Chranley and Smart (No 3)

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 3)

[2010] FamCA 416

FAMILY LAW – CHILDREN – final orders – parental responsibility – undefended proceedings – where there are previous consent orders for equal joint parental responsibility and for father to spend time with child – where the matter has a difficult history – best interests – where the child has expressed clear views against spending time with or communicating with the father – risk of negative outcomes if child forced to spend time with the father – where the parents lack ability to communicate – orders for mother to have sole parental responsibility – orders made discharging previous order for child to spend time with father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA & 69ZN

APPLICANT:

Mr Chranley

RESPONDENT:

Ms Smart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

207

2008

DATE DELIVERED:

28 May 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

6 April 2010

REPRESENTATION

FOR THE APPLICANT:

N/A

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Graeme D Hemsley

Orders

UPON NOTING paragraphs 3, 6 7 and 8 of the consent order of 4 December 2007 are continued, namely:

(3) That the child [S] do live with the mother.
…
(6)The parties shall be restrained and an injunction granted restraining:
6.1both parties from attending at or in the vicinity of the other’s residential premises;
6.2the applicant father from consuming alcohol and/or any illegal or non-prescription substances for a period of 12 hours before and during the period of time he spends with [S];
6.3the applicant father from leaving [S] in the case of a third party other than a peer/social event or in an emergency;
6.4both parties from discussing these proceedings with [S] or from causing or permitting any other person from discussing these proceedings with [S];
6.5both parties from denigrating the other to [S] or from causing or permitting any other person from denigrating the other to [S].

(7)Each party shall advise the other as soon as practicable in the event that [S] is injured or falls seriously ill while she is in their care.
(8)This Order shall act as an authority for any school at which [S] may attend from time to time to send to the father copies of her reports and any other correspondence sent to the mother which details her academic progress.

IT IS ORDERED:

That paragraph 2 of the order of 4 December 2007 is discharged.
That the mother do have sole parental responsibility for the child S born on … March 1997.
That paragraphs 4 and 5 of the order of 4 December 2007 are discharged.
Notwithstanding, paragraphs 6.4 and 6.5 of the order of 4 December 2007, the mother and the Independent Children’s Lawyer are permitted to tell S the particulars of the orders made today.
This removes all matters from the pending list save and except the contravention and contempt applications some of which are listed for trial for five days commencing on 9 August 2010 before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

REASONS FOR JUDGMENT

Introduction

On 6 April 2010 ex-tempore reasons for judgment were delivered indicating that the Court would proceed to hear the application for final orders sought by the mother on an undefended basis. On that date the Court also made interim orders to apply pending the delivery of this reserved judgment.
The proceedings concern the child of the parties S (“S”) who was born in March 1997 and is therefore aged 13.

Background and brief chronology

Although the current file in the Family Law Courts was opened in 2008 and now has 112 documents on file, there were long previous proceedings between the parties which commenced in the year 2000.
Final orders were made by consent on 4 December 2007. These consent orders provided that the father and mother have joint parental responsibility for the child, that the child live with the mother and that the father spend time with the child each alternate weekend and other specific orders.
Shortly after the consent orders were made in December 2007, the father commenced proceedings for Contempt and has subsequently filed numerous applications in relation to contempt and contravention.
By Initiating Application filed in the Federal Magistrates Court of Australia on 26 June 2009, the father sought final orders: “[S] to spend alternate weeks of school holidays with her father”. The interim orders he sought in that Initiating Application were the same.
On 25 September 2009, Federal Magistrate Lindsay made orders listing certain contravention applications filed by the father for trial before himself in December 2009. Also on that day Federal Magistrate Lindsay made an order for the appointment of an Independent Children’s Lawyer for S and transferred the father’s Initiating Application filed on 26 June 2009 and his Application in a Case filed on 21 September 2009 to the Family Court of Australia.
After that date the father filed further numerous applications for contravention and some contempt applications.
On 22 October 2009 the mother filed a Response to the Initiating Application in which she sought that the matter be transferred to the Family Court of Australia, that a Family Assessment Report be prepared, that an Independent Children’s Lawyer be appointed and “that time spent between the Applicant and the child [S] be at the desire and determination of the said child.”
On 9 December 2009 when some of the contravention matters were listed before Federal Magistrate Lindsay he made the following orders:
“1.The return date of all contravention and contempt applications filed to date by the father be brought forward to today.
2.All contravention applications and contempt applications filed to date be transferred to the Family Court of Australia for further consideration at a date and time to be determined by the Honourable Justice Dawe.”
In the Family Court of Australia directions had been made which included referring the Initiating Application and Response to further directions after a Family Consultant had provided a Children and Parents Issues Assessment Report.
The order of Registrar Paxton on 3 November 2009 made the usual orders requiring the parties to attend appointments with the Family Consultant.
The Court received the Children and Parents Issues Assessment Report dated 16 December 2009, prepared by Dr A.
On 5 January 2010 the father filed a Notice of Discontinuance, discontinuing his Initiating Application filed on 26 June 2009 seeking to discontinue all of the orders applied for in that application.
On the same day the father filed further contempt applications and contravention applications. Thereafter he continued to file further contravention and contempt applications.
When the matter came on before Registrar Paxton on 2 February 2010 certain notations were made:
“In relation to the outstanding response of the mother filed on the 22^nd October 2009 (noting that the mother wishes to proceed and noting the father filed a Notice of Discontinuance re the application initiating proceedings on 5 January 2010) that the same be listed for a default hearing at a date and time to be advised by the Court and notifying the parties. That any affidavit for the default hearing be filed and served within 14 days. That the father serve the Notice of Discontinuance on the mother and Independent Children’s Lawyer within 7 days.”
By letter of 3 February 2010 the mother, father and Independent Children’s Lawyer were advised that
“This matter was adjourned by Registrar Paxton to a date to be fixed. This listing is for the purpose of dealing with the mother’s application for default orders in relation to her Response filed on 22 October 2009. It is also a directions hearing in respect of the outstanding contravention and contempt proceedings.
The date for your undefended hearing is Tuesday 6^th April 2010 at 2.15 pm at Commonwealth Law Courts, 3 Angas Street, Adelaide, SA 5000.”

Hearing on 6 April 2010

On 6 April 2010 at the commencement of the hearing, both the mother and father appeared unrepresented. Mr Hemsley appeared as Independent Children’s Lawyer.
The contravention and contempt applications were listed for subsequent hearing in August 2010.
The hearing on 6 April 2010 proceeded with some difficulty. The Court has published reasons for proceeding to hear the matter on an undefended basis on that day.
After expressing his disapproval of the Court process, the father left the Courtroom. The Court then heard the submissions of the Independent Children’s Lawyer and the mother. After making interim orders and providing ex-tempore reasons in relation to interim orders, the Court reserved judgment.

Submissions

The mother and the Independent Children’s Lawyer supported the discharge of the joint parental responsibility order and the orders providing for specific arrangements for S to spend time with or communicate with the father. The Family Consultant’s report dated 16 December 2009 supported their submissions.
It was confirmed that S has not spent time with the father since September 2009.

The Law

The Family Law Act Part VII relates to children. The objects of that part and the principles underlying it are set out in section 60B (1) and (2):
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out specific criteria the Court must consider:
Section 60CC
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)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 and being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)   the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)   the order is a final order; or
(ii) the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)   participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii)       communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 61DA provides:
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65D provides:
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Note Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
Section 65DAA provides:
Section 65DAA
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, 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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)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; and
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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)         days that fall on weekends and holidays; and
(ii)         days that do not fall on weekends or holidays; and
(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.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

The matter before the Court was the response filed by the wife on 22 October 2009. The principles set out in section 69ZN apply:
Section 69ZN
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

Discussion and findings

By consent of the Independent Children’s Lawyer and the mother (and in the absence of the father) the Court received the Children’s and Parent Issues Assessment dated 16 December 2009. This report was prepared by well-qualified, experienced Family Consultant, Dr A.
The assessment was based on information gathered at the interviews conducted in December 2009. The third paragraph of the preamble states:
“[The mother] proposed that [S] should not spend time with her father and that the child should not have to speak to her father by telephone. [The father] proposed that he will continue to litigate against [the mother] with a view of spending time with [S]. He further proposed that he would discontinue his litigation.”
The “Key issues” were described as follows:
“Key issues
·    [S] firm conviction that she does not want to see or speak to her father and her current refusal to do so primarily because she feels unsafe in her father’s company and unsafe when he denigrates [the mother]
·    [The father’s] refusal to hear any feedback about [S’s] views
·    [The father’s] express refusal to receive this assessment from the Court
·    [The father’s] aggressive and threatening presentation at Court”.
S was described and her wishes discussed commencing on page 1 and continuing to page 2. Part of that section of the report states:
“[S] presented as an engaging, gentle, articulate and mature child for her nearly thirteen years. [S] conveyed a strong impression of an intelligent child whose language skills and cognitive ability appeared to fit well within the parameters suggested by her age and stage of development.”
Later there was a paragraph which commenced as follows:
“With regard to her father, [S] described feelings of emotional pain, frustrations, fear and anger. [S] adamantly stated that she will not be seeing her father or speaking to him on the phone because of her feelings towards him that have, she said, evolved directly from his negative attitudes and behaviours. [S] expressed her wish not to suffer depression and other negative outcomes, as she perceives her sister has, through having to spend time with her father. She described the impact of the ongoing litigation and mentioned sadly that her mother had not been able to attend her sports day at school because she was required to attend Court.”
The report then continues under a heading “Parents’ Understanding of Children’s Needs”
“[The father] appeared unable to appreciate that [S] has, independently of her mother, expressed firm views about spending time with him. [The father] expressed his view that [S] is a mature, independent child who is bright and unlikely to be led by anyone else’s point of view. He did not appear to perceive any conflict between those two views. [The father] appeared motivated and fuelled by his remembrances of [the mother’s] perceived shortcomings over time and of his view that [the mother] “should be taken out of the picture”. [The father] appeared to be emotionally overwrought and, at this time, unable to separate [S’s] needs for a peaceful life from his needs to continue with his relationship with the child and his needs to continue with litigation.
[The father], as previously described, clearly struggled with preparedness to hear, and in fact refused to hear his child’s views or accept this assessment. He did not appear to demonstrate ability, in this instance, to take on the child’s views.”
The report writer then dealt with the mother’s views and attitudes.
Under the heading “Future Directions” the report concludes:
“It appears unfortunate and difficult to imagine that further assessments might offer [S] an opportunity to safely and comfortably spend time with her father. It appears to be fairly clear that there are distinct possibilities that even though [the father] reported his intention to discontinue this matter, he might well continue to litigate with the aim of restoring his relationship with [S] at this time.
It appears that spending time with [the father] at this time could possibly and most likely present [S] with an unacceptable risk of emotional and psychological harm. In the absence of [the father’s] willingness and preparedness to enter into counselling then further referrals would appear to be unhelpful at this time.
Future directions might include encouragement of [the father] to cease litigation and to make a conscious effort to never denigrate [the mother] to [S], or allow any other person to do so, in the future. They might encourage [the mother] to similarly make a conscious effort to never denigrate [the father] to the child [S] in the future or allow any other person to do so.
Future directions might include an agreement by each of the parties that [S] be given permission to choose to see her father in the future and assistance to do so if necessary.”
The provision of Sections 61DA and 65DAA need to be considered. Section 61DA(4) provides:
“The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
The ongoing litigation since the consent order was made in December 2007, the inability of the mother and father to engage in any form of civil communication about S’s welfare and S’s clear attitude towards, and her relationship with, the father are sufficient to rebut the presumption. The Court is satisfied that it would not be in the best interests of S for her parents to have equal shared parental responsibility. On the contrary, the Court is satisfied that it is in the best interests of the child that the mother have sole parental responsibility for S.
The Court therefore does not need to consider further the specific provisions of section 65DAA.
The decision about what is in the best interests of S has been reached after considering the specific matters of section 60CC. These support the conclusion reached under section 61DA(4).
The primary considerations emphasise the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Court needs to consider carefully the discharge of the previous consent orders which provided for S to spend regular time with the father. A discharge of those orders would not prevent S making arrangements to see her father, but would give S (and the mother if the mother has sole parental responsibility) the ability to make arrangements which suited S. This will reduce the significant stress and psychological trauma of ongoing litigation, whilst at the same time allowing S to spend time with and communicate with her father in a manner which she decides would promote the relationship rather than the current orders which appear to be harming the relationship between the child and the father.
The Family Consultant’s report referred to S’s emotional pain, frustration, fear and anger and her concern about not suffering depression and other negative outcomes if required to spend time with the father. These are significant factors. These factors relate to the risk of psychological and emotional harm to S. A meaningful relationship with the father would not be promoted by maintaining the consent orders.
Under the additional considerations to be considered, the significant one in this matter is subsection (a)
(a)any views expressed by the child and any factors (such as the child’s maturity and level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
S is now 13. Up until September 2009 she was spending time with the father. The Court takes into account that S has been residing primarily with the mother and her other extended family, but the report indicated that S was able to express her views and feelings about her father in a way that suggest significant weight should be given to her views.
(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);
The report indicated that S was happy and satisfied with her living arrangements in the home of her mother, defacto stepfather and sister. The relationship with her father was described as a negative one brought about according to the child, by the father’s behaviour and in particular his ongoing denigration of the mother and continued litigation.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother was seeking an order that S’s time spent with her father be in accordance with S’s “desire and determination”. The mother expressed concerns about the father’s behaviour and the risk that it raised for S.
(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 an grandparent or other relative of the child), with whom he or she has been living;
The Family Consultant’s report indicates that a change in the Court order and a reduction of proceedings before this Court would be likely to provide a significant benefit to S, particularly for her emotional and psychological wellbeing.
(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.
Apart from the continued difficulty of communication between the parents about arrangements to fit in with S’s best interest, this is not a significant factor.
(f) the capacity of:
(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;
to provide for the needs of the child, including emotional and intellectual needs; and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Court is satisfied that the mother has the capacity to provide for S’s needs, including her emotional and intellectual needs and that an order that S live with her will promote S’s best interests. The Family Report suggests that the father may have significant psychological or emotional difficulties in providing for S’s needs, particularly her emotional needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
S is now 13. The report suggests she has given her views in an appropriate, mature, articulate fashion.
Factors (h), (j) and (k) are not relevant.
(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;
This is a significant matter in these proceedings. It is clearly preferable for S that her parents cease to be involved in ongoing proceedings. In particular the Family Report suggests:
“[S] has the support of her mother, her defacto stepfather and her older sister. With such supports and with an opportunity to proceed through adolescence in the absence of ongoing parental conflict and feelings of fear relating to her father [S’s] developmental milestones would appear likely to be achieved ….”
(Bottom of page 4 of Family Report)
An order providing for the mother to have sole parental responsibility for S and for a discharge of any order requiring S to spend time with or communicate with the father at particular times or in a particular way, would have the benefit of reducing the likelihood of further proceedings and increasing the likelihood of successful, emotional and intellectual development for S.
Subsection 60CC(4) requires the Court to take into account the extent to which each of the child’s parents has fulfilled or failed to fulfil certain responsibilities. The Court takes into account that since September 2009 S has not spent time with the father. In particular, the Court has regard to the events that have happened and the circumstances that have existed since the separation of the parties in accordance with subsection (4)(a).
Weighing all of the factors required by sections 60CC, 61DA and 65DAA the Court considers (section 65D) that it is proper and in S’s best interests (section 60CA) to make orders which provide for her mother to have sole parental responsibility and to discharge the orders requiring S to spend time or communicate with the father. This would not prevent S and the mother from making arrangements for S to spend time with or communicate with the father in accordance with S’s wishes and in a manner which will protect S’s emotional welfare.
Paragraphs 3, 6, 7 and 8 of the consent order of the 4 December 2007 should continue and are specifically set out in today’s orders.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 28 May 2010

[2010] FamCA 416

28 May 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Injunction

Remedies

Res Judicata