Baldwin and Aleksic

[2012] FamCA 675

FAMILY COURT OF AUSTRALIA

BALDWIN & ALEKSIC [2012] FamCA 675

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – order that child live with the mother – order that mother have sole parental responsibility for  the child – order that father spend supervised time with the child

FAMILY LAW – PRACTICE AND PROCEDURE – Leave given to father to apply for variation of orders in respect of the time he spends with the child on the condition that he file affidavit explaining his absence at the hearing of the matter – Appointment of Independent Children’s lawyer to continue for a period of six months

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

APPLICANT: Ms Baldwin

RESPONDENT: Mr Aleksic

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 483 of 2010

DATE DELIVERED: 9 July 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 9 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Grey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Susan Grey

Orders

1. All previous parenting orders in relation to the child N born
   May 2005 (“the child”) are discharged.

2. The mother have sole parental responsibilty for the child and will keep the father advised of the child’s welfare and day to day interests in the form of regular emails forwarded by the mother to an email address provided by the father and failing provision of such email address by the father, by letter forwarded to the father care of the paternal grandparents.

3. The mother is required to provide to the father two (2) months written notice of any intention that she may wish to relocate the child away from the Cairns area.

4. The child live with the mother.

5. The child spend supervised time with the father as follows:-

   (a)each Tuesday after school from 2.30 pm until 7.00 pm;

   (b)alternate weekends on a day or an overnight, supervised by the paternal grandparents;

   (c)such other times as are agreed in writing between the parties; and

   (d)such other supervisors as are agreed in writing between the parties, subject to

   the father not being affected by or using illegal or illicit drugs or alcohol whilst the child is his care and/or supervision and to that end the mother may request the father to provide blood tests or other sampling, not more than three (3) times a year, at times nominated by the mother.

6. The father is compliant with treatment and medication for his illness.

7. The father provides an authority to all of his medical providers, including mental health practitioners, an irrevocable authority to any such medical practitioner, to notify the mother, should they become aware, that he is non-compliant with his medication or not attending medical appointments requested by that medical practitioner AND IT IS NOTED such authority is to be provided to whichever medical practitioner above, including any changed medical practitioner.

8. The father attend at the child’s school for special occasions subject to:

   (a)the father giving the mother notice in writing, at least twenty four (24) hours before such attendance; and

   (b)the father attends the school in the company of one or other of his parents or some other agreed supervisor.

9. The father is restrained from attending the mother’s home or place or work and is restrained from contacting the mother by telephone.

10. 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.

11. This matter be removed from the list of cases requiring determination.

12. The appointment of the Independent Children’s Lawyer be extended for a period of six (6) months from the date of this order.

13. Leave be given for the father to apply within twenty eight (28) days in the event that he wishes orders with regard to the time he spends with the child are different from these orders, provided he files an affidavit explaining his absence from court today, 9 July 2012.

    IT IS CERTIFIED

14. 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 Baldwin & Aleksic  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 CAIRNS

FILE NUMBER: CSC 483 of 2010

Ms Baldwin

Applicant

And

Mr Aleksic

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are proceedings which were listed for hearing this week before me in relation to N (“the child”) who was born in May 2005.

2. When the matter was called this morning there was no appearance by the father. 

3. A family report had been released[1], in which the Family Consultant, Ms P, had recommended orders substantially in accordance with that suggested by the mother.

   [1] 12 February 2012.

4. These proceedings have been ongoing since August 2010, a period of almost two years, and need to be brought to an end.  And that was precisely what I was endeavouring to do on the last occasion.

5. I note that the father was called today, but did not appear.

6. I do note, however, that he filed an affidavit, and in the affidavit of 25 May he sets out, in short form, his difficulties with regard to his health and treatment.

7. The mother relies upon her affidavit filed 28 May 2012, a chronology of 20 August 2010, submissions prepared by her on 20 August 2010, and her affidavit of 19 August 2010.

8. The Independent Children’s Lawyer relies upon the report of Ms P and a psychiatric assessment by Dr M.

9. The mother seeks orders that the child live with her, that she has sole parental responsibility for the child and that the child spends time with the father, provided that it is supervised, primarily by his family.  But she is open, as I understand it, to the father’s present partner being a supervisor, once she meets this partner and satisfies herself that she is satisfactory and protective of the child.

10. It is not clear why the father is not here, but it is equally clear that these proceedings ought to be brought to a conclusion.

11. I intend to make some final orders, but give the father an opportunity to come back, in a very narrow aspect, should he decide to do so.

12. I will leave the appointment of the Independent Children’s Lawyer in place for six months, so if the matter does come back there’s no need to go through that whole process again, and direct that the matter come before me.

13. The background of the matter is that the mother is 38 years old, as is the father. 

14. They apparently commenced cohabitation in 1999, and there were some episodes of violence and psychotic behaviour, which the mother alluded to in her various affidavits.

15. The father used marijuana and the psychotic episodes continued over a period of time, including the father’s admission to hospital, including delusions.

16. The child of the relationship was born in May 2005, N, who has just celebrated his seventh birthday.

17. The parties married in October 2007.

18. There was a further psychotic episode in August 2008, and the parties separated in that month.

19. They entered into a parenting plan, but because of the father’s significant ill health, which is detailed, in terms of the symptoms, in the mother’s affidavit, the Family Report, and in terms of the diagnosis by Dr M, that was somewhat difficult.

20. In 2010 the father was showing particularly difficult delusional signs, and it is apparent that he may have been continuing his use of illegal substances.

21. The father is now the subject, as I understand it, of a compulsory treatment order. 

22. Interim orders were made in the Federal Magistrates Court on 20 August 2010 that the child live with the mother and have no contact with the father.

23. Further consent orders were made in the Federal Magistrates Court enabling the father to have time with the child, provided that the time was supervised.

24. Further orders were made in the Federal Magistrates Court on 17 October 2011 and the proceedings were transferred to the Family Court.

25. The matter came before me on 8 May 2012 and I directed that they be heard this week.

26. I also made other directions in relation to the filing of affidavits.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The provisions in the Family Law Act 1975 (Cth) (“the Family Law Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) and (2) of the Family Law Act, which provides:-

   (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. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Family Law Act.

3. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

4. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

5. I have had regard to the principles set out in ss 60B, 60CC, 61DA, 61D(2)A and the other relevant sections.

6. In terms of the evidence, I have gone through that in brief; however, I have had regard to it in detail.  In particular, the affidavits of the mother setting out her role in caring for this child, and I have no doubt that she is the principal carer and has been the principal carer of this child for the whole of his life.  I accept her evidence.

7. The father has a diagnosis of probable bipolar affective disorder, to which Dr M has provided significant detail.

8. Ms P saw the parties and noted that, at present, the father’s mental state is stable, but noted that in the past his use of marijuana and poor compliance has resulted in the deterioration of his mental health.

9. There is a benefit in this child having a meaningful relationship with both parents.  It is clear that the mother supports that relationship, provided that it is safe to do so.

10. The father’s mental illness is such that if untreated, or the child is unsupervised in his care, the child is at risk of harm or neglect by the father.  As such, for the foreseeable future, it is inevitable that the child’s time with the father will need to be supervised. 

11. The mother is facilitating that approach.  She has indicated to the Court that if she forms a good relationship, or a workable relationship with the father’s present partner, and she is satisfied that this partner is protective, she will consent to that partner being a supervisor and consent to the father’s time expanding, as it were, provided that that supervision is there.

12. The evidence of the views of the child is contained in paragraph 78 through to 83 of the Family Consultant’s Report.  They do not help me much.  They show evidence of a seven year old boy being a seven year old boy, saying that his mother sometimes doesn’t let him do things that she thinks he ought not do, and that his mother is sometimes stern but at the same time is loving and warm to him.

13. I have had regard to those views, but they are not a significant factor.  The child has a good relationship with the father, but his primary relationship is with the mother.  The mother is willing to facilitate the child having a relationship with the father provided it is safe to do so.  The father’s ability to parent is affected by the state of his health at any particular time.

14. The practical difficulty in relation to the father spending time with the child is ameliorated by those around him who are prepared to supervise the time.  The mother has shown a capacity to parent.  The father has limited capacity, bearing in mind his health difficulties.  The mother has adopted a sensible, child-focused approach to parenting.  There were issues of violence which are alluded to in the mother’s affidavits, which relate primarily to the father’s use of drugs and the mental health issues that run in parallel with that use.

15. I have had regard to the events that have occurred since separation.  The first matter I need to determine is that of parental responsibility.  The presumption does not apply, but in any event I would have considered equal shared parental responsibility, as that is the intent of the legislation.  In this case it could not work.  The mother has, to all intents and purposes, determined parental responsibility from the birth of the child, that has continued and it has worked well. 

16. It seems to me that to put in place an order for equal shared or several parental responsibility would impact adversely on the mother’s ability to care for this child. Having regard to all of the evidence and the factors under section 60CC it seems to me that sole parental responsibility is the appropriate step. Having regard to the other factors, I am satisfied that the mother should continue to be the primary carer of this child, and I will make an order to that effect.

17. In terms of the time the child spends with the father it ought to be supervised in accordance with the terms set out by the mother. 

    The father was not here today, but it’s possible he may have been sick, delayed, or had a car accident or something along those terms.  I intend to give the father the option to come back to argue, if need be, in relation to that narrow issue of the time he spends with the child and the degree of supervision, but in a very narrow aspect so that these proceedings are brought to an end and the mother can get on with the parenting of this child without the interference of the Court.

18. As I said earlier I intend to leave the Independent Children’s Lawyer’s position in place for a period of six months, so that if the matter does come back then there’s a lawyer here and the matter can be dealt with quickly and promptly.  I imagine if it came back I would be able to deal with in an hour or two on one of my circuits up here.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 July 2012.

Associate:     

Date:              9 July 2012