CORLING & FRANKLIN

[2010] FamCA 402

FAMILY COURT OF AUSTRALIA

CORLING & FRANKLIN [2010] FamCA 402

FAMILY LAW – CHILDREN – final orders – where the father has made an application seeking to spend time with the children – undefended hearing – best interests – long standing issues of violence against the mother and the children – where a meaningful relationship with the father was not possible – children expressed clear views against spending time or communicating with the father – orders that the children live with the mother and that she have sole parental responsibility – father’s application dismissed

Family Law Act 1975 (Cth) ss 60CA, 60CC & 61DA.

APPLICANT: Mr Corling

RESPONDENT: Ms Franklin

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: MLC 11123 of 2008

DATE DELIVERED: 19 MAY 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 19 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	No appearance
SOLICITOR FOR THE APPLICANT:	No appearance

COUNSEL FOR THE RESPONDENT:	MR BOEHM
SOLICITOR FOR THE RESPONDENT:	DENISE M RIENIETS & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS COCKS
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. That the children A born … December 1994, B born … December 1996, C born … July 1998, D born … October 1999, E born … December 2000 and F born … October 2002 live with the mother and that she have sole parental responsibility for them.

2. That the father’s application to spend time with the said children is dismissed.

3. That the appointment of the Independent Children’s Lawyer is discharged.

4. That all applications before the Court are otherwise dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 11123  of 2008

MR CORLING

Applicant

And

MS FRANKLIN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today for determination as the 1^st Day of trial, the Initiating Application of the father filed in the Melbourne Registry on 9 December 2008 and the Response to that application also filed in the Melbourne Registry by the mother on 30 March 2009.  There were some preliminary hearings in the Melbourne Registry in late 2008 and the early part of 2009.  By Order made on 3 April 2009 the matter was then transferred to the Adelaide Registry of the Federal Magistrates Court and then on 19 May 2009, the matter was transferred from the Federal Magistrates Court to the Adelaide Registry of the Family Court of Australia.  The matter has been conducted within the Court’s Magellan list since that time.

2. There were a number of preliminary hearings in which the father was represented but after filing some earlier Affidavits, his solicitors filed a Notice of Ceasing to Act on 3 November 2009.  This followed a Court event on 29 October 2009 when there was no appearance by the father or anybody on his behalf.  On that date I ordered, inter alia, that the father attend the adjourned hearing to be conducted on 27 November 2009 to indicate whether or not he intended to pursue his applications before the Court.   I also noted in those orders that if he failed to attend, the Court was likely to make orders by default in his absence.

3. When the matter came before me again on 27 November 2009 after the Notice of Ceasing to Act had been filed by the father’s solicitors, I made arrangements to contact the father by telephone link during which he indicated he needed time to consider his decision and determine whether or not he wished to pursue his application before the Court.  The matter was then adjourned to 2 February 2010.  On that date there was again no initial appearance by the father but I arranged for him to be contacted by telephone and at that time he indicated that he wished to prosecute his claim before the Court in respect of his children.  I then made various orders in preparation of the matter for the 1^st Day hearing before me today.  I also ordered that the Court provide assistance to the father in the provision of a blank Parenting Questionnaire for him to complete and copies of the relevant Sections of the Family Law Act for his consideration.  I also ordered that he file and serve a copy of the Reasons provided by the Learned Magistrate on the dismissal of the criminal charges against him and his completed Parenting Questionnaire.

4. On 26 February 2010 the Court received a letter from solicitors representing the father but only as to the preparation of the Parenting Questionnaire and responding to the request that the Reasons of the Learned Special Magistrate given at the time of the dismissal of the criminal proceedings be provided to the Court. The completed Parenting Questionnaire was provided by those solicitors Doolan Kemp Townsend of both Melbourne and Whittlesea in Victoria.  They also provided an extract of the Magistrates Court order on the day of the dismissal of the charges against the father.  They indicated that they were not able to provide the Reasons for the decision as the Magistrates Court was unable to do so, but further indicated that they were endeavouring to obtain a statement from Mr Tim Fitzpatrick of Counsel who acted for the father in the criminal matters before the Magistrates Court in the hope that he could provide some guidance as to the view taken by the Magistrate in the determination of the matter.  No such further material has been received by the Court and, as I understand it, no such information or material has been received by either of the mother’s legal representatives or the Independent Children’s Lawyer.  Indeed the mother’s legal representative did not receive a copy of the letter of 26 February 2010 but the Independent Children’s Lawyer did.

5. As a consequence of matters raised by the father at the last hearing before the Court on 2 February 2010 and an indication from him that he wanted to try and resolve the matter on a mediated basis, I ordered that he attend this morning at the Offices of the Legal Services Commission in Adelaide in order to participate in a mediation and conciliation conference exercise, the intent being that if the matter was resolved this morning I would be in a position to make consent Orders this afternoon.  Alternatively, if the matter was not able to be resolved I would be able to make orders progressing the matter to trial.  I am informed by Counsel at the bar table today that Mr Boehm and the Independent Children’s Lawyer attended the arranged conference but there was no appearance by the father.  Attempts were made by the Independent Children’s Lawyer and the convenor of the mediation conference to contact the father but without success.  Nor has the father attended this afternoon’s proceedings despite being called.  I am informed by Counsel for the mother that the mother has not seen him within the precincts or the body of the Court today either. 

6. In my view, every possible opportunity has been afforded to the father to advance his case before the Court.  It is further my view that it would represent the best interests of the children if the matter was determined today and I intend to do so in default of appearance by the father.

7. In making any determination, even on a default basis, I need to have regard to the relevant provisions of the Family Law Act.  First and foremost I need to give consideration to Section 60CA which dictates that in making any parenting order, I must regard the best interests of the children as the paramount consideration.  In making that determination I am guided to Section 60CC of the Act which is divided into “primary” and “additional” considerations.  The first of the primary considerations is:-

(a)the benefit to the children of having a meaningful relationship with both of the children’s parents;

and the second is:-

(b)the need to protect the children from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. It is appropriate to deal with these two sub-sections together as the issues in relation to violence clearly dictate what consideration should be given to the issue of “meaningful relationships”.

2. The evidence is strong that the issues of violence dictate that no meaningful relationship, on the evidence presently available to the Court, could be established as between the children and the father.  On the other hand, there is clear evidence that the children’s most meaningful relationships are those with their mother who has attended to their primary care for a lengthy period of time both during the relationship and solely since the separation of the parties on 13 May 2008.  It would obviously have been a busy time for the mother as she has needed to commit herself to the children, A born in December 1994, B born in December 1996, C born in July 1998, D born in October 1999, E born in December 2000 and F born in October 2002 who are respectively aged 15, 13, 11, 10, 9 and 7.

3. Significantly, in relation to these two sub-sections but particularly the latter, the mother secured a family violence order in relation to the father which does not expire until 2012.  There were a number of breaches of the family violence order by the father to the point where he spent a period of time in prison as a consequence.

4. I ordered the preparation of a Family Report and one was provided by Mr P on 20 October 2009.  In that report Mr P makes constant reference to issues of family violence. He reports not only the mother’s experience of family violence at the hands of the father but also that of the children.  It makes for a very persuasive account and disturbing reading.  Mr P draws a number of conclusions but the most relevant on this topic appear in paragraph 68 where he says:-

   “Although [the father] denied that he had been violent, abusive or intimidating towards [the mother], there were a number of features in his presentation and the information he provided, that were consistent with [the mother’s] account. …”

   Further, in paragraph 69, Mr P reports:-

   “[the father’s] multiple breaches of the Intervention Order in 2008 are of significance.  They indicate that [the father] has had considerable difficulty in effectively regulating his own emotions and behaviour. …”

5. Earlier Mr P summarised the views and experience of the children in paragraph 65 where he says:-

   “Each of the children gave an account of [the father] frequently behaving in violent, intimidating and abusive ways towards them and [the mother] over an extended period of time prior to separation.  They each provided information about events they said they had experienced or witnessed with a level of detail consistent with authentic reported memory.  The children all expressed their strong fear of [the father] in a manner which appeared to be authentic, and congruent with their emotional states in interview.  While each of their accounts were internally consistent, and the accounts were consistent with each other, some different detail was provided by each child, and each of the accounts was individually expressed in ways that was consistent with that child’s age and stage of development.”

   He then further recounted in summary form the mother’s experience in that regard (paragraph 66):-

   “[the mother] also provided an account of experiencing long term violence abuse and intimidation by [the father] that was sometimes witnessed by the children.  Her account was also consistent with the accounts provided by the children about their experience, while she also acknowledged that she had limited knowledge of the children’s experience of [the father] prior to separation.”

   In that same paragraph, Mr P observes:-

   “It is not uncommon for victims of serious domestic violence to endure their circumstances until they perceive that their children are also at serious risk, and then act immediately to protect children.  [The mother’s] decision to immediately separate from [the father] following [B’s] disclosure of sexual abuse by [the father] appears to be consistent with that pattern.”

6. It is important in matters like this for the Court to consider whether or not the children have been alienated from their father by the primary care parent.  That issue is also addressed by Mr P and he summarises his views in paragraph 67 in this way:-

   “There was no indication in the presentation of any of the children or of [the mother] during interviews that the children had been ‘brainwashed’ or coached in the formation or expression of their views.  All of the information they provided and the manner in which they provided it was consistent with that of people providing information about their actual experience and their independently held views.  It is very unlikely that six children of different ages and stages of development could be successfully coerced or coached to provide a false but coherent and integrated account of their past experience, without it being evident in interview.”

   For those reasons alone, in my view, it would not be appropriate presently for the Court to attempt to develop any meaningful relationship between the father and the children. 

7. Mr P, in his final conclusions and recommendations suggests that some counselling for the children may be appropriate in any event, but certainly in the event that the father pursued his wish to have a relationship with his children in the future.  However, the precondition identified by Mr P was that the father would have to acknowledge his violence and abuse before any progress could be made.  That has not been evident at any stage of the proceedings and the father’s non-appearance both at the mediation conference this morning and the hearing this afternoon suggests that he does not intend to present anything to the Court to contradict the other information the Court has  and to which I have now made reference.

8. I also need now consider the “additional” considerations and the first of those is:-

(a)any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's wishes;

Those views are clear from Mr P’s report and they are summarised by him in paragraph 70 as follows:-

“All of the children expressed the clear and strong wish not to spend time with or communicate with [the father].  They all conveyed that they are frightened of him and what he might do.  The information they provided to support their expressed wishes was relevant and appropriate.  No information was obtained from them to indicate that it would be beneficial for them to have contact with [the father] at present. ….”

1. The next sub-paragraph requires me to consider:-

(b)the nature of the relationship of the children with:

(i)each of the children's parents; and

(ii)other persons (including any grandparent or other relative of the children);

1. I have already made reference to the excellent relationship the children have with their mother as recorded by Mr P in his report.  She has singlehandedly undertaken the care of those children for the past two years and from all reports, has done an excellent job in that regard.  As I have also iterated earlier in these reasons, there is no relationship between the children and the father worthy of mention or indeed, worthy of encouragement presently unless the father recognises the serious errors of his previous ways and makes some attempts to address his conduct and attitude in that regard.

(c)the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;

1. Again, I refer to the intimation from Mr P that there is no evidence here that the children have been coached or coerced by the mother.   The children’s views are their own views and are based on unpleasant experience and very sound reasoning.  There is thus no issue of the mother’s unwillingness to encourage a relationship because of the experience earlier referred to.  As to the father’s willingness and ability, his failure to attend the mediation conference this morning and the hearing this afternoon, together with his refusal to acknowledge any adverse conduct on his behalf suggests that he is unable to demonstrate the necessary willingness and ability to support his own relationship with the children or indeed encourage a close relationship between the children and their mother.

(d)the likely effect of any changes in the children's circumstances, including the likely effect on the children 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;

1. Clearly on the information before the Court, any separation of the children from their mother would have a devastating effect upon them.  Mr P has indicated that if there was any prospect of the children enjoying a relationship with their father in the future, then both he and the children would need to undertake some very serious counselling.

(e)the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This sub-section too is relevant here.  The parties live some 800 or 900 kilometres apart, the mother being resident in the Adelaide environs and the father in Victoria.  Thus even if there was legitimate reason for relationships to be encouraged between the children and the father the tyranny of distance would provide an obstacle as well.

(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;

1. Mr P speaks in very flattering terms of the mother’s role in that regard and it can be inferred from all of the material I have seen that she is doing an excellent job in providing for the children’s needs in those areas.  The father’s capacity though is highly questionable because of the issues of violence that clearly would not support the children’s emotional needs.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;

and

(h)if the children are Aboriginal children or Torres Strait Islander children:

(i)the children’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;

1. These sub-sections are not relevant for my determination.

1. the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

1. In my view, it is not necessary to iterate any further reasons under this sub-section.  I have adequately covered this particular issue in my treatment of the earlier sub-sections.

(j)any family violence involving the children or a member of the children's family;

and

(k)any family violence order that applies to the children or a member of the children's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. I have already dealt with these sub-sections in my treatment of the “primary” considerations earlier in these reasons. They are particularly relevant considerations here and quite clearly the very reasons why the children want nothing to do with their father at the present time.

(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 children;

and

(m)any other fact or circumstance that the court thinks is relevant.

and

1. 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.

2. In my view, sub-sections (l), (m) and (4) are of no further assistance to me in reaching the conclusions that I have.

3. For all the above reasons, in my view it is appropriate to order that the children live with the mother and that the father spend no time with them presently unless and until he addressed the issues identified by Mr P.

4. I need though also to consider the provisions of Section 61DA which creates the presumption of equal shared parental responsibility.  However, as sub-section (2) states, the presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of the children, or indeed family violence.   Sub-section (4) also records that the presumption can 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 children.

5. On both of those bases, it is inappropriate, in my view, for the presumption to stand.  The issues of family violence alone are sufficient reason for me to order that the mother have sole parental responsibility for the children.  Having made that determination, it is not necessary for me to consider Section 65DAA of the Act.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  19 May 2010