Barbero and Barbero

[2013] FCCA 1486

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARBERO & BARBERO [2013] FCCA 1486

Catchwords:
FAMILY LAW – Parenting – undefended hearing of mother's response after father discontinued his application.

Legislation:  
Family Law Act 1975, Part VII

Rice & Asplund (1978) 6 Fam LR 570

Applicant: MR BARBERO

Respondent: MS BARBERO

File Number: PAC 3634 of 2012

Judgment of: Judge Halligan

Hearing date: 25 July 2013

Date of Last Submission: 25 July 2013

Delivered at: Parramatta

Delivered on: 25 July 2013

REPRESENTATION

Solicitors for the Applicant: No Appearance

Solicitors for the Respondent: Bell Lawyers

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission New South Wales

ORDERS

1. The mother shall have sole parental responsibility for the children X born (omitted) 1999 and Y born (omitted) 2003.

2. The children shall live with the mother.

3. The question of the children spending time or communicating with the father is reserved.

4. Otherwise the mother's amended response is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Halligan delivered this day will for all publication and reporting purposes be referred to as Barbero & Barbero.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 3634 of 2012

MR BARBERO

Applicant

And

MS BARBERO

Respondent

REASONS FOR JUDGMENT

1. This is the final determination of parenting proceedings concerning two children, X born on (omitted) 1999 who is therefore 14 and Y born (omitted) 2003 who will shortly turn 10.

2. The father commenced the proceedings with an application filed on

   
   

   22 August 2012, however, he discontinued his application by notice of discontinuance filed on 4 April 2013.  That was at a time when there was before the court a response from the mother seeking orders different to those sought originally by the father.  Notwithstanding the withdrawal of the father’s application, there remains for determination the mother’s now amended response.

3. Not only did the father discontinue his application, he has ceased to participate in the proceedings by not attending court and as I understand it his solicitors have withdrawn from acting for him last month.

4. The mother is seeking orders for sole parental responsibility of the children and that the children live with her.  At the commencement of this hearing, she was proposing that the children spend time with the father in accordance with their wishes and at all other times as may be agreed by the parties.  The mother was also proposing orders in relation to the parents both being entitled to attend events involving the children including sporting fixtures and extra curricula activities and school functions and the like, and that the children have reasonable telephone communication with the father as the children may request with the mother to facilitate it and with the mother to provide privacy during those conversations.  It was also proposed that the children have communication with the father by way of gifts from the father which the mother was to give to the children.  The mother proposed certain other orders including a mutual non-denigration order, an order they keep each other informed in relation to their contact details and the like.

5. The evidence in the mother’s case, which I accept, it being unchallenged, raises issues concerning exposure of these children to family violence and to verbal and physical abuse by the father.  In fact, there is evidence before the court extracted from the elder child’s diary which illustrates rather vividly the significant adverse effect at least upon her of the father’s behaviour towards her and her sibling and towards the mother.

6. At the moment, neither of these children wish to have a relationship with their father.  They certainly do not want to see him.  The elder child certainly does not want to speak to him.  The mother’s position is that it is possible that as the younger child grows, despite now not wanting to see the father, he may perhaps express a wish at some point to speak to him.

7. I questioned whether, in light of the allegations raised in the mother’s evidence, the mother was satisfied that if it were the case that either of these children said to her that they wished to see their father unsupervised - bearing in mind the mother sought an order that the children spend time with the father in accordance with their wishes - she believed that the children would be safe with him.  The mother has indicated that she is not so satisfied that they would be, and has therefore withdrawn that part of her application.

8. That is wise in my view in light of the evidence in the mother’s case which I accept. It must always be borne in mind and it is trite to say that in determining what parenting order to make it is always the children’s best interests that are the paramount consideration. That has always been the case for so long as the Family Law Act has been in force. The current expression of that principle in Part VII makes it no less emphatic.

9. In determining where the children’s best interests lie, the court must take into account the matters set out in section 60CC.  The first of those considerations under subsection (2) are two considerations that in some cases can appear to stand in opposition to one another, although in reality they are not.  The first is the benefit to the children of having a meaningful relationship with both of their parents.  The second is the need to protect children from exposure to abuse, neglect or family violence.  The Act in its current iteration - and I note that on the basis of the date of institution of these proceedings it is the current iteration that applies,  not the one that applied before the June 2012 amendments commenced - child protection must be given precedence over maintaining the relationship with a parent.

10. In some respects that is quite unremarkable.  One might wonder what benefit accrues to a child of a meaningful relationship with an abusive parent.  A relationship with a person may be meaningful in both a positive and a negative sense, and where section 60CC(2)(a) speaks of the benefit of a meaningful relationship, it is clearly talking about a beneficial relationship, not a detrimental one, and a relationship with an abusive parent is not beneficial, it is detrimental.

11. I am not saying that it is in these children’s best interests in isolation for them not to have a relationship with their father if it were possible in an appropriate way and in a way that would be beneficial to the children, that is, in circumstances where they would be safe, where they would be respected by their father, where the father would have an interest in pursuing a relationship beneficial to the children and not a relationship meeting his needs alone.

12. The mother indicated candidly through her solicitor that whilst at the moment she can see apparently no therapeutic option to attempt to address the problem in the children’s relationships with their father, the problems coming from the father’s treatment of them, she nonetheless is of the view that there is a possibility that Y may at some point want to speak to his father.  The question would be, bearing in mind that the father has withdrawn from these proceedings, would the father be willing to speak to his son if he wished to talk to him, if the outcome of these proceedings would be in effect to endorse the children’s current rejection of their father.

13. If one looks at the mother’s evidence it is entirely possible the father has seen his relationship with his children as being one for his benefit and gratification rather than for the advancement of the children’s interests and it may be that the apparent rejection of their father as he might see it by the children may simply result in a rather hardened attitude by him and a negative one at that towards his own children.  It would not be beneficial to the children to have much involvement with a parent if that was his attitude.

14. I repeat, if it were possible for either of the children to see the father in an environment safe for the children, an environment where they are respected, where they are not verbally abused, where they are not threatened, then I am satisfied that it would benefit these children to at least have the prospect of some knowledge of their father.  The difficulty is that with the father not participating in the proceedings at this time I am unable to determine whether that could be so.

15. At this stage I am not satisfied that it would be in the children’s best interests for me to make any particular order that might – with the court’s imprimatur as it were – sanction or support the children spending time with their father.  But by the same token I would be loathe at this stage, if it were not absolutely necessary, to make an order expressly saying that they should not see their father.  Similarly, in relation to the telephone communication.

16. For that reason, I have raised with the mother through her legal representative and the representative of the Independent Children’s Lawyer today their attitude to an alternative to the orders sought by the mother, and that is, that there should be a sole parental responsibility order in the mother’s favour and that the children should continue to live with her, with the issue of the children spending time and communicating with the father being reserved.  That is, the issue of the children spending time or communicating with their father would not be determined one way or the other at this stage.  In the absence of any order dealing with it, if Y or X for that matter expressed a wish to ring their father, it leaves it open to the mother to facilitate that if she is satisfied it is appropriate.  If the father chooses to send gifts to the children it is always open to the mother to pass them on to the children unless she was satisfied that there was something in relation to them that would be harmful or detrimental to them, and I am satisfied that she would do so.

17. In my view that is a preferable course in this particular case than to either appear to give the court’s imprimatur as being in the children’s best interests that there should be the possibility of time with the father on the one hand, or to explicitly say that its in the children’s best interests that they should have no relationship with their father.

18. I accept the mother’s evidence that really any prospect of any sort of non-detrimental relationship of the children with their father really lies with the father.  The ball is in his court.  It is he who must change.  If there were to be some change then it is, in my view, impossible for what has been done and what the children have experienced to be undone.  They will live with that for the rest of their lives, but if there is some way in which they can at least have some civil dealing with their father at some point, and feel safe and respected in doing so, then I am satisfied there would be nonetheless some benefit to them and I should leave that door open.

19. If, for example, the father were to accept his responsibility for the situation that exists and to come back to court giving evidence sufficient to satisfy the court that he has appropriately addressed those matters and that otherwise it would be beneficial to the children to have some defined regime of time or communication, then he is always able to do that and I need to emphatically say that although I will formally dismiss the balance of the mother’s application, that is not done in a sense to raise a bar under Rice &  Asplund, (1978) 6 Fam LR 570, against her in relation to questions of spending time or communicating. That is the reason why I will express an order to reserve those questions at this point specifically so that no Rice & Asplund bar can be raised.

20. Otherwise, without going through the evidence and the list of considerations in section 60CC in detail, suffice to say I am satisfied that there has been family violence, accepting the evidence of the mother, and that the children have been abused in the way that the term is defined in the Act and therefore the rebuttable presumption under section 61DA does not arise.

21. In light of those matters and the fact that the father has ceased to participate in these proceedings I am satisfied that it is in the children’s best interests that the mother have sole parental responsibility for the children and that they should continue to live with her.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Date:  27 September 2013