BEST & TYERS
[2016] FamCA 1093
•15 December 2016
FAMILY COURT OF AUSTRALIA
| BEST & TYERS | [2016] FamCA 1093 |
| FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Best interests – where the applicant mother seeks final orders on an undefended basis – where the family has had historical involvement with the Department of Health and Human Services – where the evidence is untested – order that the child live with the mother and spend time with the father FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the mother seeks to have the matter heard on an undefended basis in circumstances where the father has filed a Notice of Discontinuance – where the father has filed no new material and has not participated in the proceedings since filing the Notice of Discontinuance – where the father has completed an Acknowledgment of Service- where procedural fairness has been afforded to the father – application granted |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 64B and 65DAA |
| Allesch & Maunz (2000) 203 CLR 172 Lorde & Chu [2014] FamCAFC 228 at [36] |
| APPLICANT: | Ms Best |
| RESPONDENT: | Mr Tyers |
| FILE NUMBER: | MLC | 3122 | of | 2016 |
| DATE DELIVERED: | 15 December 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 28 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Epstein |
| SOLICITOR FOR THE APPLICANT: | Samantha Ward Pty |
| THE RESPONDENT: | No appearance |
Orders
That the parents have equal shared parental responsibility for the child of the relationship B born … 2012.
That the child live with the mother.
That the child spend time with and communicate with the father as follows:
(a) Every Monday, Wednesday and Friday by telephone or Skype between 6pm and 6.30pm;
(b) Any weekend in Victoria when the father is able to accommodate same providing the father shall give the mother at least 14 days prior notice of his intention to exercise such time with changeovers to occur at McDonalds C Town;
(c) Otherwise as agreed between the mother and father.
For the purposes of communication of information between the parties, the mother and the father shall communicate by:
(a) Telephone for matters of an urgent nature; and otherwise
(b) Text message or email for day to day matters including arranging for each party to spend time with the child.
Neither party shall denigrate the other party or allow any other person to do so in the presence or hearing of the child.
In the event the child is hospitalised the parent in whose care the child is shall notify the other parent as soon as practicable on the first contact with the hospital.
Each parent shall keep the other informed of:
(a) Any doctor the child attends whilst the child is in their care and any medication which is prescribed for the child; and
(b) Any religious or school events that the child is to attend.
Both parties are entitled to receive school reports, newsletters, and any written advice affecting the education of the child from any school attended by the child.
Each party shall keep the other party advised of their current address, current telephone number and current email address.
Any changes are to be advised to the other party within 24 hours of the change occurring.
Each party shall be entitled to receive at their respective expense school reports, school notices, school photographs and the like.
Each party is entitled to attend any school events which parents would usually attend.
The father have liberty to apply to vary or set aside these orders pursuant to the Family Law Rules 2004 (Cth) within 28 days of a copy of these Orders being sent to his address for service.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Tyers 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 |
FILE NUMBER: MLC 3122 of 2016
| Ms Best |
Applicant
And
| Mr Tyers |
Respondent
REASONS FOR JUDGMENT
On an undefended basis, the mother seeks final parenting orders for the only child of the relationship, B who is currently aged four years (born in 2012).
The father did not attend Court for the hearing and did not file a response to the mother’s Amended Initiating Application filed 25 August 2016 which was served on him. He has filed no material since a Notice of Discontinuance was filed on 1 June 2016.
The mother seeks the following final parenting orders :
·That the parties have equal shared parental responsibility for the child;
·That the child live with the mother;
·That the child spend time with and communicate with the father:
oevery Monday, Wednesday and Friday by phone or skype between 6pm and 6.30pm;
oon any weekend in Victoria when the father is able to accommodate same providing the father gives the mother at least 14 days’ prior notice, with changeovers to occur at McDonalds C Town;
ootherwise as agreed between the parents.
The mother also seeks additional orders in relation to matters including communication between the parties and the avoidance of denigration of either party in the presence of the child.
The orders sought are in similar terms to interim orders made by consent on 28 April 2016 in the Federal Circuit Court.
BACKGROUND
This is a matter with a complex history, intersecting with another case, which was decided by Cronin J earlier this year.
The following background is based on the unchallenged evidence of the mother in support of her application and the procedural history.
The applicant mother is 31 years old and engaged in home duties. The parties began cohabiting in June 2011 in New South Wales and separated in May 2013. During the course of the relationship the mother was the main caregiver for the child and the child continued to live with her after separation, spending time with the father by agreement. Following the parties’ separation, the mother relocated on a number of occasions and has resided in a suburb on the outskirts of Melbourne since December 2015.
Historically the family has had contact with the relevant child welfare authorities on a number of occasions. New South Wales Family and Community Services records indicate that Apprehended Violence Orders have been in place naming both the father and mother as the person in need of protection, although there are no current orders.
While the child was spending time with the respondent father over Easter 2016, the mother received a text message from the father suggesting that it would be in the best interests of the child to stay with him for longer. Attached to that text message was a photograph of part of a judgment delivered 20 years ago which made findings against the maternal stepfather.
The maternal stepfather is the former partner of the maternal grandmother who is estranged from the mother. In 1998, there were findings made in the Family Court that on the balance of probabilities, the maternal stepfather sexually interfered with the applicant mother, who was a child at the time. The applicant mother disputes the truth of those findings, stating that she was told to make false allegations of abuse by her now estranged mother. In a recent case in this Court known as Whitecross & Reilly [2016] FamCA 254, the mother gave evidence about the falsity of these allegations.
The applicant mother and the child live with the maternal stepfather’s new partner and her child from a former relationship, and have done so since 21 December 2015. The maternal stepfather is a member of the Australian public service and, because of his geographic distance from his new partner, he has maintained his own accommodation but sometimes lives with his new partner, her child, the applicant mother and the child.
On 12 April 2016, the mother filed an Initiating Application seeking among other things a recovery order in relation to the child. On 22 April 2016, she filed an Application in a Case seeking that all times be abridged, that the application be transferred to the Family Court, that the child be found and recovered and that the child live with the mother and spend time with the father as the Court deems appropriate. On 22 April 2016, Judge Stewart made orders adjourning the proceedings to 28 April 2016, with the father being ordered to attend Court personally and deliver the child to the child minding service at 9.45am.
On 21 April 2016, Cronin J delivered his reasons in Whitecross & Reilly. It was concluded by Cronin J in that case that the maternal stepfather in this case did not pose a risk to the child in that case. Cronin J considered it unnecessary that there be any injunctive order put in place in relation to the maternal stepfather.
The mother deposed that the maternal step father has never been alone with the child and did not have any contact with her until she went to live in a suburb on the outskirts of Melbourne. She deposed that the maternal stepfather stayed one night and left at 6am in the morning and that at no time was the child alone with him. The mother deposed that she sleeps in the same bedroom with the child.
The mother’s Initiating Application filed in the Federal Circuit Court on 12 April 2016 was ultimately transferred to this Court with a request for consideration of a listing as a Magellan case. This was because of the allegations raised by the father about the maternal stepfather. Proceedings had also been initiated by the father in the Parramatta Registry of the Federal Circuit Court, and orders were made consolidating those proceedings with the present proceedings.
On 28 April 2016 when the proceedings were transferred, interim parenting orders were made by consent in the Federal Circuit Court providing for the parents to have equal shared parental responsibility, for the child to live with the mother and spend time with the father for the whole of the June/July holidays, any weekend when the father is in Victoria, every Monday, Wednesday and Friday by telephone for half an hour and otherwise as agreed. Various other orders regarding communication and information sharing were made together with an injunction which prevented the mother from allowing the child within the presence of the maternal stepfather. The maternal stepfather’s new partner provided an undertaking not to allow the child to be in the presence of the maternal stepfather.
Procedural Fairness
The father’s Notice of Discontinuance was filed on 1 June 2016, following the handing down of reasons for judgment by Cronin J in Whitecross & Reilly.
On 2 June 2016, Registrar Field made orders adjourning all extant applications to a later hearing before Bennett J to determine whether final orders should be made on an undefended basis. Further orders were made for the applicant mother to file and serve the respondent and his lawyers with a minute of the final orders sought. The court noted that because the father had filed a Notice of Discontinuance on 1 June, his lawyers had not initially been contacted on 2 June 2016, and noted the outcome of the decision in Whitecross & Reilly.
On 12 August 2016, neither the father nor his representative appeared in Court. On that date, Bennett J made orders adjourning the matter to the duty list on 26 September 2016 and ordering that in anticipation of that date, the mother file and serve any Amended Initiating Application setting out with precision the orders she seeks by no later than 29 August 2016. On that date, Bennett J ordered that if the father failed to file any Response within the time provided in the Family Law Rules, the mother have leave to proceed with her Amended Application and to seek that final orders be made on the adjourned date without further input by the father.
On 25 August 2016, the mother filed her Amended Initiating Application.
The father has not filed a Response, and has filed no material since the Notice of Discontinuance filed on 1 June 2016.
On 26 September 2016, the father again failed to appear before the Court. At that time, the solicitor for the mother indicated that the father had been sent a copy of the Amended Application via post to his address in August 2016. I considered that given the circumstances and given that the mother sought to proceed with her Amended Initiating Application on an undefended basis, that personal service be effected in order to ensure that procedural fairness was accorded to the respondent father.
On 26 September 2016, I accordingly ordered that this matter be adjourned to the duty list on 28 October to allow for the mother to personally serve her Amended Initiating Application filed 25 August 2016 on the father. I ordered that the mother file an Affidavit of Service at least 7 days prior to the adjourned date, and ordered that if the father fails to file any response within the time provided in the Family Law Rules, the mother have leave to proceed with her Amended Initiating Application and to seek that final orders be made on the adjourned date without any further input by the father. A copy of this order was also to be personally served on the father.
On 26 October 2016 an Affidavit of Service was filed on behalf of the mother, along with an Acknowledgment of Service signed by the father. The affidavit indicated that service by hand was effected upon the father without incident or any objection from the father, and that the father agreed to sign the Acknowledgment of Service document. On 28 October 2016, the mother provided an Affidavit of Proof of Signature indicating that she recognised the father’s signature on the Acknowledgment of Service document.
The father has not filed any further material.
As High Court authority makes plain (Allesch & Maunz (2000) 203 CLR 172), where a person’s interests may be adversely affected by a Court’s decision, that person must be given the opportunity to place before the Court material and submissions before a decision is made. However, as Kirby J emphasised, what is important is the opportunity to be heard. As his Honour observed, at [38]:
…Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
I am satisfied that the father has been personally served with the material outlined above and that he has acknowledged service and was aware of the hearing. I am satisfied that he has been afforded the opportunity to be heard. In these circumstances it was appropriate to proceed with the application on an undefended basis.
Documents relied upon by the mother
The applicant mother relies upon her Amended Initiating Application filed 25 August 2016 and her affidavits filed 12 April 2016 and 22 April 2016.
The relevant law
These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Each of the parents of a child has parental responsibility for the child subject to any order of a court under s 61C. A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)).
Parental responsibility is defined under s 61B of Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
Determining the child’s best interests
Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.
Primary considerations
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.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]
[1] Family Law Act 1975 (Cth) s 60CC(2A).
There is no evidence of any need to protect the child. I am satisfied that the mother’s proposals would allow the child to benefit from a meaningful relationship with the father should he choose to spend time with the child in Victoria. There are no proposals of the father to consider.
The additional considerations
The additional considerations are listed at s 60CC(3) of the Act. I have referred to only those which are relevant to the facts and circumstances of this case.
Section 60CC(3)(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
No evidence is adduced about the child’s views here. In view of her age, little weight could be given to them.
Section 60CC(3)(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)
According to the unchallenged evidence of the mother, the mother was the primary caregiver for the child when the parties lived together and the child continued to live with the mother after separation. The child has spent time with the father by agreement during holiday periods
There is no detailed evidence about the child’s relationship with other persons, save for an indication that the mother and child live with the maternal stepfather’s partner, and that partner’s teenage daughter. The mother is estranged from the maternal grandmother and thus presumably the child has no relationship with the maternal grandmother. The mother’s unchallenged evidence is that the child is “surrounded by loving family”.
Section 60CC(3)(c): the extent to which each of the child's parents 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
On the mother’s evidence, she is the child’s primary carer and has been since her birth. On the mother’s evidence, the father has unrestricted contact with the child for several weeks every few months by agreement.
The mother’s unchallenged evidence is that she has, in the past, “always had a fair and amicable relationship with the father”, “consistently informing him of the child’s attendance to doctors” and day care kindergarten activities. The mother’s evidence is that the parents communicate by text, email and Skype.
Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
There was no evidence about the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligation to maintain the child.
Section 60CC(3)(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
The orders sought by the mother in this case would maintain the current living arrangements for the child, wherein the child resides primarily with the mother and spends time with the father.
Section 60CC(3)(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
The orders sought by the mother allow for contact to continue in a way that accommodates the fact that the father resides interstate and is only able to see the child periodically. However there are no proposals from the father.
Section 60CC(3)(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
There is little evidence about the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs.
While allegations had previously been raised in relation to the mother’s capacity to appropriately parent the child and the mother’s mental health, information provided by the Department of Health and Human Services indicates that “the mother has made frequent changes to her living arrangements however appears to be settled and stable ….with the support of her family and friends”. The mother’s current circumstances were “identified to support the child experiencing stability and routine”.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Little evidence has been adduced in relation to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents and there are no proposals made by the father.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
There has been a history of family violence in the relationship between the mother and father, and domestic violence orders have been made against both parents naming the other parent as the protected party. In her affidavit material, the mother deposed that the Apprehended Violence Order made against the father was for a period of two years, but has now expired.
At the request of this Court, a representative from the Department of Health and Human Services has advised that although the Department has investigated the family, there was “an absence of evidence to substantiate that the child has been exposed to significant harm”.
The mother does not adduce any evidence of current concerns about family violence.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
There is no evidence of any current family violence orders.
There are no inferences that can be drawn from orders which were made in the past because, other than the fact that they were made historically, there is no evidence about them.
On the mother’s evidence, “there were significant difficulties” in the relationship between the parties while they were living together. The mother refers to a Queensland “apprehended violence order” noting that it was made for a period of two years and has “now expired”. The mother deposed that following separation, the parties “had a reasonably civil relationship”. She deposed that since separation the parties have been “amicable” and that she always encouraged the father to have unrestricted contact with the child for a couple of weeks every few months by agreement.
Section 60CC(3)(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
The orders sought are in similar terms to those made by consent on 28 April shortly before the father filed his Notice of Discontinuance. On the limited evidence available it is appropriate to make orders that will provide certainty and reflect the current arrangements.
The presumption of equal shared parental responsibility
The mother seeks an order that the parents continue to have equal shared parental responsibility for the child.
Under s 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA (2) provides:
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
A child will be taken to spend substantial and significant time with a parent only if :
(a)the time the child spends with the parenting includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.[2]
[2] Family Law Act 1975 (Cth), s 65DAA(3)
Section 65DAA (5) sets out the mandatory factors to which the court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the parents. These factors include how far apart the parents live from each other, the parent’s current and future capacity to implement an arrangement for such time, the parent’s current and future capacity to communicate with each other to resolve difficulties in implementing such an arrangement and the impact that such an arrangement would have on the child. The court must have regard to other matters as the court considers relevant.
Sections 65DAA(1), (2)(a) and (2)(b) are concerned with the reality of the circumstances of the parents and child, not whether it is desirable that there be equal time or substantial and significant time spent by the child with each parent.
There is no proposal from the father to spend equal time or substantial and significant time with the child and the father resides interstate. In these circumstances I cannot find that it is in the best interests of the child to spend equal or substantial and significant time with the father. However the proposals of the mother would appear to provide for the child to spend substantial and significant time with the father should he choose to exercise that time.
Conclusion
I am satisfied that it is in the best interests of the child to make most of the orders in the terms proposed by the mother on her unchallenged evidence. The presumption of equal shared parental responsibility applies. I am satisfied that it is in the best interests of the child to reside with the mother and spend time with the father as proposed in her application. There are no proposals made by the father who has been provided with an opportunity to be heard and has elected not to participate in the hearing.
The mother seeks orders that all communication between the parties “relate only to matters concerning the child”. I regard this order as unnecessary on the evidence and do not propose to make such an order because of the difficulty of enforcing such an order which might lead to further litigation. This would not be in the best interests of the child.
For the same reasons I do not propose to make the order sought by the mother that each parent “keep the other informed of any other matters relevant to the child’s welfare”. Given that the parents have equal shared parental responsibility for the child, it is implicit that they will keep each other informed of any matters relevant to the child’s welfare.
I propose to make a specific order for the father to have liberty to apply within 28 days of the order being sent to him, to vary or set aside the orders. This is in accordance with comments made by the Full Court in Lorde & Chu [2014] FamCAFC 228 at [36] that where a judge makes an order in the absence of a party who will be affected by the order, it is desirable that the judge expressly provide that a party in whose absence the orders were made have liberty to apply within a specified period of time to have the orders varied or set aside.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 December 2016.
Associate:
Date: 15 December 2016
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