Cratterley & Colson

[2008] FamCA 251

FAMILY COURT OF AUSTRALIA

CRATTERLEY & COLSON [2008] FamCA 251

FAMILY LAW – CHILDREN  -  final orders  -  shared parenting

Family Law Act 1975 (Cth) s 60B(1), 60CC(1), s.65DDAA(1) and (2)

FATHER: Mr Cratterley

MOTHER: Ms Colson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 640 of 2006

DATE DELIVERED: 5 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 5 March 2008

REPRESENTATION

THE FATHER: In person briefly and then withdrawing

COUNSEL FOR THE MOTHER: Ms S.C. Dowler

SOLICITOR FOR THE MOTHER: McCarthy Hoey, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms S.S. Buchanan

INDEPENDENT CHILDREN'S LAWYER: Robin Harrison & Associates

Orders

1. That all previous parenting orders and injunctions in respect of the child … born … August, 1999 be discharged and the mother be released from the undertaking given to the court on 31 August, 2006.

1. That the parties have equal shared parental responsibility for the child.

1. That the child live with the mother.

1. That the child spend time and communicate with the father as agreed between the parties. 

1. That the mother be and is hereby restrained by herself, her servants and agents from bringing the child into contact with Mr. N and Mr. R.

1. That the mother ensure that another adult be present at all times when the child is in the presence of the maternal grandmother. 

1. That the statement made by the father at the commencement of the hearing be transcribed and a copy placed on the Court file. 

1. That all extant applications be otherwise dismissed.

1. That these applications be removed from the List of matters awaiting finalisation.

1. That the reasons for judgment delivered this day be transcribed and copies made available to the parties.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES :

1. That the father was present when the case was called, made a statement to the Court but declined to seek any orders or play any further role in the proceedings, and withdrew.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 640 of 2006

MR CRATTERLEY

Father

And

MS COLSON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case concerns the parenting orders that should be made for the parties' son, who was born in August, 1999. He will be nine in August.

1. The child’s father is Mr Cratterley.  He is 35 years old.  He lives in L with his wife, and her two children from an earlier relationship.

1. The child’s mother is Ms Colson.  She is 27 and lives in H, with the child.  The mother has another daughter, T, who was born in March, 1997.  Her father is Mr M. This morning I have made parenting orders, by consent, between the mother and Mr M, which deal with the parenting arrangements for T.  Broadly, those orders implement the recommendations of the family consultant, Ms L, who saw the family last year.

1. The only other person who needs to be mentioned at this stage is Mr N. He was a partner of the mother.  He is 35.  He has two children from an earlier relationship, being a daughter born in September, 1994, and a daughter born in August, 1999.

1. The mother sought orders consistent with shared parental responsibility and that the child live with her. The father did not seek to oppose the mother’s proposal.  In fact, he sought to have no further contact with the child, a subject to which I will refer in more detail later.

1. While the independent children’s lawyer was concerned about aspects of the mother’s proposals, and the father’s refusal to engage with the child, she did not oppose the orders sought.

Legal Principles

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

1. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

1. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

1. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

Background

1. The parents commenced living together in 1998 and the child was born the following year.  They separated around July 2005.

1. Since that time, a number of allegations have been made which relate to the care of the child. It was alleged that, around Christmas 2005, the maternal grandmother was assaulted by her boyfriend, Mr R, after which she almost overdosed, by taking pills. This was alleged to have occurred when the child was in her care, or at least present. It resulted in the child spending the night at the home, with no protective adult presence. Mr R contacted the mother the following day, and as a result, the child moved to live with his father on or about 28 December, 2005. 

1. On 6 January, 2006 the mother filed an application to the Federal Magistrates Court at Melbourne, seeking parenting orders. This was met by a response filed by the father on 13 January.  A notice of address for service of an independent children's lawyer was filed on 14 February.

1. On 2 March, 2006 the Department of Human Services (DHS) provided a written response to an order made in the Federal Magistrates Court pursuant to section 91B of the Family Law Act. DHS had concerns about the mother’s capacity to care for the child if he were to be returned to her, and recommended that any time spent with the mother be supervised. At that stage DHS did not express concerns for either T or the child if they were to remain in the care of their respective fathers.

1. A number of orders were subsequently made.  On or about April 2006 the child returned to live with his mother.  On 7 July, 2006 Ms S prepared a report, which is annexed to an affidavit sworn by her and filed on 8 August, 2006.  That report related to interviews with both T and the child and with the parents of both children.  A number of orders have been made since then, which do not need to be rehearsed.

1. The independent children's lawyer met with the child on 31 May 2007, and had discussions with the father and his sister.  There have been discussions between the independent children's lawyer and protective workers at DHS, with Ms S, and with the manager of child dispute services.  Pursuant to orders made by consent on 1 November, 2007 the mother undertook supervised urine drug screening in late August 2007. It was negative.

1. The matter was then placed in my docket and called over on 29 October, 2007.  At that point it seemed that the father was electing to play no role or a negligible role in these proceedings.  He filed no additional material.  There was reference at that time to the potential for him to be called as a witness in the proceedings between Mr M and the mother. 

1. Another report was provided by DHS, dated 29 February, 2008. I am grateful to the department for that comprehensive report.  It summarises the 12 notifications that have been made in regard to the child since 14 March, 2000.  It must be said that the mother has struggled over much of the intervening time with maintaining a house at a bare minimum level of order.  A number of concerns have been identified.  There has been concern about family violence directed at the mother and, at various times, physical discipline of the child by the mother's then partner, Mr N.  DHS has provided an enormous amount of support and assistance to the family. 

1. The report notes that on 30 January, 2008, the child absconded from his mother's care to his father's residence, taking money from the mother's partner. He had been threatened with being reported to the police for the theft.  When the father contacted the mother to come and collect him, the child again absconded.  At that time the father and his wife advised DHS that he and his wife did not want the child at their house as "it was too much trouble". 

1. DHS workers contacted both the child’s school and his mother on 31 January, 2008.  Workers confirmed that the child was at school.  On 6 February, 2008, DHS contacted the welfare coordinator at the child’s school as the mother had raised some concern about the trauma the child had suffered in relation to his maternal grandmother and his father, and that his behaviour had become “very shocking”.  The counsellor stated that no concerns about the child’s behaviour at the school had come to his attention. He offered to organise counselling through the school for the child.  He also advised that the child receives assistance through a speech pathologist to assist with his verbal and comprehension skills.

2. On 7 February the father contacted DHS complaining that the child had been running away to his house and that he had become "a monster".  He complained the child was stealing things, bringing stolen bikes to his house, and that he did not want him around "his children". That, I take it, was a reference to his step-children.  Notwithstanding his apparent abdication from responsibility for the child, he expressed concern that the mother was not monitoring the child and did not know where he was.  He denied that his wife had ever hit the child, which was one of the allegations made in the proceedings. He advised that he did not want to fight any more about such allegations.

1. On 13 February, 2008 a report was received by the After Hours Child Protection Emergency Service that a family violence incident had occurred the night before between the mother and Mr N. The mother also contacted DHS that day and discussed the incident, reporting that she had her arm in plaster and had received a black eye; that police had attended the house and would be charging Mr N.  She admitted that the child and a daughter of Mr N were present during the incident and were very upset, and that the child had tried to help his mother.  She also disclosed other incidents of violence on 11 and 12 February.  As the mother reported that she had asked Mr N to leave the home, DHS accepted that this would reduce the child’s exposure to further emotional and physical harm.  The mother also advised DHS that she had sought that an intervention order be taken out on behalf of herself, the child and T. 

1. When a worker spoke with the mother in person she was observed to have significant bruising and swelling around her right eye and cheek.  Her right arm was in plaster to the elbow. She advised of bruises to the back of her thigh.  She told DHS that she would be changing her phone number and cancelling all contact with Mr N and that she would ensure a no-contact condition was included on an intervention order. She advised that she would also be seeking domestic violence specific counselling for herself and the child.

1. Subsequently, an anonymous person contacted DHS alleging that, notwithstanding a court order relating to the maternal grandmother's contact with the child, the mother was allowing the child to have contact with her.  The child was interviewed on 26 February, 2008 by protective workers;  the writer noted :

   [The child] informed the DHS worker that his mother’s partner [Mr N] had physically disciplined him on a number of occasions and that he did not want to have contact with [Mr N] now or in the future.

1. This morning the father was present at court when the matter was called.  He told me his wife was with him.  He said he wanted to say something to the court, but not to play any part in the proceedings.  I allowed him to say something and a copy of the transcript of what he said is attached to these orders. 

1. The father commenced by saying he wanted to know why the mother had been lying so much and making allegations against his wife.  He complained about DHS decisions.  He said that court orders and any agreements made with DHS were "not worth the piece of paper they were written on"; that the mother had lied when she said that her relationship with Mr N would not continue or that Mr N was not living at her home.  He referred to a document the mother had signed which said she could be charged with perjury, if it were untrue.  That is a standard attestation on a police statement. While I am not absolutely sure what that document is, it well may have been a statement made to police arising from one of the numerous allegations in this case.

1. The father complained that the child had been running away from home, was stealing at school and was given no rules or regulations by his mother. He alleged that the child had been doing “lots of stuff” for which he had not been caught.  He said that he was going to turn into someone like all the rest of the mother's family. He made no secret of his contempt for the other members of her family. He said the mother was fine sometimes and abusive at other times.  She would not abide by orders, and he was critical of her conduct in relation to T.

1. When I endeavoured to encourage the father to seek orders, whether for the child to live with him or to see him, and to stay and be involved in the proceedings and, for example, cross-examine the mother, he declined to do so.  It was at that point he said that the only thing he was worried about was if the child came to his place;  what if his property was stolen?  He was concerned that allegations that would be made about the child being abused, and about the child’s owns abusive language and behaviour.  He said he did not want his wife's kids to turn out like the child, that he had given up hope for the child, and that he was "just another kid on the DHS books for the rest of his life".

1. This court deals with many people who cannot afford to employ lawyers and who are not eligible for legal aid.  The father spoke of spending money on solicitors' expenses and I accept that he has done so.  It was clearly open for him to do what many parents do in those circumstances, which is engage with the proceedings with the help of the independent children's lawyer and the court, cross-examine witnesses, make submissions and have a voice in the future of their children's lives.  For whatever reason, the father has decided not to do that.

1. In terms of allegations he makes relating to T I need to bear in mind the orders that I have made, by consent, between Mr M and the mother, orders made with the support of the independent children's lawyer in that case. 

1. The mother does not seek an order other than for equal shared parental responsibility.  I have some concerns about the practicability of that, although it is probable that most decisions in relation to the child are going to be day to day matters, which will fall within the ambit of the person with whom the child lives.  The father has not sought to oppose an order for residence with the mother. 

1. The mother seeks that the father spend time with the child, as agreed by the parties.  The father's position before me was consistent with an intent to have nothing to do with the child.  That is very sad, having regard to the child’s remarks to the protective worker (on 26 February) where he expressed apprehension about speaking about his father;  he said he wants to see his father ‘heaps’ and “as much as he can, because he misses him”. It was reported that he said he didn’t want to say too much “as the last time I got taken off my dad, because I said too much”.  This reported discussion is particularly sad, having regard to the emphasis the legislation places on the importance of children having a meaningful relationship with both parents.  However, this is a court of private law, unlike the Children's Court.  This court cannot compel a parent to spend time with a child, or to act responsibly.  The father has made a decision, for reasons known only to him.  Those advanced to me do not seem adequate.  In those circumstances, the court cannot compel him to engage with the proceedings or seek other orders.

1. On 31 August, 2006 orders were made which restrained the parties from bringing the children (that referred to T and the parties’ child) into contact with Mr N, the maternal grandmother or Mr R (the maternal grandmother’s de-facto partner).  Mr N I have already referred to. I have also referred to the concerns of both DHS and the independent children's lawyer, which would have prompted that order.  The mother has now taken steps to protect herself and her children from Mr N. She does not oppose an order that she not bring the child into contact with him.  Mr R is currently in gaol and is not due for release until 2009.  She does not oppose an order that she not bring the child into contact with him.  She would seek to be able to bring the child into contact with her mother, provided that she is present.

1. The allegations which gave rise to the order relating to the maternal grandmother were not of abuse of any direct sort at the hands of the maternal grandmother, but of behaviour which resulted in the child being left unsupervised by adults.  The court has to be realistic, both about the limits of its supervisory jurisdiction and the need for parents to have support from extended family.  I have taken into account the importance of protecting children from potential physical and emotional harm. I do propose to enjoin the mother from bringing the child into contact with Mr N and Mr R, but not in relation to the maternal grandmother, so long as another adult.

1. The court does not have before it any current evidence from the father, save the assertions he made from the bar table.  I take those into account, insofar as I can. However, based on the evidence before me, including the very comprehensive DHS report, I am satisfied that the best the court can do, in endeavouring to foster the best interests of the child, is to make orders broadly as sought by the mother. 

I certify that the preceding
35 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.