Daban and Jeffby

[2013] FamCA 266

FAMILY COURT OF AUSTRALIA

DABAN & JEFFBY [2013] FamCA 266

FAMILY LAW – CHILDREN – Interim Parenting – Where the mother sought orders in relation to the child  – Consideration of the best interests of the child – Where the father was not present in court – Consideration of 60CC factors – Where, on the evidence before the court, it was determined that the child live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss: 60CC; 61DA; 65DAA

APPLICANT: Ms D Daban

RESPONDENT: Mr Jeffby

FILE NUMBER: SYC 717 of 2013

DATE DELIVERED: 8 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 8 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. That the Orders made on 25 January 2011 be discharged.

2. That the mother have sole parental responsibility for the child R born on … October 2005 (“the child”).

3. The child live with the mother.

4. The child spend no time with the father.

5. At no time is the child to be permitted to be in the company of the paternal aunt Ms J, Ms J’s partner known as “…”, the paternal grandmother Ms C or the paternal grandfather Mr R.

6. That the child attend counselling by an appropriately qualified expert until such time as that expert determines that treatment is no longer necessary, with the cost of the child’s attendance on the counsellor to be paid in equal half shares by the mother and the father.

7. Pursuant to section 68L(2) of the Family Law Act 1975 (“the Act”), R born on … October 2005 (“the child”) be independently represented and it is requested that Legal Aid Commission of New South Wales, PO Box K847 Haymarket arrange such separate representation and:

   (a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;

   (b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents filed to date in these proceedings by the party together with all existing orders and copies of any relevant reports; and

   (c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

It is further ordered

1. The matter is listed for a callover before me at 2.15 pm on 6 May 2013 for directions or for the fixing of a date for an undefended hearing.

2. I direct that by close of business on Thursday, 11 April 2013 the wife cause a copy of these orders to be sent to the husband by means of registered post.

3. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daban & Jeffby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 717 of 2013

Ms D Daban

Applicant

And

Mr Jeffby

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. Ms D Daban (“the mother”) seeks orders in relation to the parenting of her daughter, R (“the child”) born in October 2005. 

3. The mother was born in 1983 and is 30 years old. 

4. The respondent who is the father of the child, Mr Jeffby, (“the father”) is presently 32 years old. 

5. The Initiating Application filed by the mother on 14 February 2013 seeking final and interim orders, copy of the affidavits relied upon today, and a Notice of Child Abuse, Family Violence or Risk of Family Violence and court brochures were served upon the father on 20 February 2013 by a process server.  There is evidence that those documents were later left with the mother’s mother in a semi-burnt condition by some person. 

6. The parties met in April 2005 and the mother gives some evidence that for the first three years of their relationship there was a degree of family violence and drug use. 

7. As I have said, the child, R, was born in October 2005. 

8. The parties separated in late 2008 when the child was then two years and 10 months old.  The evidence of the mother was that she separated from the father due to his excessive drinking, his smoking of marijuana and his verbal abuse.

9. On 25 January 2011 the parties entered into consent orders in this Court pursuant to which it was ordered that the parents have equal shared parental responsibility for the child, that the child live with the mother and the child spend time with the father, generally, every second weekend from 4.00 pm on Friday to 4.00 pm on Sunday. 

10. In 2011 the mother made an application for an Apprehended Domestic Violence Order against the father.  The relationship between the parties seemed to deteriorate further later in 2011.  There seems to be evidence that, at that time, the child was exposed to some sort of violence when in the presence of the father, with the child saying things such as, “she was scared” and “they were hitting him”.

11. On 7 November 2011 a Final Apprehended Domestic Order was made by consent.  The protected persons were the mother and the child.  The application for that order was initially contested but ultimately it was not. 

12. In December 2011 the father met another person and moved in with her on the following day.  Thereafter a series of abusive phone calls took place between the person with whom the father was residing and the mother.  There is evidence thereafter of domestic violence occurring between the father and the person with whom he was residing. 

13. In mid 2012 the mother decided to cease overnight time with the father.  There seemed to be no objection raised by the father at that time to that course. 

14. However, since mid 2012, there were occasions when the child spent time with the father at his parents’ home in their absence.  She made comments to her mother to the effect that, “They have white powder on a DVD and they play with it with a card.” 

15. In late 2012, the father pleaded guilty to breaching the Apprehended Domestic Violence and was fined. 

16. Towards the end of 2012, the mother decided it was not appropriate for the child to spend time with her father at his home because of concerns about her welfare.  It was agreed between the parties that the father would visit the maternal grandmother’s home and would take the child to the park opposite or otherwise play with her in the lounge room.  He would also take her to the beach. 

17. At Christmas 2012, the child told her mother that she was scared about being left alone on the beach whilst her father surfed.  She described to her mother seeing bongs and other equipment for smoking marijuana when with the father.  On Christmas Eve of 2012 the father was due to have time with the child but she did not want to go.  That led to a loud telephone fight between the parties. 

18. Between 26 December 2012 and 7 January 2013, the father sent a large number of abusive and disturbing text messages which are annexed to the mother’s affidavit. 

19. Again, in January 2013, I understand that the father was dealt with for breach of the Apprehended Domestic Violence Order and, on 17 January 2013, a new Interim Apprehended Domestic Violence order was made.  That order was made final in March 2013.  The protected persons are the mother and the child. 

20. The genesis of the problem seems to be that the mother has formed a relationship with a new person which the father is taking very badly.

21. The evidence satisfies me that the father is behaving in a threatening and violent way to the child.  It is evident from the affidavit of the mother and also from the affidavit of her mother that the child has been exposed to that violence.  There is also evidence that she has been exposed to pornography and drugs whilst in the presence of the father. 

Relevant law

1. Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that 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. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

2. The evidence satisfies me that by reason of the drug use, pornography and violent behaviour, there are reasonable grounds to believe that the father has engaged in abuse of the child and also in family violence.  The text messages, in particular, are quite stark and disturbing.  I also take into account the two Apprehended Domestic Violence Orders that have been made and the breaching of those orders by the father. 

3. Section 65DAA(1) is not relevant because I have found that the presumption in favour of a shared parental responsibility of a child does not apply.  Therefore, the position is, I am at large to make whichever order I consider to be appropriate in all of the circumstances. 

Section 60CC factors

1. It is necessary, therefore, to consider the matters that are raised by s 60CC of the Act. These are as follows.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. For the reasons I have just given, this is not likely with the father at this stage. 

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There is a history, as I have said, of violence.  There is evidence of exposure to drugs and pornography whilst in the presence of the father.  The father has breached the Apprehended Domestic Violence Orders which were put in place, not only for the benefit of the mother but also the benefit of the child. 

2. I am satisfied that there is a risk to the child of physical or psychological harm from being exposed to abuse and neglect or family violence whilst in the presence of the father. 

3. They are the two primary factors that the Court must take into account but there are also a number of secondary factors which must be taken into account and these are as follows.

Section 60CC(3)(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

1. The child is young; she is only seven years old.  There is some evidence that she does not want to see her father.  Whilst that may not be surprising given what she, perhaps, has seen and heard, I do not place a great deal of weight on her views given her age. 

Section 60CC(3)(b) – the nature of the child’s relationship with each of the parents and other persons

1. The mother has been the child’s primary carer.  The father has not had overnight time with the child since the middle of last year and has recently had a very limited time with the child.  There is no evidence to think otherwise then that the child has a very good relationship with her mother and the evidence also establishes that she has a good relationship with her maternal grandmother.  The same cannot be said of the relationship with the father or his parents as set out, particularly, in the affidavit of Ms S Daban.   

Section 60CC(3)(c) – the extent to which each of the parents have taken the opportunity to participate in decision making about major long term issues in relation to the child and to spend time with and communicate with the child

1. There is evidence that, notwithstanding, the Apprehended Domestic Violence Orders that have been in place the mother has taken steps for the child to spend time with her father.  He has not always been available to spend time with her.  That ceased in late December because, according to the mother, the child did not want to go. 

2. After the threats of violence occurred over the New Year period in 2013, the father has not seen the child.  There has been some communication with the child through phone and text messages and the police, at one stage, required there be communication with the father. 

3. The evidence of the mother is that the child finds this distressing.  Whilst there is evidence, therefore, that the father wishes to spend time with the child to communicate with her, I am of the opinion that that communication is sometimes inappropriate and conducted in inappropriate circumstances.

4. He has not participated in major long-term decisions for the care of the child. 

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The child is being maintained by her mother.  There is no evidence of any support by the father. 

Section 60CC(3)(d) – the likely effect of any changes to the child’s circumstances including any likely effect on a child from separation from her parents

1. The evidence of the mother is, at present, that the child finds communication with the father and the difficulties arising between the mother and the father, stressful and difficult to deal with.  There is evidence that the father has attempted to persuade the child that his threats were all the fault of the mother and her new partner.  The child has even sought to assuage the father that the mother will not marry the new partner.  It seems to me, in those circumstances, that at least on an interim basis, the likely effect of any separation of the child from her father is at least, in the short term, likely to be beneficial. 

Section 60CC(3)(f) - the capacity of each of the child's parents; and 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

1. The evidence satisfies me that the mother and her mother, in turn, are caring appropriately for the child and dealing with her emotional and intellectual needs appropriately. 

2. The same cannot be said for the father and paternal grandparents.  There is evidence, as I have said, of significant threats of violence by the father, drug taking and pornography use whilst involving his parents as well. 

3. I, therefore, find that the mother has appropriate capacity to care for the child including her intellectual and emotional needs and that that far outweighs the father’s.

Section 60CC(3)(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

1. The mother seems to be able to provide the child with a stable and loving home.  The evidence discloses that the father does not.  The mother proposes that an order be made for the child to have counselling and agreed that she would benefit from that.  The mother obviously has an appropriate attitude towards the responsibilities of parenthood and although, at times in the past, the father has attempted to do so, it is quite clear that since he moved onto his most recent relationship that his lifestyle, as also submitted by the mother’s solicitor, is chaotic and violent.  The evidence seems to be that the father loves the child but, at this stage, his violent and aggressive behaviour towards the mother and her new partner are causing great difficulties with that being shown appropriately. 

Section 60CC(3)(j) & (k) – any family violence or inferences that can be drawn from a family violence order

1. I need to address the issues of family violence as required by s 60CC. I have discussed those above.

2. The other matters that are required by s 60CC do not seem to me on the present application to be relevant.

Discussion

1. I am satisfied that it is appropriate that the respondent mother have sole parental responsibility for the child on an interim basis.  The father is obviously having severe difficulties coping with the mother and her new partner and is aggressively threatening significant violence towards them in a troublesome way.  Not only have a series of Apprehended Domestic Violence Orders been made, the evidence is that on at least two occasions, he has breached those and been dealt with by the Court for doing so. 

2. It is not appropriate that the father and mother be brought into the contact that is necessary for there to be shared parental responsibility and it is appropriate, in my opinion, that she have sole parental responsibility for the child and that the child live with her. 

3. The issue is then what time should the father have with the child.  There has been no significant time since December last year and no time at all since early this year.  There is obviously a real difficulty with the father approaching the mother for the purpose of time being spent with the child and collecting the child.  There is evident that the child is fearful of her father which, in the circumstances, is not surprising.  I am of the opinion that, at present, the only appropriate means of time being had by the father with his daughter would be for there to be some form of supervised time in an appropriate contact centre.  However, the father has not appeared today and is not proposing that.  If he were do so, there would need to be some evidence that that time would be spent in an appropriate way in the interests of the child.

Conclusion

1. I am satisfied, on an interim basis, that it is in the best interests of the child, at present, to have no contact with the father.  And that, accordingly, there will be no orders that he spend time with her but rather an order that he be restrained from having contact with the child. 

2. Orders are also sought on an interim basis that there be no contact with the paternal aunt, the paternal aunt’s partner, and the parental grandparents.  Given the evidence of their involvement in an inappropriate behaviour in the presence of the child, I see those as appropriate interim orders.  It is also appropriate to appoint an Independent Children’s Lawyer.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 April 2013.

Associate:     

Date:              19 April 2013