Barber and Morrane

[2007] FamCA 1196

FAMILY COURT OF AUSTRALIA

BARBER & MORRANE [2007] FamCA 1196

FAMILY LAW – CHILDREN – Shared parenting

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: MS BARBER

RESPONDENT: MR MORRANE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3752 of 2005

DATE DELIVERED: 8 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 8 OCTOBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MANDELERT

SOLICITOR FOR THE APPLICANT: BOOTHS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR ALLEN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROBIN HARRISON & ASSOCIATES

Orders

1. That all previous parenting orders be discharged.

2. The father and the mother have equal shared parental responsibility for all major decisions concerning the two children of the relationship J born … December 2001 and L born … February 2003 save and except that the mother have sole parental responsibility concerning the schools the children will attend and for decisions relating to health and related issues of the children.

3. The said children live with the mother.

4. The time spent by the father with the two children and his communication with them be by mutual agreement in writing.

5. The appointment of the Independent Children’s Lawyer be discharged.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That IT IS DIRECTED the minutes remain on the court file and be marked as Exhibit “A” and that the letter of the Independent Children’s Lawyer addressed to the father be marked as Exhibit “B”.

3. That all matters be removed from the list of cases awaiting a hearing.

4. That a sealed copy of these orders be served upon the father at his last known address by ordinary post by the Independent Children’s Lawyer.

5. That the father forthwith pay the costs referred to in paragraph 11 of the orders made on 22 November 2005 by Federal Magistrate Connolly.

6. That 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.

AND THE COURT NOTES

That the Independent Children’s Lawyer is of the view that the father’s time spent with the children in the future should be initially supervised.  The view is based on the recommendations of the family consultant that changeovers other than at a contact centre be at a police station nominated by the mother.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Barber and Morrane.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3752 of 2005

MS BARBER

Applicant

And

MR MORRANE

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing today.  It is not the first time that the case has been listed for a final hearing.

2. The father was called outside of the court and there was no appearance.  I am satisfied that as a result of advice from counsel for the Independent Children’s Lawyer and the presentation of a letter from his instructor that the father has been aware of these proceedings.  I am told that rather than him losing interest in the proceedings, he has gone to ground as a result of a criminal incident some time ago and is a person of interest to the police.

3. The parties lived together from 1999 and separated in February 2003.  There is some dispute about the extent of the relationship but it matters little.

4. There are two children of the relationship, a son J born in December 2001 and a daughter L born in February 2003.  The father has not seen the children for the best part of a year save for when he had a fleeting moment with them at the time that the family report was prepared.

5. There does not appear to be any dispute in this case relating to the responsibility for the primary care of those children.  The dispute seems to centre on what time the father should spend involved in the children’s lives. 

6. The proceedings started in the Federal Magistrates Court of Australia in October 2004 and interim orders were made on the basis of the time sought by the father. 

7. When the matter finally came on for hearing as a final trial on 22 November 2005, the father did not attend.  The absence of the father was of sufficient concern for Federal Magistrate Connolly to make an order suspending the father’s time with the children and making an order for costs of $1660 for both the mother and the Independent Children’s Lawyer against the father.  Although fixing that sum, Federal Magistrate Connolly reserved the costs to be ultimately determined when the matter came on for final hearing.

8. Only days later, the proceedings were transferred to this Court.

9. The father’s time with the children was agreed at that stage.  He was to spend each weekend with the children from 5.00pm Friday to 5.00pm Sunday.

10. Matters remained relatively calm until the end of 2006 when the mother filed a Notice of Risk of Child Abuse on 14 December 2006 alleging that the father had burnt J on his chest with a cigarette.  There is no doubt that there was a mark on J’s chest above his nipple and the mother asserts that that was not there when J went to the father.  According to the mother, J complained that the father had inflicted the burn because he would not do what he was told.  Part of the difficulty with that issue was the fact that the allegation was said to have arisen from time spent between the father and J on 30 September 2006. 

11. As a result of the allegation, Senior Registrar Fitzgibbon ordered that the time that the father spend with the children be supervised at a contact centre.  The Department of Human Services became involved and during an interview, J disclosed that his father burnt him with the cigarette.  The Department took no further action on the basis that the mother was acting protectively.  It should also be noted that J was examined at the Monash Medical Centre and doing the best I can, it is unclear just exactly what finding the doctor made save that J had been subjected to some form of trauma.

12. Notwithstanding the orders of the Senior Registrar for the father’s time to be spent supervised at a contact centre, it seems to me that the father did not follow up on that organisation notwithstanding the fact that he had completed the necessary paperwork.  As a result, the children did not see their father between the incident in late September 2006 and when they came to the Court for the preparation of the interview for the family report.  At the interview with the family consultant, J identified the father as the person who burnt him with a cigarette.

13. The family report shows that both parties have moved on with their personal lives.  Each has repartnered.  However, it is clear that there is no communication of any nature now between the parties predominately because of the fact that the father has not had time with the children and from what I can gather, has not followed up on any issues associated with them.

14. There are significant allegations of violence made by the mother against the father as a result of which she said she sustained physical injuries as well as allegations of drug use and excess of alcohol use by the father.  Furthermore, there is the incident which occurred in October 2006 about which the Independent Children’s Lawyer suggests the father has “gone to ground”.  According to the mother, the father attended at the home of the sister of her new partner and acted in a threatening and aggressive manner.

15. The matter which is of most importance to me however is the fact that there is a serious allegations of violence towards J.  The father denies that that was caused by him.  The mother expresses concern about the ongoing problems of alcohol and drug abuse none of which seemed to have been addressed.

16. When the family consultant interviewed the father and his new partner, the father was unemployed and his new partner was unable to work because of a broken arm. 

17. The family consultant reported the father and his partner as articulate people but noted that the new partner dominated the sessions.

18. In that interview, the father indicated that he thought the children should live with him because very early in the life of L, she was given to him because of the mother’s incapacity to care for the child.  That did not last.

19. Notwithstanding the statement to the family consultant that he wanted to care for both of the children, nothing further was done by the father.  The family consultant noted that the father interacted positively with the children.

20. Ultimately therefore the issue of the cigarette burn as well as the allegations of drug and alcohol abuse remain unresolved.  I am left with a situation where the father has chosen not to participate in the proceedings.  Both the mother and the Independent Children’s Lawyer indicated that I should proceed with the matter to finality. 

21. The governing law is contained in the Full Court’s decision in Goode and Goode[1].  There the Full Court held:

    [1] (2006) FLC 93-286

    Section 60CA deals with the best interests of the child and provides that:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

    This provision of the legislation was formerly s 65E and the wording of the section has not changed. 

    In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:

    Primary considerations

    (2)     The primary considerations 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.

    Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    Additional considerations

    (3)     Additional considerations are:

    (a) 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;

    (b)     the nature of the relationship of the child with:

    (i)     each of the child’s parents; and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)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;

    (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)     either of his or her parents; or

    (ii)any other child, or other person (including any grandparent        or other relative of the child), with whom he or she has been         living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)     the capacity of:

    (i)     each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j)any family violence involving the child or a member of the child’s family;

    (k)any family violence order that applies to the child or a member of the child’s family, if:

    (i)     the order is a final order; or

    (ii)     the making of the order was contested by a person;

    (l)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;

    (m)any other fact or circumstance that the court thinks is relevant.

    Section 60CC(4) provides:

    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a)     has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)     to spend time with the child; and

    (iii)     to communicate with the child; and

    (b)     has facilitated, or failed to facilitate, the other parent:

    (i)participating in making decisions about major long-term issues in relation to the child; and

    (ii)     spending time with the child; and

    (iii)     communicating with the child; and

    (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

22. The Full Court explained:

    Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child.  “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

    The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 

    If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).

    The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

23. The Court went on to say:

    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents.  These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

24. The rebuttal of the presumption arises from a finding of family violence.  Family violence is defined in s 4 of the Act as follows:

    conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

    The Legislature has added the following note:

    Note:  A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

25. The definition requires a person to reasonably fear for or be apprehensive about, their personal wellbeing or safety. It is a simple definition yet unlimited in time or severity. The inclusion of the word “reasonably” imports an objective element. On the mother’s material which is the best evidence I have because the father is not here to dispute it, I am satisfied that the mother does have a reasonable fear of the father.

26. In this case, I am satisfied that there is not only no communication between the mother and the father but also that the father has chosen to absent himself from the lives of the children and as such, applying the presumption, would not be in their best interests.

27. The mother however asked that I make orders giving the parties the equal responsibility save for issues of health and education. The Independent Children’s Lawyer supported that.  I think this is a case where notwithstanding the focus of the Parliament on parents working together in the best interests of their children, that has not happened and there is little prospect of change in the future. It is therefore appropriate that I find that it is not in the best interests of the children for the presumption to be applied.

28. Accordingly, I must make a parenting order which will best promote the future of these two children and which is in their best interests.

29. In respect of the provisions of s 60CC, I am satisfied that at the two primary considerations, it is fundamentally more important to protect these children from physical or psychological harm by being subjected to or exposed to abuse and family violence.  There is sufficient evidence in this case to say that the children were aware of the violence alleged by the mother and I have the unresolved issue of the cigarette burn.  Taking a cautious approach, I have taken into account that the children need to be protected from that sort of violence and the orders I propose to make will provide that.

30. I have taken into consideration that these children are too young to have any views expressed with any weight.

31. I do not know other than the very short glimpse that I am given by the family consultant’s report as to what sort of a relationship the children have with the father but it is quite clear that the evidence of the mother shows that they are being properly catered for in her household.

32. The mother has indicated a willingness to encourage a relationship in the future between the father and the children by indicating that if there is to be time spent with them, it is to be by written agreement and the handover is to be under strict supervision conditions.  To that extent, the father has not had the door shut on him in respect of his future involvement in the lives of the children but I am left pondering as to what his real views are about his role in the lives of them.

33. I have also taken into account the fact that the mother has the capacity to care for the children notwithstanding a very crowded household that she manages and there is no suggestion that I could see other than that she is appropriately caring for the emotional and intellectual needs of these children.

1. The absence of the father obviates the necessity for me to make findings of a positive nature about the violence both to the mother and to J but I am left with a very strong impression that the father has little regard for the law as is indicated by his criminal history.

2. It is important in the lives of these children that they have some certainty and the orders I propose to make will enable that to occur.

3. Section 60CC(4) also requires that I contemplate what each party has done subsequent to separation in respect of parenting responsibility.  In my view, the course of action adopted by them other in September 2006 was a responsible one but the father’s absence in these proceedings indicates where his priorities lie and if in fact he has “gone to ground”, it simply indicates that he regards his own interests above those of the children.

4. In the circumstances therefore it is appropriate that I make orders which leave open the possibility of the father having some meaningful relationship with the children in the future bearing in mind that he will have to face the accusation of his lack of interest in these proceedings.

5. As I earlier indicated, Federal Magistrate Connolly made an order for costs and reserved them to the final hearing because of the father’s absence in November 2005.  The same situation has occurred again although on this occasion, neither counsel for the Independent Children’s Lawyer nor counsel for the mother sought an order for costs in respect of these proceedings.  They simply sought that the orders made by Federal Magistrate Connolly be no longer reserved and it is appropriate in the circumstances that the father understand his obligations not to ignore proceedings such as this which put other people to inordinate and costly expense.  I therefore propose to make an order that the costs as fixed be now paid.

I certify that the preceding Thirty Eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: