CARDEN & CARDEN
[2012] FMCAfam 1463
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARDEN & CARDEN | [2012] FMCAfam 1463 |
| FAMILY LAW – Children – parenting – parenting orders – parental responsibility – sole parental responsibility – best interests of the children – where Respondent did not attend court – alcohol issues – mental health issues – family violence – need to protect the child from physical or psychological harm – where court satisfied that the children should spend no time with the Father. PASSPORT – Australian passport – sole responsibility to obtain passports for the children. |
| Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61DA, 65DAA Crimes (Domestic and Personal Violence) Act 2005 (NSW), s.16 Federal Magistrates Court Rules 2001 rr.13.03C, 16.05 |
| In the marriage of JG and BG (1994) 18 Fam LR 255; FLC 92-515 Reagan & Nevin [2012] FMCAfam 1431 |
| Applicant: | MS CARDEN |
| Respondent: | MR CARDEN |
| File Number: | SYC 2088 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Mokhtar |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor |
ORDERS
The Applicant Mother is to have sole parental responsibility for the children [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2004.
The children [X] born [in] 2000, [Y] born [in] 2001 and [Z] born [in] 2004 are to live with the Applicant Mother.
The children are to spend no time with the Respondent Father.
The Applicant Mother is to have the sole responsibility for giving consent and making arrangements for the issue of the children’s passports.
The Applicant’s solicitor must forward a sealed copy of these Orders to the Respondent by ordinary pre-paid post at his last-known address within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Carden & Carden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2088 of 2012
| MS CARDEN |
Applicant
And
| MR CARDEN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the Mother of three children, [X], aged twelve, [Y] aged eleven, and [Z], aged eight. The children all live with her. The Father has not participated in the proceedings.
Orders Sought
The Applicant Mother seeks orders that:
a)she should have sole parental responsibility for the children;
b)the children should live with her;
c)the children should spend no time with the Father or, in the alternative, the children should only spend time with him in accordance with recommendations made by a psychiatrist after reviewing the Father’s mentals health; and
d)he Mother should have the sole responsibility for giving consent and making arrangements for the issue of passports for the children
Background
The parties commenced living together in late 1998 and were married [in] 1999. They separated in May 2010 and were divorced on 30th August 2012.
There are three children of the marriage:
a)[X] was born [in] 2000;
b)[Y] was born [in] 2001; and
c)[Z] was born [in] 2004.
The children all live with their mother and have done so since the parties separated.
The Mother commenced proceedings by filing an Application and affidavit in support on 20th September 2012. The Application was returnable on 5th November 2012.
On the return date, the mother attended Court with her solicitor,
Mr Mokhtar, who advised the Court that service had not been effected on the Father. Orders were made dispensing with personal service on the father on condition that sealed copies of the Application and supporting affidavit were forwarded by post to the Father’s sister,
Ms P. The Application was adjourned to 4th December 2012 for further mention.
The Applicant and her solicitor attended Court on 4th December but the Respondent did not. On being satisfied as to service, the Court listed the Application for an undefended hearing on 17th December 2012. The Respondent was to be advised in writing that if he did not attend Court on the next occasion then Orders may be made in his absence.
The Applicant and her solicitor attended Court on Monday 17th December but the Respondent did not. As the Respondent had again failed to appear, the hearing proceeded under the provisions of paragraph (1)(d) of Rule 13.03C.
Evidence and Submission
The Applicant relied on her affidavit sworn on 19th September 2012 and gave oral evidence, affirming the truth of her affidavit and advising that there had been no change to the circumstances since the affidavit was sworn.
It is the Applicant’s evidence that after she became pregnant with the parties’ first child, [X], in mid-1999, the Respondent’s moods changed and he became anxious and easily angered.[1] He became very stressed and agitated during the child’s birth.
[1] Affidavit of Ms Carden 19.9.2012 at paragraph [14]
The Applicant deposed that about ten to fourteen days after [X] was born in [omitted] 2000, the Respondent, previously a non-drinker, commenced drinking alcohol on a regular basis.
The Respondent’s drinking continued on a regular basis until, after the parties moved from [omitted], where they had been living, to [K] in about July 2002. Whilst the parties were living in [K], the Respondent was charged by the Police with driving whilst disqualified. After that incident, the Respondent began drinking heavily:
He would drink for three to four days at a time. He would lock himself in a room, and not go to work.[2]
[2] Ibid at [26]
The Applicant deposed that in about October 2002, when the Respondent was drunk, he pinned her down on a bed, placed his hand on her throat and said words to the effect of:
“I will fucking kill you, I will end your life. Can you feel the power?”.[3]
[3] Ibid at [30]
The Applicant also stated that the Respondent threw her out of the house and, when she returned a few minutes later, threw a bundle of money at her and told her to leave. The Applicant locked herself in a room. The next day, when she spoke to the Respondent about the incident, he denied that it had happened.
The Applicant further deposed in her affidavit that at the time the parties’ third child was born the Respondent could not be found. He turned up two days later, saying that he had been with a friend. The Applicant stated that:
He took me home from the hospital, and then left for 10 days without telling me where he was going.[4]
[4] Affidavit of Ms Carden at [32]
The Applicant’s affidavit is replete with accounts of threats by the Respondent to kill her and the children and descriptions of the Respondent’s frequent drinking binges. The situation deteriorated in late 2008. The Respondent smashed his car into the brick wall of the parties’ home in [omitted] on 9th November whilst he was drunk. On 14th November the publican from the [omitted] Hotel telephoned her to advise that the Respondent had been getting fights at the hotel and driving recklessly whilst drunk.
On 4th December 2008 the Respondent was charged with driving with the High Range concentration of alcohol in his bloodstream. He provided a psychological assessment to the Court and was required to attend counselling. However, he did not attend the counselling and continued to drink.
The Respondent’s drinking continued. In April 2009 he was hospitalised after becoming very drunk and emotionally unstable at the Applicant’s brother’s wedding and, after he passed out at the hotel where the family was staying, he was taken to hospital. At hospital, the Respondent said that he would undertake a Drug and Alcohol at [omitted] Hospital. However, the Respondent discharged himself from that program.
The Applicant left him and took the children to live in a granny flat at her parents’ home. Eventually, after entreaties by the Respondent and promises that he would undergo rehabilitation, the Applicant returned to live with the Respondent.
The Respondent’s drinking continued on a daily basis and there were a number of incidents between 8th and 23rd April 2010. After an incident on 23rd April when the Respondent punched the leadlight panel out of the back door of the house, the Applicant again left with the children.
The Applicant deposed that she went back to see the Respondent on 2nd May 2010 to check on his welfare. She stated:
Mr Carden had not showered, he was still wearing the same clothes from the week before, food (was) everywhere, and he had alcohol and empty bottles everywhere in …his room and in the house.[5]
[5] Affidavit of Ms Carden at [49]
The Applicant described how she had to stop the Respondent from driving his car with the children in it, because he was very drunk and a disqualified driver. She took the car key from the ignition and ran away.
Over the month of May 2010, the Respondent kept drinking heavily and displayed signs of mental illness. The Applicant described how on 17th May the Respondent arrived at the home where she was living and demanded to see the children:
He looked like a homeless person, unshaven and very smelly. He was delusional. He knelt down on the floor and told me words to the following effect: “You are a goddess, you have the power to control men…I am a Spartan warrior, I will obey your every command.”
When the children commented on his beard, he told them “I am Jesus Christ, the messenger”.[6]
[6] Ibid at [54]
Later that month, the Respondent again arrived at the Applicant’s home at about 10:00pm, demanding to see the children. He threatened to kill her and he grabbed both of her hands, pushed them back and crushed them. The two older children pleaded with him to stop. The Respondent left, but he returned about midnight. The Applicant told him that she and the children were leaving. She put the children in her car and as she was reversing out of the driveway:
Mr Carden grabbed a large rock from the garden and was bashing on the rear window where the children were sitting. The children were hysterical and screaming.[7]
[7] Affidavit of Ms Carden at [56]
The Applicant called the Police, who commenced Apprehended Violence proceedings against the respondent. An Apprehended Domestic Violence Order was made by the Local Court of NSW at [K] on a final basis on 22nd December 2010, naming the Applicant and the three children as protected persons.
The Applicant deposed that the last time that the children spent alone with their father was on 4th July 2010. The children have visited their father on a number of occasions for about ten minutes at a time accompanied by the Applicant.
The Applicant deposed that she had to sell the former matrimonial home because of financial pressures:
I was behind on the mortgage, school fees, al of my household bills, I struggled to put food on the table. Mr Carden starved me out financially, whilst he did a redraw on the mortgage…Eventually, I had to accept an offer as it was the week that the bank threatened to take the house back and I was so desperate to have him sign the contract…I decided that I would go to [omitted] with a friend of his and bring the children, who begged him to sign the contract. Mr B, Mr Carden’s close friend, was there and he asked Mr Carden to please sign the contract for the kids. Mr Carden said: “No I’m not signing, I want them out on the street”. Mr B told Mr Carden to calm down and not speak like that in front of the children. Later, [Y] asked Mr Carden to sign the papers and he threatened her, he said words to the following effect: “Are you fucking to tell me what to do, I will cut your fucking head off”. [Y] started crying and I left with the children.[8]
[8] Ibid at [61]
The Applicant deposed that in or around August 2011 she instructed her solicitors to write to the Respondent in an attempt to resume the children’s contact with him. She went on to state:
In the letter we requested that Mr Carden completes Drug and Alcohol programs, so that the children could feel safe spending time with their father. We did not receive a response to this letter.[9]
[9] Affidavit of Ms Carden at [65]
The Respondent has not filed a Response or any affidavits. He has not attended court on any occasion.
The Law to be Applied
In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child or children concerned as the paramount consideration.
The Court determines what is in a child’s best interests by considering the matters set out in subsection (2) and (3) of s.60CC of the Act.
The primary considerations set out in subsection 60CC(2) 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.
The term “family violence” is defined by subsection 4AB(1) of the Act:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
It is noteworthy that the recently-added subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
There are additional considerations set out in subsection 60CC(3), which include such matters as:
a)The wishes of the child;
b)The nature of the child’s relationship with each parent and other persons including grandparents;
c)The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues and other matters;
d)The extent to which each of the parents has fulfilled or failed to fulfil the obligation to maintain the child;
e)Any family violence involving the child or a member of the child’s family;
f)Whether any family violence order applies, or has applied, to the child or a member of the child’s family;
g)And various matters.
The Court is required by s.61DA of the Act to apply a presumption that it is in the best interests of the child or the children for their parents to have equal shared parental responsibility for the child or children. However, the presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(4)).
If the presumption of equal shared parental responsibility applies, the Court must then consider the matters in s.65DAA, whether it is both in the child’s best interests and reasonably practicable for the child to spend:
a)equal time with each parent (s.65DAA(1)); or, if the Court does not so order;
b)substantial and significant time with each parent (s.65DAA(2)).
All of the above matters have been considered.
The Applicant is seeking an order from the Court permitting her to have sole responsibility to apply for passports for the children. Section 11 of the Australian Passports Act 2005 relevantly provides:
(1)The Minister must not issue an Australian passport to a child unless:
(a)each person who has parental responsibility for the child consents to the child travelling internationally; or
(b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally…
(5)For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child’s parent (including a person who is presumed to be the child’s parent because of a presumption (other than in section 69Q) in Subdivision D of Division 12 of Part VII of the Family Law Act 1975); and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975; or
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long-term or day-to-day care, welfare and development; or
(c) [repealed]
(d)the person is entitled to guardianship or custody of, or access to, the child under a law of the Commonwealth, a State or a Territory.
Conclusions
The best interests of the three children are the paramount consideration.
When examining the primary considerations under subsection 60CC(2),the Court considers the matters in paragraph (a):
the benefit to the child of having a meaningful relationship with both of the child’s parents…
In this case, on the evidence before the Court, it is difficult to see that there is any great benefit to these three children in having a meaningful relationship with their father, other than to know that he is their father. The long history of alcohol abuse and family violence, including threats directed to the children themselves, tends to suggest that the children should spend little or no time with their father unless he takes action to rehabilitate himself. The evidence is that the father is an alcoholic whose behaviour when drunk is violent, abusive and irresponsible.
In any event, the Court is required by subsection 60CC(2A) to give greater weight to the consideration in paragraph (b) of subsection 60CC(2):
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother’s affidavit and oral evidence is replete with examples of abuse, neglect and family violence, including violence inflicted on her and threats of violence directed to one or more of the children. Family violence involving a child or a member of the child’s family is also an additional consideration under s.60CC(3)(j).
Another additional consideration is whether a family violence order applies, or has applied, to the child or a member of the child’s family, and, if so, what are the relevant inferences that can be drawn from the order (see s.60CC(3)(k)).
The term “family violence order” is defined by s.4 of the Act:
family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
There is evidence that on 22nd December 2010 the Local Court of NSW at [K] made an Apprehended Domestic Violence Order against the Respondent (described in the Order as “the defendant”) which was a Final order in force for a period of 2 years. The term of the Apprehended Domestic Violence Order had only a few days to run when the Application was heard in this Court on 17th December 2012. The Order notes that the Defendant was not present in court when the Order was made.
The Apprehended Domestic Violence Order was applied for by the Police on behalf of the Applicant and the children, all of whom were named as protected persons in the Order. As well as the standard orders, the Apprehended Domestic Violence Order restrained the defendant (i.e. the Respondent) from:
·Going within 100 metres of the Applicant’s home or place of work
·Approaching, contacting or telephoning the Applicant excepted through the defendant’s legal representative or as agreed in writing or as permitted under an order made under the Family Law Act;
·Approaching the protected persons within 12 hours of consuming intoxicating liquor or illicit drugs;
·Destroying or deliberately damaging the protected persons’ property.
An Apprehended Domestic Violence Order made by the Local Court of New South Wales under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is clearly a family violence order under s.4 of the Family Law Act.
The family violence issue is relevant when dealing with the application of the presumption in s.61DA(1) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
It is well established that family violence is directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children (see In the Marriage of JG and BG[10]; Reagan & Nevin[11]).
[10] (1994) 18 Fam LR 255; FLC 92-515
[11] [2012] FMCAfam 1431
In my view, the evidence of family violence alone is sufficient to justify an order that the mother should have sole parental responsibility for the children, but the evidence of the Father’s alcoholism makes it even more appropriate to make such an order. The evidence of the Father’s behaviour whilst intoxicated, including his disregard for the children’s welfare, is sufficient to satisfy the court that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them (s.61DA(4)).
Considering the other relevant additional considerations under s.60CC(3), there is evidence of the children’s wishes contained in the mother’s affidavit at paragraph [64]. [X], [Y] and [Z] are all reported as not wanting to see him because of his constant drinking and their fear of harm from his driving whilst intoxicated or his threats of violence towards him.
At the ages of twelve, eleven and eight years, the children are of an age where the Court should give some weight to their views (see paragraph 60CC(3)(a)).
In considering the nature of the relationship of the children with each of their parents and other persons, as required by s.60CC(3)(b), it is clear that the Mother has been and remains the children’s primary caregiver. The Father’s relationship with the children has never been close and they are afraid of him because of his drinking.
When considering the children’s relationship with their paternal grandmother under s.60CC(3)(b)(ii), there is evidence in paragraphs [58] and [64] that the children’s relationship with her is very poor. [Y] is reported as saying:
“I don’t want to see his mother because she didn’t help him to try and get over his drinking problem. She didn’t care about him or us”.[12]
[12] Affidavit of Ms Carden 19.9.2012 at [64]
The evidence is that the Father has not taken the opportunity to participate in making decisions about major long-term decisions in relation to the children, he has failed to fulfil his obligations to maintain them, and his capacity to provide for the needs of the children, including their emotional and intellectual needs, appears to be non-existent.
The evidence also strongly suggests that the Father’s attitude to the children and to the responsibilities of parenthood has been poor from the time when the eldest child, [X], was a baby, and as the Father’s drinking became worse his attitude towards the children and the responsibilities or parenthood rapidly deteriorated.
It appears on the evidence, admittedly all presented by the Mother as the Father has failed to play any part in these proceedings at all, has been the children’s primary caregiver all their lives and will continue to be.
On the evidence before the Court, a case has been made for the children not to spend any time with the Father.
If the Father wishes to play a role in his children’s lives, he will need to make an application under Rule 16.05 to vary or set aside any of the orders that have been made in his absence.
The Mother seeks an order that she should have sole responsibility for giving consent and making arrangements about obtaining passports for the children. In my view, an order that she has sole parental responsibility for the children under s.61DA of the Act should be sufficient, but I will make the order that she seeks in any event. On the evidence before the Court, the father would not be any more likely to cooperate in obtaining passports for the children as he appears to have done in any other aspect of their lives.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 17 January 2013
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