Bamford and Mandes (No.4)

[2018] FCCA 3929

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMFORD & MANDES (No.4) [2018] FCCA 3929

Catchwords:
FAMILY LAW – Parenting – where the mother failed to attend the final hearing – where the history of the matter suggests that the child will only be able to have a relationship with one of her parents because of the mother’s refusal either to facilitate the child spending time with the father or spend time with the child if the child is living with the father – child living with the father and safely placed – mother’s circumstances unknown – order for the child to live with the father and spend time with the mother as agreed between the parents.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Bamford & Mandes (No.3) [2018] FCCA 3927

Applicant: MR BAMFORD

Respondent: MS MANDES

File Number: NCC 1425 of 2012

Judgment of: Judge Terry

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Newcastle

Delivered on: 17 December 2018

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Mr Bithrey

Solicitors for the Respondent: Foat Roberts Lawyers

ORDERS

1. All previous parenting orders concerning the child [X] born …2011 (“the child”) are discharged.

2. The child shall live with the father.

3. The father shall have sole parental responsibility for the child.

4. The mother shall spend time with the child as agreed between the father and the mother in writing NOTING THAT it is the court’s hope that if the mother changes her mind about being willing to spend time with the child the father will not unreasonably prevent that from happening provided that the mother gives him a residential address at which she is residing and agrees to share with the father in the drop off and collection of the child.

5. The father is permitted to travel internationally with the child and apply for a passport for the child notwithstanding the consent of the mother has not been obtained.

6. The mother shall not bring the child into contact with the maternal grandfather Mr A or allow any other person to do so.

7. The mother and the father shall keep each other advised of their contact details including mobile telephone numbers, email addresses and residential addresses.

IT IS NOTED that publication of this judgment under the pseudonym Bamford & Mandes (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1425 of 2012

MR BAMFORD

Applicant

And

MS MANDES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These proceedings concern parenting arrangements for [X] who is seven.

3. Proceedings about [X] began in 2012 when she was a very small child. The first round of proceedings was in the Family Court and on 28 April 2014 Austin J made final orders following a seven day hearing in March and April for the child to live with the mother, for the mother to have sole parental responsibility and for the father to spend time with her on alternate weekends and during school holidays.

4. There had been problems with implementation of orders for the father to see the child prior to that final decision being handed down and they are referred to in Austin J’s judgment and there were ongoing problems with the spend time with orders after the final orders were made.

5. The father filed a number of contravention applications.

6. The first one was heard and determined by Judge Myers in September 2015 and the mother was found to have contravened the orders.

7. The father filed further contravention applications in November 2015, May 2016, October 2016 and March 2017 and in October 2016 he also filed an application seeking a change of residence.

8. On 14 March 2018 I made an order in the absence of the mother for the child to live with the father. I gave reasons for that decision at the time because it was an extreme action. Those reasons were not settled and published but I intend to arrange for that to be done rather than to go over again the events which led to that extreme outcome.[1]

   [1] Bamford & Mandes (No.3) FCCA 3927

9. Shortly after those orders were made, the child came into the father’s care via a recovery order and this led to the mother attending Court on 25 May 2018. She pressed for the child to be returned to her care but I was not prepared to do that immediately and orders were made by consent for the mother to spend time with the child each alternate weekend during school terms from 4.30 pm on Friday to 5.00pm on Sunday and for blocks of time during the school holidays. Orders were also made for telephone communication.

10. The order about changeover was made by consent and they provided for changeover to take place by means of the mother collecting the child from Suburb B Police Station at the beginning and the father returning the child to the mother at Town C Police Station at the end. At that time, and it had been the case for some considerable time, the father was living in Sydney and the mother was living on the Region 1.

11. A family report had been prepared in the matter in January 2018. The mother did not attend those report interviews and after making those orders I ordered the preparation of a second report.

12. The second report was prepared in June 2018 and the mother attended the interviews for that report.

13. Following the release of that report the matter was listed for trial commencing today. The mother is not at Court today and she has not complied with trial directions or filed a trial affidavit. She contacted the Independent Children's Lawyer by email on Friday and informed her that she was in Queensland and was willing to attend the hearing by telephone.

14. The Independent Children's Lawyer did not support her doing so and I was not prepared to make an order allowing her to do so. It would have been inappropriate and indeed futile, given the mother’s failure to file trial material. The matter has therefore proceeded on an undefended basis this morning.

15. The mother made it very clear soon after the consent orders were made in May 2018 that she was not happy about being required to travel to Suburb B to pick the child up. Even though the changeover was to take place at a police station, she protested about being required to be in the vicinity of the father, and she said that while she now had a more reliable car (pausing to add that the mother had frequently used as an excuse for not arranging for the child to see the father that she had car problems) it was too difficult to travel to Suburb B because she had a young baby from a new relationship with Mr D.

16. I was informed today, and I accept, that the mother has spent time with the child only twice since the orders were made in May 2018 and that her telephone communication with the child has not been consistent.

17. I have to make final orders which are in [X]’s best interests and to assist me in making some findings about some of the best interest’s matters, I will refer to the family reports which were prepared in January and June 2018.

18. On each of those occasions, [X] was observed by the family report writer to be a well-cared-for child who spoke well about both her parents.

19. In the January 2018 report the family report writer said as follows:

    At assessment [X] presented as a pleasant and outgoing child. She interacted well and appropriately with the Family Consultant. She was interested in her surroundings and had no difficulties in separating with the father during her individual assessment. She played happily with the Family Consultant and during these games showed good balance and co-ordination. She can write well for a child her age and has the rudiments of spelling and arithmetic which would be expected for a child having completed Kindergarten.

    She reported she feels safe and happy at home with her mother and Mr D.

    She reported she also likes staying at “Daddy’s” and likes her little brothers [V] and [W]. She also likes “Ms E”.[2]

    [2] Paragraphs 144, 147 and 148 of the Family Report dated 20 January 2018.

20. In the June 2018 report she said as follows:

    At assessment [X] presented as happy, interested and extroverted. She happily discussed her new school, new friends and her new bedroom at her father’s. She spoke of play she engages in with [V] and [W]. She spoke positively of “Ms E” (Ms E). At other times she spoke positively about Mr D.[3]

    [3] Paragraph 137 of the Updated Family Report dated 29 June 2018.

21. [X] related well to her father at the interviews. The family report writer said as follows:

    [January 2018]

    In observation between the father and [X] there was clear affection and trust.

    The father did not attempt to ‘control’ [X] beyond what would be expected in ‘normal parental guidance’. He listened to her opinions and followed her lead in activities. He did not attempt to overly correct the child when she made ‘mistakes’, for example when writing words, and was encouraging of her efforts.

    The impression was gained that the father and [X] enjoy each others company and a secure attachment was observed. This was evident and somewhat surprising considering the limited time they have spent together over the course of this matter.[4]

    [4] Paragraphs 152-154 of the Family Report dated 20 January 2018.

    [June 2018]

    No anxiety was observed in her relationship with her father. She appeared comfortable in his presence and was content to separate from him having sought his assurance that he would remain in the vicinity. [X] did not overly defer to her father. At times she good humouredly disagreed with some of his opinions, which he expressed over inconsequential matters.[5]

    [5] Paragraph 142 of the Updated Family Report dated 29 June 2018.

22. The mother did not attend the January interviews but [X] related well to her at the June interviews and the following appears in the second report:

    [X]’s emotional expression was different when she was in the company of her mother. She greeted her mother with hugs. She expressed that she missed her mother. Her mother responded with a hug “I missed you too”.

    [X] drew a number of pictures for her mother which she wanted to give her mother. They contained images of the mother, Mr D, [X] and [Ms F].

    …

    The mother made multiple references to missing [X] when she was with [X] “Everyone misses you. You’ve never been away from us for that long”. The child did not know how to respond and looked away. The mother eventually modulated her emotional expression and [X] became more responsive.[6]

    [6] Paragraphs 144, 145 and 148 of the Updated Family Report dated 29 June 2018.

23. The family report writer noted in the June 2018 report that [X] did not express a view about her living arrangements. She said as follows:

    [X] gave the impression of wanting to please all the adults. She is reactive to their emotional states and tries to address what she sees as their emotional needs. If not carried too far this is reflective of empathy and is healthy. If however [X] feels she is required to sooth her parents this would not be healthy.[7]

    [7] Paragraph 151 of the Updated Family Report dated 29 June 2018.

24. The evidence from the school the child currently attends suggests that the father is providing capably for [X]’s day-to-day needs. She is living with him, his partner and her two young brothers and she appears to relate well to them.

25. The mother’s capacity to care for [X] is unknown. There have been issues in the recent past with a drug charge and an assault charge which the mother explained away but I do not know what is behind her being in Queensland or what her current circumstances are.  

26. [X] has a young sibling in the mother’s household and she will be separated from that sibling if she lives with the father.

27. As I observed at the start of the hearing and as is apparent from both family reports, [X] is sadly only going to be able to have a relationship with one of her parents.

28. While she lived with the mother, she spent only irregular time with the father. On occasions months passed when the mother did not comply with the orders. Since she has been living with the father the mother has only made an effort to see her twice.  

29. It was the opinion of the family report writer that if the child lived with the mother she would not be supported in having a meaningful relationship with the father. The family report writer considered this issue at length and said as follows:

    [X] has lived most of her life with her mother. Observations conducted during the course of this assessment suggested that the mother appears more willing to place [X] in a position where she needs to choose between her parents. The mother feels justified in adopting this position.

    The mother’s own childhood experience may contribute to her approach. In the context of the present assessment the mother reported that she was separated from her mother at around age two years and did not reunite with her mother until around 14 years old. The mother opined that as a young person the separation had been difficult for her but “I’m a pretty hard person- as a child I needed to be. Things have happened that made me stronger”.

    The mother’s presentation suggested she forms somewhat polarised views of people. This may be a reflection of the struggles she encountered during her own development and may be a contributing factor to the very negative way she now conducts her relationship with the father.

    Alternatively it may be that the mother is reluctant to co-operate with the father because she believes that he is unable to co-operate. She described the father as unyielding and highly controlling. She has also made allegations of violence against him. She maintains he would stalk her if he knew of her whereabouts, based on her allegations that he has done so in the past.[8]

    [8] Paragraphs 164 – 167 of the Updated Family Report dated 29 June 2018.

30. The family report writer said that if the Court determined the father was willing to facilitate a relationship between [X] and her mother, it might be that living with the father offered the child the best opportunity of having a relationship with both parents.[9]

    [9] Family Report paragraph 176

31. I am satisfied that the father is willing for the child to spend time with the mother. He can have a fairly intense communication style. I had some issues with him in that regard when the proceedings were first before this Court, and he is a bit of a stickler for people obeying the rules, but there is nothing to suggest that he is trying to cut [X] out of the mother’s life. Living with the father may offer an opportunity for [X] to have a relationship with both her parents because the father will not stand in the way of that happening.

32. However the mother’s mindset is such that it is highly likely that if [X] lives with the mother, she will not have a relationship with the father because the mother just cannot tolerate the idea of sharing the child with someone else.

33. Therefore the only appropriate order is that [X] live with the father. She is being well cared for at the moment. The mother has been unwilling to be engaged in these proceedings on numerous occasions during the life of the proceedings in this Court. She has not attended the final hearing so I can make no findings about her circumstances and it would not be appropriate even remotely to consider making an order that [X] live with the mother.

34. Counsel for the Independent Children's Lawyer referred me to Austin J’s opinion that the relationship between the parents was such that one of them needed to have sole parental responsibility for the child. Their inability to cooperate and respect each other has been demonstrated in spades since orders were made in 2014. The mother has absented herself from [X]’s life and there would be no point in me making an order for equal shared parental responsibility. An order for sole parental responsibility is appropriate.

35. In the minute of order he prepared for the hearing the father proposed a defined regime for the mother to spend time with the child, but there is no point me doing that given the current circumstances. I am going to make an order that time be as agreed between the mother and the father in writing.

36. I am going to make the order sought by the father about the passport but I think it needs to be in a slightly different form. I have no reason to believe that the father is likely to take the child overseas and not bring her back. He lives in Sydney and has for many years. He has a new family. His wife is present in Court today and they have two young children. I have no reason to suppose that he is going to abscond with the child.

37. To ensure that this matter does not need to come back to Court given that it has been in Court almost consistently for the last six years, I am going to make an order that the father may obtain a passport for the child and travel internationally with the child notwithstanding that the consent of the mother has not been obtained.

38. I am going to make order 6 about the maternal grandfather. He is in jail for child sex offences but he will get out in due course so it is important that that restraint order be made.

39. I will make an order that the mother and father are each to keep each other advised of their contact details, including mobile telephone number, email address and residential address.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     30 January 2019