CAFARELLA & ROGERS

[2014] FamCA 962

FAMILY COURT OF AUSTRALIA

CAFARELLA & ROGERS [2014] FamCA 962

FAMILY LAW – CHILDREN – With whom a child lives and spends time – where the applicant has been previously jailed for a violent offence – where the subject child otherwise has a good relationship with the paternal family – where the father has spent limited time with the child since separation – where the mother has demonstrated a willingness to foster a relationship between the child and father – where the father has been consistently absent from the child’s life for a significant period of time.

FAMILY LAW – PRACTICE & PROCEDURE – UNDEFENDED HEARING – where the applicant has not participated in any meaningful way since the end of 2013 – where the applicant has not filed any substantive document since commencing proceedings in 2010 – where the applicant did not appear at the hearing – where the hearing proceeded on an undefended basis.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Mr Cafarella

RESPONDENT: Ms Rogers

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 11241 of 2010

DATE DELIVERED: 3 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 November 2014

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Whitehead Payne Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED ON A FINAL BASIS

1. The child, C, born … 2007 live with the mother.

2. The mother have sole parental responsibility for all major long term issues in relation to the child.

3. The child spend time with the father in the manner and at the time as agreed between the parents in writing.

4. The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cafarella & Rogers 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 BRISBANE

FILE NUMBER: BRC 11241 of 2010

Mr Cafarella

Applicant

And

Ms Rogers

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern the child C (“the child”), born in 2007.  He is now seven years and 10 months of age.  His parents commenced a relationship in about 2005, when his father was 19 years of age and his mother, 15 years of age.  They separated on a final basis in about March 2008 when the child was about one year of age.  The child last saw his father in February 2014, whilst he was visiting his paternal grandparents for his (the child’s) birthday. 

2. After the separation of his parents, the child spent time with his father almost weekly, save for a period of about six weeks when he did not see the child because a family member had travelled overseas.  The time the child spent with his father then was generally overnight, on weekends, which coincided with his mother’s work roster.

3. On the material before the Court, the accounts of both parties indicate that at that time there was a reasonable relationship between them.

4. The father has another child from a relationship commenced after the separation from C’s mother.  That child is Y, who was born in late 2010.  She lives with her mother and spends time with C at the paternal grandparent’s home.

5. The time the father spent with the C appears, on the evidence, to have decreased after he commenced his relationship with Y’s mother.  Whilst the father indicates, in his sworn material, that this occurred because the mother was unhappy with his relationship with Y’s mother, this issue is contested by the mother. 

6. It is clear that the mother has supported C in spending time with Y by facilitating his time with his paternal grandparents – thus, her actions seem, to me at least, to be less indicative of a difficulty in supporting the child’s relationship with the father than the father would perhaps have on his interpretation of matters factually in dispute between the parties.

7. There was an incident on 14 February 2010, according to the mother.  The father says this was 15 February 2010 but in any event, after this event, the mother told the father she was no longer willing to facilitate overnight time with the child.

8. The father says he rarely spent time with the child after that:  again, he places responsibility for that, on the mother, asserting she refused to allow him to see the child if he remained in a relationship with his then partner, Y’s mother.

9. The father’s assertion, in his affidavit material (albeit material that was filed in late 2010) seems to be to the effect that the mother refused to facilitate a meaningful relationship between himself and the child.

10. The father commenced proceedings by filing an Initiating Application on 1 December 2010.  That application was supported by an affidavit filed the same day.  Save for that document, the father has not filed any other evidence or affidavit material in the Court.

11. He was represented by legal representatives until 28 October 2013, at which time a Notice of Ceasing to Act was filed.  That document contains the address for the father of P Street, Town G - that is the only address that the Court has for the father and the only address either the mother, via her solicitors, or the Independent Children’s Lawyer has had available to them.

12. The proceedings have been listed for the determination by the Court of this matter on a final basis on an undefended basis.  It is clear, as I have said, that the father commenced proceedings in the Federal Magistrates Court, as it then was, in December 2010.  The application contained his hope for orders for equal shared parental responsibility and that the child spend equal time with each of his parents on a week about basis.

13. The parties entered into Consent Orders on 14 March 2011.  These Orders provided that the child continue to live with his mother and spend time with the father, in a progressive sense, leading to time each alternate weekend with the father, with one of those weekend’s nights to be supervised by the paternal grandparents.

14. The Orders also provided for the mother to require the father to undertake two random drug tests to test for the presence or absence of illicit substances.

15. Howard FM, as his Honour then was, appointed an Independent Children’s Lawyer - Mr Grainger appears before me today. 

16. The matter returned on 23 June 2011, at which time Howard FM ordered that the parents participate in a Parenting Orders Program.  He ordered the production of a Family Report and transferred the matter to this Court.

17. When the matter returned on 21 September 2011, the proceedings were adjourned awaiting the outcome of the father’s sentencing in then current criminal proceedings in which he was involved.

18. On 27 June 2011, it was noted that the father had been incarcerated for three years and was eligible for parole, at the earliest, on 13 January 2013.

19. On 16 October 2013, Orders were made, of a procedural nature, designed to assist and facilitate the preparation of the matter for trial.  That Order bears a Notation that the father had not contacted his solicitors since before his release from prison and that the child was then spending, what might be termed as regular time, with the father at the paternal grandparent’s home, under their supervision.

20. At that time, a Notation was also made to the effect that the matter was anticipated to be undefended.

21. As I have already said, the father was legally represented in the proceedings until 28 October 2013, at which point his then solicitors filed a Notice of Ceasing to Act.

22. On 16 April 2014, the matter returned for procedural directions in relation to the preparation for trial.  The father did not appear on that occasion.

23. On 4 June 2014, the matter was again before the Court.  Again the father did not appear and the matter was listed for an undefended hearing on 23 June 2014 but was adjourned, by consent, and relisted to 3 November 2014. 

24. There was a further procedural hearing on 22 October 2014 and again the father did not appear on that occasion. 

25. It is clear that on 4 June 2014, the Court forwarded, to the father, directed to the address of P Street, a copy of the Orders made that day.

26. On 20 June 2014, the Court forwarded correspondence to the father at the same address, advising him of a new return date for the listing and hearing of the matter of today, 3 November 2014.

27. I have been made aware that each of these pieces of correspondence have been returned to the Court marked “Not at this address.”

28. As noted earlier, the father has not filed any substantive document in the proceeding since filing his Initiating Application in December 2010.

29. I accept the information conveyed by Ms Byrne, who appears on behalf of the Respondent mother today, that the paternal grandparents were aware of the fact that this matter was listed for determination today.

30. It is also clear, from the contents of the affidavit of the mother filed by leave today, that during a conversation between the mother and the paternal grandparents, the paternal grandparents told the mother that the father was not prepared to spend time with the child at a Contact Centre.

31. It is also clear from the affidavit filed 3 November 2014, that the father contacted the mother, by telephone, shortly after he was released from jail, in about 19 September of this year, requesting to speak with the child.

32. I consider it highly likely, given that the paternal grandparents were aware of today’s date and that they have had communication with the father to the extent that he told them he was not prepared to spend time with the child at a Contact Centre, (which is one of the orders the mother sought), that it is more likely than not that the father was made aware of the existence of the mother’s application, the form of the orders sought and the fact that the matter was listed before the Court today.

33. There is no evidence to suggest that the father has undertaken any steps whatsoever, since his release from prison, to obtain information about the child or to obtain information about the proceedings in relation to the child.

34. In addition, I note that the contents of correspondence, (Exhibit 1 in these proceedings), from the mother’s solicitor, dated 22 May 2014, directed to the father at P Street, enclosing a copy of the Amended Response and her affidavit, both filed 21 May 2014.  Contained within those documents is information of the orders sought by the mother: namely that the child live with her, she have sole parental responsibility for major long-term issues in relation to him and that he spend time with the father, on a supervised basis, at a Contact Centre, with the father to bear the costs of the same.

35. In all of the circumstances, it is clear from a perusal of a chronology of the matter that the father has not participated in any meaningful way in the proceedings since no later than the end of 2013 - and some might say since commencing the proceedings at the end of 2010 - regard should be had to the following comments made by Kirby J in  Allesch & Maunz (2000) 203 CLR 172, paragraph 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.

36. In this case, I am persuaded that the father has been provided with sufficient opportunity to participate in the proceedings.  I am, therefore, persuaded to proceed to hear and determine the matter on what I will term as an undefended basis.

37. I note that the Independent Children’s Lawyer does not express any opposition to orders being made on a final basis in the terms advanced by the mother.

38. As outlined in her Amended Response to Initiating Application filed on 21 May 2014, the mother seeks an order for sole parental responsibility for the child; that he live with her and spend time with the father on a supervised basis at a Contact Centre at such times as may be facilitated by that Centre, with the father to bear the costs of such supervision.

39. The mother’s concern - or at least one of them, and a significant one - is the impact upon the child of his father coming and going into and out of his life and being inconsistent in his attempts to communicate and/or spend time with the child.

40. She also raises significant concerns about the father’s behaviour, particularly given his incarceration following an act of violence perpetrated on an adult person.

41. The mother’s proposal for the child and the orders she seeks in relation to him occur in circumstances in which she contends for and relies upon the father’s previously exhibited violent behaviour. 

42. She also relies, insofar as it relates particularly to her and her interactions with the father, upon an event which followed  not long after the parties’ separation: she gives evidence of the father attending at her property under the influence of alcohol, engaging in abusive and threatening behaviour, yelling and banging on her door, screaming obscenities and making threats toward her, including making comments as follows:

    You fucking bitch.  I’m going to kill you.  You called – you called the cops.  I’m going to kill someone.  This is the last time you will ever see me.

43. Following the mother’s engagement of them, the police attended at this event.  It is also apparent from the material filed in the Court that, at least for a period of time, there was in force an Apprehended Violence Order against the father, with the mother as the aggrieved spouse, or party. 

44. Further, it is clear from the chronology filed on behalf of the Independent Children’s Lawyer, the contents of which I accept as accurately recounting the events relevant to this matter, that the father was incarcerated, on 20 June 2012, for three years for offences of common assault, going armed to cause fear, possession of dangerous drugs, possession of drug implements, possession of tainted property and unlawfully wounding another person.

45. Following Howard FM’s Orders, referred to earlier, a Family Report was produced by Ms K on 19 June 2011.  During the interviews for such report, the father admitted to Ms K, that he had, at that time, a criminal history of maybe 10 or 12 charges for different things, a couple of possession of dangerous drugs, possession of a knife and obstructing the Police.

46. He appeared to assert to Ms K that such offences arose out of him being in the wrong place at the wrong time on occasions.  He also admitted to Ms K to drinking to excess and consuming illicit substances during the relationship with the mother, but denied having maintained this after separation.

47. He asserted to Ms K that he had learned increased self-responsibility and to stay away from people who act poorly.  Such assertions are, of course, contradicted by the events which followed Ms K’s involvement and preparation of report - as outlined in the chronology filed on behalf of the Independent Children’s Lawyer.

48. It is clear that since the completion of Ms K’s report, the father has been incarcerated on a number of occasions, including, as a consequence of a violation of a parole condition - a failure to produce a clean urine sample for a drug test - on about 29 April 2013. 

49. Further, the father’s incarceration for wounding involved him stabbing a female in the back.  It is also clear he has been returned to prison on a number of occasions for breaches of parole.

50. At the time she swore her affidavit in May 2014, the mother believed the father was incarcerated and he had been since about February of this year - as a consequence of drink driving.

51. At that time, the mother deposed to not having any further details about the father’s incarcerations, as she had previously relied upon his parents, the paternal grandparents, as a source of information.  It appears from the material that, at least at that point in time, they, too, had ceased interaction and contact with him.

52. It is clear that the mother has facilitated and supported the child in maintaining a strong relationship with his paternal grandparents.  This appears to have occurred both immediately after separation and on a continuing basis, including since the father’s most recent criminal proceedings have concluded.

53. At one point in time the paternal grandparents were prepared to supervise the child’s time with his father.  However, more recently, they have advised the mother they do not wish to supervise such time. 

54. The material establishes the child could only be primarily attached to his mother.  There is no particular evidence about his views but, given his age and the father’s absence from his life on a regular and consistent basis, any such expression or view or wish would, in any event, be unlikely to be determinative of whether orders proposed by the mother are in his best interests.

55. It is, I think, clearly established that the child’s father has showed little consistent interest in maintaining a consistent and regular relationship or communication with him.  This appears to have been the case for most of the time since the parties’ separation.  It is likely the father really spent most of the time that he has, in fact, spent with his son, only when such time has been facilitated by the paternal grandparents and with the support of the child’s mother.

56. It is clear, as I said, that the mother maintains a good relationship with the paternal grandparents.  It is also clear that she has supported the child in knowing, developing and maintaining knowledge of, and a relationship with, the paternal side of his family.

57. I accept there is an excellent relationship in existence between the mother and the paternal grandparents.  I accept that all have acted together to arrange the child’s time to include opportunities for him to spend time with his half-sister, Y.

58. It is also clear on the evidence that the mother has been solely responsible for providing all financial support for the child.  I accept the evidence before me that the father has not paid any child support or made any financial contribution of any significance to the child’s support. 

59. The fact that the child’s mother has previously facilitated his time with the paternal grandparents, and previously with the Applicant, is, I consider, a clear demonstration of her capacity and willingness to not only support him in his relationship with members of the extended family, but also of her capacity to make decisions of a nature beneficial to him.

60. I accept on the evidence the paternal grandparents no longer wish to supervise the child’s time with the father.  I consider this is highly likely to be because of the abusive manner in which the paternal grandmother reported having seen him interact and speak with the child.

61. It is, I think, a credit to the mother that she has provided her mother with the opportunity to spend time with the child.  It is clear the child enjoys the opportunity to spend time with members of his extended maternal and paternal families who appear, on the evidence, to be regularly and consistently involved with him and his care, and to be regularly and consistently involved in his life.

62. That the mother has facilitated all of these members of his extended family spending time with him is a credit to her and, as I have said, a clear demonstration of her attitude to and capacity and discharge the responsibilities of parenthood. 

63. It is established that, given the father’s absence from the child’s life on a consistent basis, the mother has been required to make decisions about the child’s health, about attending to or addressing the need for investigations to determine whether he has ADHD and/or autism, or suffers from any other particular medical or other condition.

64. I accept on the evidence that she has proactively taken the steps necessary to have him attend on medical practitioners, as required.  I consider, given her support of his relationships with extended family, that it is highly likely that she would do everything necessary to support the child as he grows and matures.

1. I accept on the evidence that the father has failed to demonstrate a consistent interest in the child over no less than the last two years.  I accept he has not been present in the child’s life on a consistent, stable, routine or regular basis during at least that period of time.  I accept the mother’s evidence about the father’s behaviour, and as I have said, rely upon and accept as accurate the contents of the chronology prepared for the Court’s assistance by the Independent Children’s Lawyer.

2. The father’s incarceration for offences of violence persuades me that the presumption of equal shared parental responsibility does not apply.  If I am wrong in reaching that conclusion, I am well persuaded, given the father’s absence from the child’s life on a regular basis, the evidence before me, as to the father’s attitude towards the child and the mother’s concerns about interacting with him given his threats to harm her (to which I have already referred) that it would not be in the child’ best interests for his parents to have equal shared parental responsibility for major long-term issues relating to him.

3. I am satisfied that the order proposed by the mother is in the child’s best interests.  It is without doubt that his best interests will be served by providing that he continue to live primarily with the mother.  Whilst the mother, sought orders that the father spend time with the child, on a supervised basis at a Contact Centre, there is evidence in the mother’s most recent affidavit filed by leave today, (as expressed to the paternal grandparents), that the father is not prepared to spend time with the child at a Contact Centre.

4. In the circumstances, it seems to me that an appropriate form of order, and one that is in the child’s best interests, is simply to provide that the child spend time with the father in a manner, and at a time, as agreed between his parents.  Should the father be in a position over time to demonstrate a more consistent approach to interaction and communication with the child, this will give the mother her the opportunity to make decisions, as she has previously, in relation to the child spending time and communicating with the father.  It will also ensure that any time or communication occur in a manner in which the child’s safety is assured, and that he is not placed in a position of having sporadic communication and interaction with the parent whose comings and goings into and from his life, are more likely than not to cause him emotional disruption and confusion.

5. I am also satisfied that it is in the child’s best interests for the mother to have sole parental responsibility in relation to him.  I have arrived at this decision following a consideration of the father’s failure to be involved in the child’s life in a consistent and regular basis - his absence from the child’s life, either because of his incarceration or for other unknown reasons.  I am not satisfied that it is likely, given the father’s history of violence, including serious threats to harm the mother, that the child’s parents could make a decision about major long-term issues and his best interests jointly as they would be required to do, if an order for equal shared parental responsibility was made.

6. I am well satisfied, because of her consistent, stable parenting of the child, and the manner in which she has acted to demonstrate a support of his engagement with members of his extended family and to address issues which have arisen as he has grown older, that the mother is clearly more than capable of making decisions about major long-term issues for him.  It is in his best interests, clearly, that she be able to do so freely, and without the potential for hindrance that an absence of an order for sole parental responsibility might cause into the future, particularly having regard to the investigations she has instigated in relation to the child’s functioning, and the necessity for any particular support which might flow from the consequences and conclusions of those investigations.

7. In all the circumstances, then, and for the reasons I have just expressed, I am persuaded that the orders I make are in the child’s best interests and they will issue. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 3 November 2014.

Associate:                 

Date:    3 November 2014