Bracewell and Southall (No. 2)

[2009] FamCA 113

FAMILY COURT OF AUSTRALIA

BRACEWELL & SOUTHALL (NO. 2) [2009] FamCA 113

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Bracewell

RESPONDENT: Mr Southall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 89972 of 2007

DATE DELIVERED: 12 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lever, Duty Solicitor

COUNSEL FOR THE RESPONDENT: Ms A.E. Carter

SOLICITOR FOR THE RESPONDENT: Robinson Gill

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER OFarrell Robertson McMahon

Orders

1. That all existing parenting orders are discharged.

2. That the father have sole parental responsibility for the child C born … October 1998.

3. That the child live with the father.

4. That the father arrange service of these orders together with my two sets of reasons for judgment this day upon the mother by ordinary pre-paid post.

5. That my reasons for judgment this day be transcribed and be made available to the parties.

6. That the Independent Children’s Lawyer be forthwith discharged.

7. That the amended response of the father filed 29 January 2009 is dismissed.

8. Any material produced under subpoena shall be forthwith returned to the recipient of the subpoena.

9. That all extant applications be otherwise dismissed and removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Bracewell & Southall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 89972 of 2007

MS BRACEWELL

Applicant

And

MR SOUTHALL

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have an application by the father to proceed with the response that he has filed on an undefended basis and that position is supported by the Independent Children's Lawyer.  This is a case in which the mother filed an application for parenting orders, but having regard to the orders of the registrar who set the matter down for hearing on 11 December and the orders made by Senior Registrar FitzGibbon on 19 August, the substance of which has not been complied with by the mother, I propose to strike out her application.

2. That then leaves alive the question of the response of the father and the orders that he seeks.  Dealing with an undefended case literally means that the other party does not participate at all.  This court has had to deal with that situation on a number of occasions and it is particularly difficult in parenting cases.  The Full Court in Tate v Tate (2000) FLC 93-047 said that this court was all too frequently confronted with litigants who failed in their duties to make full and frank disclosure of financial affairs. The same could be said in respect of parenting matters.

3. As the Full Court said in Tate's case, the attainment of justice is the overriding objective in each individual case.  In the pursuit of such an objective it is the trial judge who is well placed to weigh up the factors affecting each litigant in making appropriate orders.  Tate's case has stood the test of time.  In 2004, O'Ryan J in Brown [2004] FamCA 1067 said:

   What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers in r 11.02(2) in appropriate cases.  In my view, it is not necessary that the circumstances be “exceptional”.  No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court's processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.

   The case law prior to the 2004 Rules was relatively harsh in responding to non-compliance.  The new rules have adopted these case law principles as they place great importance on case management and the need to comply with court orders.  As such, in my view, the new rules provide severe sanctions for non-compliance.

4. I adopt, with great respect, what O'Ryan J said.  Notwithstanding that view - and just to make sure that it is not asserted that I am simply following the rules or taking some case management position - I take into account what the High Court said in the State of Queensland and JL Holdings (1997) 189 CLR 146. The majority in that case said that justice is the paramount consideration in determining an application. Their Honours allowed an appeal against a decision of a Federal Court judge who refused to permit a party to amend pleadings.

5. Kirby J, however, in a separate judgment was much more expansive.  He set out:

   Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.

6. I am very conscious in this case that the father has been on almost a merry‑go‑round of hearings trying to get this case resolved to the best interests of the child.  Alternatively, if I was to apply the principles of adjourning the case simply to allow access by the mother to justice, I would be doing an injustice to the father.  In those circumstances and because of the facts to which I shall refer now, this is an appropriate case where I should apply the rule that the mother is not to participate and the proceeding can continue on an undefended basis.

7. The child was born in October 1998.  She is therefore 10 years of age.  The father in these proceedings has relied on three affidavits much of which is now historically outdated.  I have therefore permitted some information to be updated on a viva voce basis.

8. Registrar Riddiford also ordered that the parties undertake an issues assessment process with a family consultant.  I have seen that report but I do not take it into account on the basis that the evidence is not sworn and the family consultant is not available on the basis that she has now retired. 

9. The material, therefore, that I am relying on for the purpose of these proceedings is the three affidavits and the oral evidence. The father set out briefly that the case began in the S Magistrates' Court and an order was made on 6 August 2007, after three days of hearing, providing that the child live with him from Monday until Friday and then with her mother from Friday after school until Monday at the commencement of school. 

10. Subsequently, the proceedings were transferred to the Federal Magistrates Court, and the first hearing took place on 31 October 2007, at which time procedural orders were made for a hearing in February 2008.  The father set out that subsequent to the October hearing, the mother had failed to send the child to school on numerous occasions and had overheld her on a number of occasions.

11. In a second affidavit filed on 18 December 2007, the father set out a litany of complaints of the same sort that he referred to in his earlier affidavit.  He then expressed some concern about the child’s care and pointed to the fact that Department of Human Services ("the department") had been in contact with him on numerous occasions over the previous month regarding the child.  They had informed him that they were investigating the mother and her care of the child as well as the child of the mother's then relationship, B.

12. The father then said that, as a result of the child missing school, there were problems, to the extent that he had to engage a tutor to enable her to catch up over the Christmas break.  I have heard from him today in relation to the child’s progress, and, at best, it can be said that she is starting to meet the standards that would be expected of her. 

13. There were clearly a number of allegations also in the father’s affidavit about the behaviour of the mother towards he and his now wife.  On 29 January this year, the respondent father filed a further affidavit and that affidavit, albeit sworn only some days before, was really prepared for something that was happening in the court system in August 2008.  As such, it was limited in the information it provided.  Notwithstanding that, it again detailed all of the same sorts of problems that had occurred in the evidence to which I have referred; there seemed to be little respite for the child. 

14. In the affidavit, the father referred to the fact that the child took time to settle back into his care after she had been overheld by her mother and that the child constantly talked about her mother, saying that she was going to live with the mother and would not see her father, and then spoke in derogatory terms of the father’s wife. 

15. On 4 February 2008 the matter was transferred from the Federal Magistrates' Court to this court, and even on that day there were problems about organising with any certainty the relationship between mother and child. 

16. On 11 June 2008 the father said that the department attended at his home, with his wife present. The father’s wife indicated to the father that the department had received allegations in relation to the child and they spoke to her and indicated that they would be prepared to organise some time, on a supervised basis, between the child and her mother, if that would assist the father.  Surprisingly, perhaps, the father agreed, and in fact I am told that that occurred with the department supervising a period of time.  But even then there were problems, to the extent that the department seemed to be unhappy and intervened.

17. There were problems also about the mother attending a psychiatric assessment, and I do not have any information about her current state of mental health.  That troubles me.  Since the visit in July 2008 with the department supervising the mother and child, there has been no serious attempt by the mother to have any relationship with the child at all. 

18. The father pointed out to me that the mother has his telephone number and has always known where he lived but has not contacted him.  Rather sadly, there would have been a perfect opportunity - bearing in mind the hearing before the registrar was in December 2008 - for the mother to do something over the Christmas period.  Nothing happened.  Not only was there no contact but there were no presents for the child either. 

19. In those circumstances, for the mother to, firstly, today seek an adjournment and then indicate that she wishes to participate in the child’s life has a distinctly hollow ring about it. 

20. There have been problems in the child’s life, apart from her education.  It is clear, on the evidence from the father, that counselling was appointed with a Ms M about what was happening in the child’s life.  The child had indicated that she wished she was dead.  It appears that since the cessation of the relationship between mother and child, the counselling has no longer been needed, and, in those circumstances, the child now seems to be heading towards a normal life.

21. I heard some evidence today from the father about the fact that he has married, he has two children from that marriage:  J, who is 6, and N, 2.  The parties also have in their household a 12‑year‑old child of the father’s wife’s first marriage.  According to the husband, the relationship between all four children is good, apart from the usual problems that siblings have, and they play together extremely well.  The husband says that the child has a good relationship with his wife, who obviously shoulders a fair amount of the burden of the child’s care. The parties now live in a five‑bedroom home, and it is close to the school.

22. I am quite satisfied, on the evidence, that the father is providing for all of the physical and psychological needs of the child.  I have no concerns about his relationship and responsibilities with the child and he is to be commended for what he has done.  It is very sad to say, but this is a case in which I cannot make the same compliment of the mother.  I asked the father about what sort of questions, if any, the child was asking about her mother, and he indicated that there were no concerns raised by the child about wanting to see her mother. 

23. This is a case therefore where I have to deal with a child who needs to move on in her life; and, on the basis of Part VII of the Family Law Act, I am obliged to make a decision in which the best interests of the child are the paramount consideration. In determining what is in her best interests, section 60CC requires a mandatory guideline for various considerations. The two primary considerations need to be contemplated carefully in this case.

24. Section 60CC requires that I give consideration to the benefit of the child having a meaningful relationship with both parents.  I cannot force a parent to participate in a meaningful way in a child's life.  That is not going to work in this case, particularly if I take notice of the fact that the senior registrar endeavoured to open the door in August 2008. 

25. The second primary consideration is the need to protect the child from physical or psychological harm, from being subjected to abuse, neglect or family violence.  That particular provision in this case is extraordinarily important, because, on the evidence, which I accept, the mother has not accepted court orders tailored for the benefit of the child, and overheld the child.  She is subjecting the child to psychological harm, in the sense that the child becomes confused about what role each parent plays in her life.  That must stop. 

26. The additional considerations under the Family Law Act are set out in subsection (3). I have no information about the views that the child has about her mother, other than the fact that she no longer asks about her. I understand that the relationship between the child and her father, along with the other important people in her life, is excellent, as I have just indicated. I have no information about the child’s relationship with her mother, because the mother has not participated in a meaningful way in the process.

27. I indicate again that I did have the benefit of knowing that there was an issues assessment report that might have provided some light in this area, but, having regard to the fact that it is not sworn evidence, I propose to ignore it.  I have also taken into account in this case that the father has been willing to participate in the process under which the child would have a relationship with her mother. 

28. In the August orders of Senior Registrar FitzGibbon, a provision was made for the parties to start the contact occurring at a contact centre in S.  The father says in his evidence that he filled in all of the forms but heard nothing back from the contact centre, indicating that the mother had not complied, so there was no point in that process being continued any further.  I am satisfied therefore that he has been a willing and able parent in endeavouring to facilitate and encourage the relationship between the child and her mother. 

29. I have no idea what impact the child having no contact with her mother will have, but that is a fact of life that I think the mother will have to live with.  That does not mean that the door is closed on the mother, but, if she does bring an application in the future, she will have to satisfy a court that she proposes to have a meaningful relationship with the child in the future, rather than doing things the way she wants.

30. I am satisfied that the mother has little capacity to care for this child, in any event.  I draw that conclusion from not only the fact that she has failed to participate in the process but that there has been significant involvement in the life of the mother through the Department of Human Services.  That does not augur well for a finding about her capacity to provide for the emotional and intellectual needs of the child.  As I have already indicated, I have no concerns about the father.

31. One of the significant issues in section (6)CC that I am obliged to consider is the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.  I again commend the father.  I can say little of any complimentary nature in relation to the mother.  It is quite clear that she wants to do things her way and will not countenance anything that anyone else says about what is in the best interests of the child.  I am not told of any family violence or family violence orders in this case, and, on that basis, I propose to not take those matters into account.

32. Section 60CC also requires me, wherever possible, to make an order which will lead to the conclusion of the proceedings and prevent them being instituted in the future.  I cannot prevent the mother making an application to spend some time with the child in the future, but, as I have already indicated, it would be very difficult for her to establish to the court's satisfaction, at least at this stage, that she really means what she says. 

33. In my view, this is a case where the child needs to know that her life is going to be settled in her father's household, and, in those circumstances, it is preferable for the order to be made that will least likely lead to further proceedings in relation to the child. 

34. Subsection (4) of section 60CC requires me to look at what has happened and how parties have either contributed to or facilitated the various relationships with the other parent, or failed to take advantage of the various opportunities open to them.  I am quite satisfied, on the evidence, that the father has done everything within his power to make the relationship work and that the mother has done everything within her power to thwart that arrangement. 

35. I am satisfied that the mother has failed to facilitate the relationship between father and child by overholding the child.  I am satisfied that she has failed to spend time with and communicate with the child in any meaningful way, as was endeavoured to be established by virtue of the orders in August 2008.  In those circumstances, I am satisfied that it is in the best interests of the child to make the orders that I now propose to order.

I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  24 February 2009