Burford and Burford

[2013] FamCA 895

FAMILY COURT OF AUSTRALIA

BURFORD & BURFORD [2013] FamCA 895

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time – where the applicant father has discontinued his Initiating Application – where the matter proceeded undefended – best interests – orders for the children to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) s 60CC; 69ZW

APPLICANT: Mr Burford

RESPONDENT: Ms Burford

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 439 of 2011

DATE DELIVERED: 11 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Ms Cocks

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the children B born … 2007, C born … 2008, D born … 2010 and E born … 2011.

3. That the said children live with the mother.

4. That there be no order for the father to spend time with the said children.

5. That the father be restrained and injunctions be granted restraining him from:

   a.   Abusing, harassing, assaulting, threatening or intimidating the mother;

   b.   Approaching or remaining within 200 metres of the mother’s place of residence or the F School or any other school or kindergarten or childcare facility at which the said children may be attending from time to time.

6. That the order for the appointment of the Independent Children’s Lawyer be discharged.

7. That all Applications and Responses otherwise be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burford & Burford 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 ADELAIDE

FILE NUMBER: ADC 439 of 2011

Mr Burford

Applicant

And

Ms Burford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns the parenting orders that should be made in relation to four children:  B born in 2007, now aged 6; C born in 2008, now aged five; D born in 2010, now aged three and E born in 2011, now aged two.

2. The ongoing litigation has been before what was then the Federal Magistrates Court, and now the Family Court of Australia for some years.  The matter is listed before me for a trial for 10 days to commence this morning, however that has been overtaken by various factors, most significant of which are the Magellan Family Report of 3 October 2013 and the Notice of Discontinuance filed by the father on 17 October 2013.  Counsel for the mother and counsel for the Independent Children’s Lawyer appear before me this morning and have asked me to make final orders in relation to this matter.

3. It would appear that the Amended Response to the Initiating Application has not been served upon the father.  There is no Affidavit of Service.  I raised with counsel my concerns about the father being on notice and the issue of procedural fairness.  I have received the submissions from both counsel that the matter should proceed.  Taking into account the history of this matter, and the factors that have developed over the years during the proceedings, I am satisfied that procedural fairness has been provided to the father, and that he was clearly on notice of the final orders that the mother was seeking at the time he filed his Notice of Discontinuance. 

4. This will be clearly seen from the history of the matter in which the father’s time with the children was for a period supervised.  There were then serious allegations made in relation to the behaviour of the father in regards to alleged sexual abuse of the two older children, B and C.  The father’s time has been suspended. 

5. It is clear from the Magellan Family Report of Dr G, dated 3 October 2013 that the father was on notice that the mother was seeking orders in relation to all four children, and that she was seeking orders which provided that they live with her, that they spend no time with him, and that there be protective injunctions. 

6. Therefore I consider it appropriate to proceed to hear the matter today by way of final hearing, taking into account the behaviour of the father at the interview with the Family Consultant and the knowledge which the father had prior to filing the Notice of Discontinuance. 

7. It is there therefore necessary for me to consider what orders should be made which would be in the best interests of the children.  The complex provisions of Part VII of the Family Law Act1975 (Cth) require me to consider whether the parents should have equal shared parenting, and whether those orders should be made which would then require a consideration of the parties having equal time, or the father having substantial or significant time with the children.

8. The history of this matter is clearly set out in the documents to which the counsel for the mother and counsel for the Independent Children’s Lawyer have referred me.  Clearly the presumption of equal shared parental responsibility is not one that should apply in this case.  Clearly the significant factors rebut that presumption.  The parents’ difficult relationship even prior to their separation, involving violence and other difficulties which fall within the definition of family violence clearly make it inappropriate for the mother to be required to consult the father in any way concerning the discharge of her parental responsibilities. 

9. Taking into account the trial affidavit filed on 21 October 2013, the uncontested material in the Magellan Family Report, and the earlier report, the presumption has clearly been rebutted.  It is in the best interests of the children that the mother have sole parental responsibility for them and not be required in any way to consult or obtain the permission of the father.

10. The Court needs to consider the factors in section 60CC, the primary considerations being the need to protect the children, and to consider the benefit of the children having a meaningful relationship with each of the children’s parents.  The material in the most recent Family Consultant’s report and also the earlier Family Consultant’s report indicate that the father has significant mental health and drug abuse problems which were having a deleterious effect upon the mother and the children, the two older children in particular.

11. The allegations have also been made that the father has been responsible for sexually abusing the two older children.  It is not necessary for me to make a finding in that regard, but I take into account when assessing the factors which require me to consider what is in the best interests of the children as a paramount consideration, that those allegations have been made, and that independent reports such as the section 69ZW Families SA report indicated that, following upon that assessment, it was highly likely that what the children were saying was correct.  This, coupled with the father’s mental health and drug abuse issues, clearly demonstrates that it is not in the best interests of the children that they have an ongoing relationship with the father.

12. There are other factors to be taken into account under section 60CC(3).  In this case the views of the children would not carry considerable weight, taking into account their ages, but I take into account and note that the children, particularly the eldest two who were interviewed, expressed strong views which indicated that they did not wish to maintain their relationship with their father. 

13. When considering the nature of the relationship with the children with each of the parents and other persons, I rely heavily upon the Family Consultant’s report which indicates that the mother has a strong, supportive beneficial relationship with the children, and that the father does not.

14. Similarly, the provisions that are significant in this matter are the attitude to the parental role, and the capacity of each of the parents to provide for the needs of the children. 

15. The other factors that are of significance are the family violence which has taken place, which I have already referred to in relation to the primary considerations under section 60CC. 

16. The capacity and attitude of the parties, to their role as parents and their capacity to carry out their role as parents clearly indicate that the mother should be the person with sole parental responsibility and that the children should live with her.

17. The most recent Family Consultant’s report sets out the appropriate caring role of the mother and draws attention to the difficulties the father has had, and in particular the psychological and drug abuse issues to which the counsel for the Independent Children’s Lawyer has referred me to (paragraph 29). 

18. I have taken into account those matters, which clearly indicates that the mother has the capacity and an appropriate attitude to provide for the children’s best interests.

19. The recommendations of Dr G’s report said that all four children should live with the mother, she should have sole parental responsibility and that children not spend time with Mr Burford, the father. 

20. The recommendation was also that the mother continue to facilitate therapeutic intervention for the children as she sees fit and is advised, and that there be injunctions restraining the father from approaching any of the children at their various child care facilities and schools, or from approaching the mother at any time or place. 

21. I have taken those recommendations into account, and have considered the orders which are sought by the mother and are supported by the Independent Children’s Lawyer.

22. In this matter therefore I take into account that the best interests of the children are the paramount consideration.  Taking into the account all of the factors in section 60CC, but in particular those to which I have actually referred this morning, I propose to make the orders sought by the mother, save and except that I do not consider the paragraph requiring the mother to continue therapeutic intervention as she sees fit is a necessary order.  The mother has sole parental responsibility and it is conceded that she is taking appropriate advice and obtaining appropriate assistance for the children.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 November 2013.

Associate: 

Date:  19 November 2013