Clarkson and Clarkson (No.2)

[2016] FCCA 2347

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARKSON & CLARKSON (No.2) [2016] FCCA 2347

Catchwords:
FAMILY LAW – Parenting orders – parental responsibility – presumption of equal shared parental responsibility rebutted – orders made as sought by the mother.

Legislation:

Family Law Act 1975, s.61DA(4)

Applicant: MS CLARKSON

Respondent: MR CLARKSON

File Number: MLC 6016 of 2012

Judgment of: Judge Hartnett

Hearing date: 31 August 2016

Delivered at: Melbourne

Delivered on: 8 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Treyvaud

Solicitors for the Applicant: Gadens Lawyers

The Respondent: In Person

THE COURT ORDERS THAT:

1. The wife have sole parental responsibility for the children X born (omitted) 1998 (‘X’) and Y born (omitted) 2002 (‘Y’) (collectively ‘the children’).

2. For the avoidance of doubt, the wife have sole responsibility for decisions affecting the children in all areas including but not limited to:-

   (a)their health and education; and

   (b)their travel overseas such that the wife may apply for passports for either or both of the children without first obtaining the consent of the husband and the Court requests that the Department of Foreign Affairs facilitate the issue of a passport in respect of both or either of the children.

3. The child Y spend time and communicate with the husband (with X to attend at her election) as follows:-

   (a)On or about 26 or 27 December each year for dinner at the paternal grandmother’s home;

   (b)On or about 30 March each year for dinner at the paternal grandmother’s home;

   (c)On or about 31 August each year for dinner at the paternal grandmother’s home;  and

   (d)Otherwise as initiated and agreed by the children. 

4. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Clarkson & Clarkson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6016 of 2012

MS CLARKSON

Applicant

And

MR CLARKSON

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by the Applicant wife on 3 June 2015, wherein the wife sought parenting orders.  The wife has previously obtained an order that the children live with her. The wife continues to seek additionally that she have sole parental responsibility for the children of the marriage X born (omitted) 1998 (‘X’) and Y born (omitted) 2002 (‘Y’).  The wife’s initiating application on filing was supported by an affidavit sworn by the wife on 2 June 2015.

2. The Respondent husband filed a response to the proceedings dated 16 June 2015.  The final orders sought by him were that:-

   “1. The children to spend one night a week with their father for a meal.

   2. The children to remain the shared responsibility of both parents.”

3. The husband filed an affidavit sworn by him on 10 June 2015 in support of the orders as sought by him in his response.

4. Thereafter, the wife filed a reply dated 8 July 2015 seeking dismissal of the husband’s response to final orders.  The wife also sought that the husband pay her costs of the application. 

5. On 29 April 2016 the wife filed an affidavit of evidence-in-chief in compliance with orders made on 3 September 2015.

6. When the proceedings came before the Court on 3 September 2015, the Court ordered on a final basis that the children live with the wife.  The children continuing to reside with their mother has not been opposed by their father.  The Court thereafter ordered until further order the following:-

   “2. The Applicant mother has sole parenting responsibility for the children.

   3. The Respondent husband, before the 30 October 2015, and upon being notified by the Applicant wife that she has already attended, shall attend in person upon the (country omitted) Consulate in Melbourne for the purposes of completing the necessary application for X to be issued with a (country omitted) passport.

   4.  The Respondent husband attends a parenting program with Bethany as soon as is practicable and provide evidence of completion of any courses to the Applicant wife’s Solicitor.

   5. The Respondent husband attends upon a counsellor as recommended by his general practitioner and provides evidence of such attendances to the Applicant wife’s Solicitor.

   6. Subject to the Respondent husband’s compliance with Order 4 and 5 herein the children X (subject to her wishes) and Y spend time with the Respondent father for dinner at the paternal grandmother’s home in the month of December 2015 or earlier as agreed and thereafter as agreed with liberty to apply with respect to this.

   7. Otherwise the matter be adjourned to 12 May 2016 at 10.00am for final hearing (with an estimated hearing time of one day).

   8. The parties file and serve any further affidavit material they intend to rely upon not less than 14 days prior to the final hearing.”

7. On 12 May 2016 an order was made wherein the proceedings were adjourned to 31 August for final hearing.

History

1. The wife was born on (omitted) 1962 in (country omitted).  She immigrated to Australia in (omitted) 1996.  She is an Australian citizen.  The husband was born on (omitted) 1962 in (omitted) in the State of Victoria. The wife is a (occupation omitted). The husband a (occupation omitted). The wife and children live in (omitted), a suburb of Melbourne and the husband resides in (omitted) though spends the working week in (omitted), a country town in Victoria.

2. The parties commenced their cohabitation in (omitted) in 1990.  They married on (omitted) 1992 in (country omitted) and separated some 19 years later on 1 January 2011.  A decree nisi for dissolution of marriage has issued.

3. The parties’ child X is now aged approximately 17 years and 10 months and the parties’ son Y is now aged 13 years and eight months.  X is in year 12, being her final year of schooling, at (omitted) School.  Y is in year 8 at (omitted) College. Both these schools are private schools. Both children obtained scholarships to attend these schools and the fees and various other expenses not covered by the scholarship are paid for by the wife exclusively.

4. The children are in good health and progressing well at school.  Both children have extensive extracurricular activities in which they excel and on the evidence it would appear that both children are very involved in their school life, their sporting life, their communities of friends, neighbours and sports coaches and their family life with their mother. They are thriving in their daily lives.  What is absent is a meaningful communication with their father, which has not occurred for over four years in the case of X and three years in the case of Y, save as described hereafter.

5. These proceedings commenced because the wife booked a 10 day holiday for herself and the children to (country omitted), early in 2015.  The wife subsequently became aware that (country omitted) requires a passport with at least six months’ currency on it before it expires. X’s passport expired prior to that time, and thus, a further passport was required for X to leave the Commonwealth of Australia.

6. X forwarded to her father a (country omitted) passport application in or about October 2014 with a covering letter, requesting that he sign the enclosed application.  In that covering letter, X referred to her father as “Mr Clarkson”. The husband was insulted by X’s reference to him by a name other than “Dad” and refused to sign the passport application. Thereafter, X gave an Australian passport application to her paternal grandmother, Ms L, requesting that she give it to her son for signature to enable X to obtain an Australian passport.  The paternal grandmother, with whom X and Y have continued to have a good relationship, supported by their mother, returned the application unsigned, saying that the husband had refused to sign the application.

7. In the face of the husband’s refusal to sign the passport application for X, the mother was required to file an application in the Court, seeking orders which would enable X to have a passport issued to her.  Following the filing of that application by the wife, the husband signed the necessary passport application.  The mother determined that she would not be placed in the same situation again and with a view to that and looking back on the history between the parties, she sought in the application she made to the Court an order for sole parental responsibility of the children.

8. In looking to that history as referred to above the Court observes that following the parties’ separation on 1 January 2011, there was protracted litigation between the parties in the Court as to children and financial matters throughout 2012 to 2014. Final property orders were made by Judge Hughes on 17 April 2014. Thereafter, a subsequent costs application against the husband was also finalised.  In respect of the parenting orders part of the proceedings, the husband withdrew from seeking any parenting orders on 23 September 2013, when orders were made by Judge Hughes by consent that all parenting orders were discharged and that all extant parenting applications were dismissed. This left the parties having parental responsibility for their children deriving from them being the biological parents of the children. 

9. I shall not here set out further that history of litigation as between the parties save to say that in an effort to assist the relationship between the husband and his children, the children and the husband attended upon Ms R for the purposes of therapeutic, non-reportable counselling. After approximately three months the husband refused to continue counselling and confirmed same in open court. That disappointed the children, in particular Y.

The passports

1. The husband is well aware that the wife and children have travelled extensively since 2011 without incident. More recently X has gone on a student (country omitted) exchange in the period from 21 November 2014 to 18 January 2015 and Y and the wife met X in (country omitted) in December 2014 remaining until 18 January 2015.

2. In paragraph 21 of her affidavit in support of her application for the issue of a passport for X the wife said as follows:-

   “The children are accustomed to and enjoy travelling.  They have been looking forward to the holiday in (country omitted) most of this year.  In the event we are unable to obtain a passport for X, I will lose the majority of the pre-booked flights and accommodation totalling some $5,500 as it will not be covered by insurance.”

3. The husband in response to the request from his daughter to attend at the (country omitted) consulate to sign a paper in relation to her (country omitted) passport in November 2014, wrote to the wife’s solicitors, advising in general terms that he would deal with the signing issue presently but in the meantime his former wife could pay him the sum of $2,700 which he claimed had been agreed upon but had been forgotten and not included by the financial settlement judge. The wife denies any such agreement but pertinently there are no orders requiring a payment of that sum from the wife to the husband.  Not surprisingly, the husband did not receive a response from the wife’s solicitors.

4. The husband’s evidence is that when subsequently his mother requested that he sign a passport application for X, he thought it was again the (country omitted) passport application and he refused, informing his mother that X had insulted him and there should be consequences for poor behaviour. He thinks he told his mother that he would sign the document if X was polite.

5. At trial, the husband tried to distinguish between the (country omitted) and Australian passports, saying that on 6 June he had signed the Australian passport application for X and left it at her home.  He did not realise that the application his mother had requested he sign was an Australian passport application.  That is contrary to his own affidavit evidence and in any event is not accepted by the Court.  The husband re-thought the signing of a passport application upon being served with the wife’s application in these proceedings. The husband then proceeded on 26 October 2015, as required by Court order, to attend the Consular-General of (country omitted) in Melbourne to sign all the necessary paperwork for X to receive a (country omitted) passport.

Evidence

1. The mother’s evidence is that the children do not wish to spend time with their father; they do not wish to speak with their father.  The children and their mother attended the paternal grandmother’s 80^th birthday celebrations in (omitted) 2015.  The children and wife have maintained a good relationship with the paternal grandmother.  The husband was also present at this celebration.  However, he and the children did not speak throughout the course of the party.

2. The husband’s application that the children spend a night a week with him having dinner is not supported by the evidence.  The child X is almost 18 years and has chosen not to see her father for a number of years now.  It would certainly not be in her best interests for the Court to make any order compelling her at this stage in her life to see her father in circumstances where she declines to do so. 

3. That expression of X’s wishes is also referred to in the child inclusive memorandum to Court prepared by family consultant Ms P on 31 July 2015.  Ms P noted the children’s clearly expressed preference not to spend time with their father.  She noted that they both reported a long history of experiencing disappointment with their father making promises for change that were not kept. The family consultant noted that the children’s accounts appeared inconsistent with the husband’s presentation at interview, as there was no suggestion that he felt any need to change his behaviour.

4. The recommendation of Ms P was that X be permitted to choose whether she would like to spend time with her father, however, noted that it was preferable there were not separate arrangements for the children to spend time with their father. Of course, one year has passed since that memorandum to the Court was prepared and the children are a further year older.  Given X’s age, the Court also queried with Counsel for the wife why it would be in the child’s best interests to make a sole parental responsibility order in favour of the mother for what is, in essence, some two months being the period before which X turns 18 years of age. 

5. The mother’s evidence before the Court is that such an order is necessary.  She has an extensive history of difficulty in dealing with the husband and is concerned that should anything arise in the next two month period, such as X sustaining any injury on a sporting field, or whilst engaging in a sporting endeavour, that she may have to attempt to communicate with the husband as to the most appropriate medical treatment for their daughter. The mother does not wish to be put in that position given the lack of ability of the parties to communicate, let alone agree and given that any delay in decision making might be detrimental to the welfare of X. 

6. In respect of the sole parental responsibility order as sought by the wife with respect to the children, Ms P recommended that the children live primarily with their mother and that the mother have sole parental responsibility.  That was a recommendation on an interim basis. 

7. Whilst it is unusual given X’s age, the Court shall accede to the application of the wife to ensure that no difficulties arise in respect of X’s care in the next two month period, a particularly important time in her life as she nears the end of her secondary education.  It is quite clear that her parents have a complete inability to communicate and absolutely no desire to do so. The husband was intent in the proceedings in conveying his negative view of the wife.  He referred to her as a “woman scorned”, as “obese”, as a person whom “not many people like” including himself and as “very controlling” and “a control freak”.  The wife for her part is beyond ‘encouraging’ the children to speak to or see their father. She has however left that opportunity open to the children and they are aware of that.  

8. The husband is currently employed as a (occupation omitted) and in receipt of income of approximately $70,000 per annum.  He pays the minimum Centrelink-prescribed assessment of child support being approximately $34 each month. This is in fact a matter which pleases the husband because he considers himself very badly done by in the property orders that were made by the Court in 2014.  He considers that those orders effectively made provision for lump sum child support of a considerable amount over the forward years of the children’s upbringing. 

9. The husband’s nominal assessed amount came about in these circumstances. Following the making of the orders on 3 September 2015, the wife was contacted by the Department of Health and Human Services Child Support Unit (CS) who advised her that the husband had lodged an application on 4 August 2015 seeking a forensic assessment of her finances and had provided a number of financial documents that she had supplied during the course of the family law proceedings from 2012 to 2014.  CS advised the wife that the nominal amount the husband been assessed to pay had gone up as a result of the husband’s income increasing.  The husband had been assessed to pay $1868 annually.  He lodged an objection following notification of this increase, despite it being a paltry amount by comparison with the costs of support of the children.

10. The wife did not request a review of the payment and generally accepted that she could not rely on nor expect the husband to financially support the children.  The wife advised CS that she did not seek for the husband to pay child support and the notice of decision issued on 16 October 2015 indicated that the annual rate of child support for Y from the period 21 August 2015 till final terminating event was set to the statutory minimum rate applicable.

11. The husband continues to blame the Court system (he did so to the family consultant in July 2015) for his current lack of a relationship with his children.  He takes no responsibility for his participation in the consent orders made in 2013, nor for the current state of his relationship with his children.  He also in part blames the children for their decision not to spend time with him. 

12. When interviewed by the family consultant, the family consultant observed that there were no overt signs the children had been exposed to adult views about the parenting dispute. The family consultant noted that it appeared neither parent had taken sufficient steps to support the children to spend time with their father. The impression gained from every member in the family was that they felt their communication problems were too difficult or painful to resolve and that it was easier not to try. 

13. Y reported to the family consultant that his father had used the threat of not spending time with him in future to enforce compliant behaviour on two occasions.  X reported distress at receiving critical emails from her father on her school email account. In one such email of September 2012 the husband wrote:-

    “Unfortunately, you’ve decided not to include me in your life. You have been very rude, thoughtless and totally disrespectful, a very unpleasant little girl. You will never babysit Ms L’s children. We don’t trust you. You will, from now on, attend dinners, weekends and holidays with Y and me as per the parental agreement. I will endeavour to enable you to attend sporting events as much as possible.”

    X did, however, report to the family consultant a now willingness to accompany her brother to have dinner with her father at the paternal grandmother’s home on occasion in order to support her brother. The two children have, in fact, had such a dinner since the compilation of the child inclusive conference memorandum to the Court and have also attended for a less successful brunch.

1. The family consultant noted that the father demonstrated an extremely limited ability to identify or empathise with the children’s emotional needs.  He repeatedly presented accounts that focused on his own needs and described responding in punitive ways toward the children.  The family consultant concluded that it was possible the children would benefit from spending occasional and limited time with their father, however, that time should be supported by both the father’s attendance at counselling and the presence of other family members to ensure that the father did not behave in a punitive manner toward the children.

2. During the term 1 school holidays this year, the paternal grandmother tried to arrange another dinner between the children and the husband.  X had however been accepted into the (hobby omitted) and trialled from the (omitted) in (omitted), New South Wales, to represent Australia in (country omitted) in (omitted) 2016, which meant she spent weeks away at team camps.  Y refused to attend without X. Y is a mature child and the Court accords to the expression of his views considerable weight.

3. The wife has continued to facilitate and encourage the children’s relationship with the paternal family.  The children are currently feeling a little pressured by their grandmother, who wishes for them to spend time with their father at her home.  The mother seeks orders that that time be fixed so that it takes some pressure off the children whilst still allowing for the children to initiate and agree to any further time spent with their father.

4. The husband filed no affidavit evidence in chief and, in the witness box, focused on complaints about the wife. He showed no insight into the views expressed by the children; the reasons for those views; or the promotion of their best interests currently. The presumption that the parties have shared equal parental responsibility of their children is rebutted in the circumstances of this case and on the evidence before the Court, pursuant to s.61DA(4) of the Family Law Act 1975 (Cth). The Court is satisfied it would not be in the best interests of the children for each of the child’s parents to have equal shared parental responsibility for the child.

5. The complete absence of any form of communication, let alone respectful communication between the parents, emanating from the husband, means that no decisions are able to be taken jointly in the promotion of the children’s best interests.  That responsibility must lie solely with the mother with whom the children live. They depend upon her for all their emotional, physical and financial needs and such needs are well met by her. The orders made by the Court on the evidence and findings made on the basis of such evidence are those sought by the wife. The Court will adopt the usual practice of no order for costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 8 September 2016