Christoph and Christoph

[2010] FamCA 1227

FAMILY COURT OF AUSTRALIA

CHRISTOPH & CHRISTOPH [2010] FamCA 1227

FAMILY LAW – CHILDREN – Parental Responsibility – Application withdrawn by the mother – All parenting orders to be discharged

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 61C, 61DA(1), 65DAA(3), 65DAC

Marvel & Marvel (No. 2) [2010] FamCAFC 101

APPLICANT: Ms Christoph

RESPONDENT: Mr Christoph

FILE NUMBER: CAC 779 of 2010

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 16 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P. Lyndon

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Ms K. Barralet

SOLICITOR FOR THE RESPONDENT: Mazengarb Barralet Lawyers

ORDERS

IT IS ORDERED THAT:

1. All orders in relation to the children, L, born … October 1996 and M, born … February 1999, are discharged.

2. I direct that the matter be removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 779 of 2010

MS CHRISTOPH

Applicant

and

MR CHRISTOPH

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court are somewhat sad, as are many matters that I have to deal with from day to day.  It began not terribly long ago with an Initiating Application by the children’s mother, seeking sole parental responsibility for L, born in October 1996 and M, born in February 1999.

2. The mother sought that the girls live with her and spend time with their father from Wednesday after school until the following Monday, half the school holidays, and for some time on special days.  This arrangement would, on any measure, be described as being “significant and substantial time”, as that is defined under the Family Law Act 1975 (Cth) (‘the Act’).

3. The father’s response, which was filed in June 2010, sought orders that there be equal shared parental responsibility for the children, that the children live with him and spend time with their mother overnight each alternate Saturday from 10.00am until 4.00pm the next day, one afternoon or evening during the school week, some time on special days and other times as may be agreed.

4. Interim orders have been put in place, which have been singularly unsuccessful.  There are various reasons advanced by the parties as to why that was so.  The situation has deteriorated to circumstances where the family consultant, in August 2010, reported the following.  During the assessment, the parents agreed that it would be in the children’s best interests that they should start spending regular time with their mother.

5. The arrangement was that Mr W, who is the mother’s current partner, would not be present while the children are in the mother’s care.  For four consecutive Saturdays, the mother will attend the girls’ netball games.  The father will not be present and they will spend until 5.00 pm of that day in her care.

6. The children will spend from 5.00 pm Friday to 5.00 pm Saturday every fortnight with their mother.  This will occur for four sessions.  The children will spend two weekends from Friday to Sunday with their mother in lieu of holiday contact during the June/July school holidays.

7. The father and the mother, with the children, were to attend the Child Inclusive Program at Relationships Australia, on 19 July 2010.  To some extent, those arrangements began, but it was the case that almost instantly things did not work the way they were intended to work and, in practical terms, as is reported in the most recent affidavit from the mother, the situation is now at a point where she feels that she has no choice but to withdraw from the proceedings.

8. She says that she believes that the children have been made antagonistic towards her by their father.  Whether that is the case or not, it is difficult to determine without any evidence before me or without an appropriate hearing of all of the relevant matters.  The Child Responsive Program Memorandum comments about this matter, but comments on the difficulties and the dynamics between the parents and the children and the children and themselves and the children with each of the parents.

9. The mother, by withdrawing, withdraws her application and theoretically the father’s response would remain on foot.  It would be appropriate perhaps, or it certainly would be appropriate to consider, but it would be appropriate to make orders which would, in some ways, affirm the position that he is currently undertaking.  He has handed up to me this day, a further minute or orders that he would seek, which include that he has sole parental responsibility for the children, that they live with him, that they spend time with their mother in accordance with their wishes, and that there be exchanges of information which would enable the children to contact their mother if they wanted to.

10. In the circumstances of this matter, I think it is appropriate that I should respect the views of the children’s mother in seeking to provide them with the space that they claim that they need to finalise their own thoughts about the parents’ breakdown, to overcome their natural enough wish that the parents should be reunited, and ultimately, to grow to accept their mother as the person she is and to accept her situation.

11. The history of the parties is fraught.  The prospect of the parties ever successfully reconciling, in my opinion is fairly remote, but it is not for me to say. 

12. I am to make an order which is in the best interests of the children, as my paramount consideration.[1] I take account of the fact that, under the Act, if I were to consider parental responsibility, there is a presumption that there should be equal shared parental responsibility.[2] Neither parent seeks such an order any more. In my opinion, in circumstances where the relationship between the parents is as difficult as this one is at the moment, such an arrangement is not possible. It would not be the case that the parents could exercise the responsibility that the Act, in its definitional terms requires

    
    

    in which commonsense and practicality would otherwise determine as appropriate.[3]

    [1] Family Law Act 1975 (Cth) s 60CA.

    [2] Family Law Act 1975 (Cth) s 61DA(1).

    [3] See Family Law Act 1975 (Cth) s 65DAC; and Marvel & Marvel (No. 2) [2010] FamCAFC 101.

13. If I make no order about parental responsibility, then the terms of the Act prevail, [as they (in fact) were before the 2006 amendments] and each of the parents would have parental responsibility for the children. Missing are the words “equal”, “shared” or “sole”, and it means that each of the parents retains the responsibility that the fact of birth and the fact of having children necessarily brings about. That responsibility will pertain for the whole of their children’s young lives and, as most parents would agree, continue for the whole of the children’s lives, no matter whether they are under the age of 18 years or beyond.[4]

    [4] Family Law Act 1975 (Cth) s 61C refers.

14. The children will live with their father for the present point.  There is no argument about his capacity.  The children will not live with their mother at the present point because of the way in which they are maintaining their relationship with her, which at the moment is both difficult and fraught.

15. I am satisfied that the children’s father will encourage the children to spend some time with their mother.  Whether he is successful or not, or whether he is able to provide the full-hearted support for that arrangement, is something that only the future will tell.  In these circumstances, the decision of the mother to withdraw from persisting with the conflict over the children is a courageous one and in the highest traditions of sacrificial parenting.

16. The relationship that each of the children has with the parents is, at the moment, such that the children are more closely aligned and allied with their father.  It would be hoped, and I read from the minutes that the father produces for me of orders he wants me to make, that he also would support the proposition that the children should have a proper relationship with their mother as well.  I acknowledge the primacy and the primary consideration that a child should have the benefit of a meaningful relationship with a parent,[5] but acknowledge that the mother has chosen a practical way of achieving it rather than a legal way.

    [5] Family Law Act 1975 (Cth) s 60CC(2)(a).

17. I further note that there are no safety issues in relation to the children which would otherwise cause me to make one particular order or another.[6] 

    [6] Family Law Act 1975 (Cth) s 60CC(2)(b).

18. I note also that the practicalities[7] associated with the children spending time with their mother as such at the moment, is that any order would be unlikely to be carried out. 

    [7] Family Law Act 1975 (Cth) s 60CC(3)(e).

19. I take account in this context with the wishes of the children and the views[8] that they have expressed both to the family consultant and to each of their parents in their different ways.  I take account of their age and the fact that they are of an age where their wishes and views should have some significant weight in determining what is going to happen to them. 

    [8] Family Law Act 1975 (Cth) s 60CC(3)(a).

20. For these reasons therefore, it seems to me that it is inappropriate to make any orders in relation to the children, apart from discharging the existing interim orders, and accordingly, I make that order now.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 16 November 2010.

Senior Legal Associate:

Date:  21 December 2010