very large.
On 7 October the matter came on before me and consent orders were made, with the father appearing in person, the mother appearing in person and Mr Bowler appearing as counsel for the Independent Children’s Lawyer. Those consent orders provided that the issue of parental responsibility was adjourned for hearing before me at 10 am.
The parties were ordered to file and serve any affidavit upon which they intend to rely at the adjourned hearing, within 14 days, such affidavit to be limited to the issue of sole or joint parental responsibility.
The orders also provided that the consent orders would come into effect after the determination of the parental responsibility question. Those orders provided that with the exception of orders as to child support and costs all other orders were to be discharged, that the child live with the mother and that the father be at liberty to communicate with the child in the terms set out in paragraphs 7 and 8 of that order. Provision was also made for the parties and the child to engage in mediation.
The specific order in relation to the father spending time with the child is paragraph 10:
That the child spend such time with the father as may be agreed between the child and the father, and the mother use her best endeavours to facilitate the same.
As indicated in that order, the matter was specifically adjourned to this morning for the issue of parental responsibility to be considered. The mother seeks an order that she have sole parental responsibility. The father seeks an order that he have joint shared parental responsibility.
When the matter came on before me this morning, the mother had filed a large affidavit on 21 October 2008, a document which, with very close typing, is contained in just over 10 pages and 124 paragraphs, to which are annexed a large number of documents, including transcript of school reports and the parties' questionnaires filled in at the commencement of the less adversarial trial system before me.
The father objected to the mother's affidavit on the basis that he had not been served until 22 October and also on the basis that it contained material in a form to which he objected.
I gave the mother leave to rely upon the affidavit, notwithstanding that she did not serve the father within the time provided, on the basis that she arranged for service of the father the following day; that is, she was one day late in complying with the order.
I have also made critical comments, in open Court, about the content of the affidavit and the difficulty in ascertaining from the affidavit those matters that would necessarily assist the Court in determining the matters which relate to the best interests of the child, in particular, whether orders should be made for the mother to have sole parental responsibility or an order that the parties have shared parental responsibility.
Taking the matter at its highest, the affidavit at times expresses opinion or contains matters which could be described as submissions or argument, rather than relying on setting out facts which the Court could take into account.
The father did not file any affidavit following the order of 7 October 2008. I permitted the father to give oral evidence in response to the mother's affidavit and other oral evidence.
At the hearing before me the mother was cross‑examined by the father and the Independent Children’s Lawyer. The father also gave oral evidence and was cross-examined by the mother and the Independent Children’s Lawyer. I then heard final submissions.
It is necessary to refer to the provisions of the Family Law Act that are relevant in relation to this matter. In particular, the provisions of Part VII of the Family Law Act are the major directions to the Court concerning children's matters. When making a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC provides criteria which the Court is required to consider when determining what is in the child's best interests.
The objects of the Part, and the principles underlying it, are set out in section 60B. In particular, it is relevant to consider that the objects of the part are to ensure that the best interests of the child 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.
Section 60B(2) also refers to principles underlying the objects, except when it is or would be contrary to a child's best interests.

Section 60B(2)
(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 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).

One of those provisions, however, is that parents should agree about the future parenting of their children and that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
Specifically, the provisions in relation to parental responsibility are set out in Part VII division 2, and in particular section 61DA(1) provides that:
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (2) provides that:
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:
(a)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
(b)family violence.
Section 61DA(2) is not established in this case. However section 61DA(4), provides that:
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Because of the specific reference in section 61DA(4) to the best interests of the child, the provisions of section 60CC must be carefully considered in this matter, particularly bearing in mind that there is a presumption of equal shared parental responsibility.
The evidence before me clearly indicates that the parties have from time to time, over a period of many years, been engaged, in this Court and the Federal Magistrates Court, in litigation concerning the child.
When considering the evidence before me, I am relying primarily on the evidence of the father given in his oral evidence before me today. In particular, his reference to the method that he suggests be the form of communication between them when it becomes necessary to discuss issues that would relate to the shared parental responsibility for the child. I place more evidence upon the oral evidence of the father than on the evidence of the mother in the affidavit she has provided to the Court, because of the issues that need to be determined.
I accept, however, that the mother has a belief, indeed a strong belief, that it is not in the child’s best interests for the litigation between herself and the father concerning the child to continue and that it would be in the child’s best interests for there to be an end to litigation.
Counsel for the Independent Children’s Lawyer also relied upon the report of Ms D, which is before the Court and the evidence of the other expert, Dr B, whose report is also before the Court. Both the mother and the father also sought that the Court rely upon the experts’ reports.
When deciding what is in the best interests of the child, as I indicated, it is necessary to take into account the matters set out in section 60CC. The primary considerations as set out at section 60CC(2) 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.
In this case section 60CC(2)(a) is the most significant provision. I am also required to consider the additional considerations set out in subsection (3). Subdivision (a) relates to the views expressed by the child and any factors which the Court thinks are relevant to the weight it should give to the child's views. The child's views have been set out in the reports.
I take the father's case to be that the child's views have been formed because of inappropriate influence by the mother and that I should not place significant weight on those views. However, I take into account the child’s age and the content of the reports of Ms D in particular.
The nature of the relationship of the child with each of the child's parents. In this case it is significant that for a considerable period of time, at least since the beginning of this year, the father's relationship with the child has broken down. The mother continues to have a strong relationship with the child. The father, however, questions whether that relationship is, in the long term, one that is beneficial.
In relation to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, I note the difficulties that have been encountered in that aspect for some considerable period of time. I also note the terms of the consent order which provides for a mediation to take place to address the child's relationship with the father, being mediation which is directed to the resumption of the child spending time with the father, with such mediation to be for such period as may be determined by the mediator. That is one of the orders which is to come into force, following upon the determination of the issue of parental responsibility.
The mother has also consented to an order that the child spend such time with the father as may be agreed between the child and the father, and the mother is to use her best endeavours to facilitate the same.
One of the other criteria is the practical difficulty and expense of the child spending time with and communicating with a parent. This is not relevant to the determination of the question of long-term parental responsibility.
In relation to the other matters contained in section 60CC(3), one of some considerable significance is 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. That is a significant factor as far as the child is concerned and is one factor which I take into account.
In relation to the father's evidence concerning communicating with the mother, he said that he was not prepared to have private conversations with her, either in person or on the telephone. I interpreted his evidence to say that he would not agree to receiving communications from her concerning the child, via email, because in the past she had sent the emails by replying to his previous emails, which he said caused confusion.
When asked how he would agree to the mother communicating with him about the child’s welfare, he said that that would be in writing, and that she could write to him. However when being cross-examined, immediately after agreeing that she could communicate with him in writing, he said that that was in fact very difficult because the mother could not spell and could not make a coherent sentence. During cross-examination by the Independent Children’s Lawyer's counsel, he repeated his criticism of the wife's ability to write and confirmed that he would not accept any communication in any other form.
This has highlighted the extremely difficult relationship between the parties. The father said that he believes the wife to be a liar and that he could not trust her to have a conversation with him, even in relation to issues concerning the child’s welfare.
The father gave evidence which indicated he did not approve of the school to which the mother has sent the child. He criticised the school by referring to the religious background of the school. (This is the school in which the mother enrolled the child and where the child has been attending this year, it being clear that the father did not join in the enrolment of the child or consent to the child attending that school).
The father said in evidence that he did not tell the child that the school was full of paedophiles but simply showed him an article in the Advertiser or the Australian which referred to the church founder as a convicted paedophile.
There is evidence from the father that he did not readily respond to communication from the mother when she was sending letters to him, in particular, about the child’s schooling.
The father also gave evidence that he regrets agreeing to the child using the surname of Parker and would now prefer that it be changed.
In oral evidence the father referred to the mother as a “huge liar” and said that she lies “like Goebbels did”, or words to that effect.
Taking into account the provisions of the Act, it is clear that the parties in this case are unable to agree about many matters concerning the child’s welfare.
Taking into account primarily the evidence of the father, I accept the submissions of the Independent Children’s Lawyer that the ongoing conflict between the parties has not been in the best interests of the child. I also accept the submissions of the Independent Children’s Lawyer that the evidence indicates that the parties do not have an ability to communicate in a normal manner about anything. Certainly the Court does not have any expectation that there will be any civil or polite communication readily entered into between these parties concerning issues about the child’s welfare.
The difficulties that would cause are difficulties which are not merely difficulties for the mother and father but will compromise the child’s welfare. The loss of any civil relationship between the parties is an indicator that it would not be in the child’s best interests for there to be an order for shared parental responsibility. The evidence clearly establishes the basis upon which, in accordance with the provisions of section 61DA(4), the Court is satisfied that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for their child.
After I stood the matter down, it was indicated that consent had been reached in relation to certain matters. The father, however, then indicated that he wanted further orders to be made, in similar terms to orders which had been in existence some years ago, concerning the obligations of the mother to provide certain information to the father.
I understood the mother did not agree to all of the extra orders that the father sought. By the time the Independent Children’s Lawyer's counsel was released, there was no clear consent to any of the orders. The orders that were proposed to be made by consent by the Independent Children’s Lawyer and the mother, were that the mother was to give the father 28 days' notice in writing of any intention to change the school of the child.
In view of my proposed orders that the mother have sole parental responsibility, it is an appropriate order to make to ensure that the father is aware of the school which the child attends. I therefore propose to make that order but will not express it to be by consent.

The other proposed order was that the mother advise the father, forthwith, of any serious illness or accident suffered by the child and authorise any medical practitioner treating the child in respect to the same to discuss the child's health with the father.
Again that is an appropriate order to be made, so that the father can be informed of any serious illness or accident suffered by the child. However, that order will need to be conditional upon the father providing to the mother his current telephone number at all times. I will make the order on the basis that I will also direct the father to ensure that the mother has available at all times his telephone landline and mobile telephone numbers.
The third order was that the mother ensure that the father receives this child's school reports within 14 days of the same being released. Again that is an order which is an appropriate order to be made by the Court, to ensure that the father receives that information concerning the child’s progress. Again, however, it should be on the basis that the father continued to supply the mother with his current address to which the school reports can be forwarded.
The final order in relation to the children's issues is that the mother have sole parental responsibility for the child.
I understand that that deals with all of the matters, other than the question of enforcement of the costs orders, one of which I have adjourned to myself to a date in January.
I am correctly reminded by the Court officer that I was asked by Mr Bowler to also include in the final orders an order discharging the appointment of the Independent Children’s Lawyer. I do that on the basis that the Independent Children’s Lawyer's appointment is discharged 14 days from today.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 24 November 2008