Dobbin and Burns

[2018] FamCA 599

FAMILY COURT OF AUSTRALIA

DOBBIN & BURNS [2018] FamCA 599

FAMILY LAW – CHILDREN – Application by father seeking parenting orders that child live with him – Orders that child live with the father – Orders that child spend time with the mother as agreed between the parents – Orders that child communicate with the mother – Orders that parents have equal shared parental responsibility for the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Dobbin

RESPONDENT: Ms Burns

INDEPENDENT CHILDREN’S LAWYER: Ms Gibson

FILE NUMBER: HBC 127 of 2010

DATE DELIVERED: 26 July 2018

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 26 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Higgins

SOLICITOR FOR THE APPLICANT: Bishops

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gibson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Charmaine Gibson

Orders

1. Mr Dobbin (‘the father’) and Ms Burns (‘the mother’) shall have equal shared parental responsibility for child X born … 2007 (‘the child’).

2. The chid shall live with the father.

3. The child shall spend time with the mother as agreed between the mother and the father.

4. The child shall communicate with the mother as is agreed between the mother and father.

5. The family report dated 12 June 2018 be released to:-

   (a)the child’s social worker at B Group with a direction that the report be destroyed once the child ceases attending B Group; and

   (b)to any other mental health care professional having a therapeutic relationship with the child provided there is a direction that the family report is to be destroyed once the child ceases any therapeutic relationship with the health care provider.

6. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

7. All extant applications be dismissed.

IT IS DIRECTED

1. All exhibits remain on the court file.

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBC 127 of 2010

Mr Dobbin

Applicant

And

Ms Burns

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Mr Dobbin (‘the father’), and Ms Burns (‘the mother’) relating to parenting arrangements for their daughter, X (‘the child’), who is about to celebrate her 11^th birthday.  The father seeks an order that the child live with him and that he and the mother have equal shared parental responsibility for the child.  Further, he seeks orders that the child communicate with the mother and spend time with the mother as arranged between the parties.  Finally, he seeks an order that the family report be released to the child’s social worker at B Group with a direction the report be destroyed once the child ceases attending B Group.

2. These proceedings were commenced by an application filed 10 July 2017 in circumstances where the child, essentially of her own volition, decided to come into the care of her father.  The mother filed a response on 30 August 2017 and in that response sought orders that the child live with her.  The mother has not attended today notwithstanding that the matter was listed for a possible undefended hearing.  The mother, as will be seen from the evidence to which I will refer, has at times engaged in these proceedings and at times has not engaged in these proceedings. 

3. Until earlier this month, the mother was represented by a solicitor.  There is evidence before me that the solicitor was made aware that this matter was listed for a possible undefended hearing today, and there is evidence in the form of that given by the Independent Children’s Lawyer that this information has been passed on to the mother.  The mother was called today and has not appeared.  I infer, therefore, that she at this stage no longer wishes to be involved in these proceedings. 

4. It is open for the mother under the orders which are sought to come back to the Court and seek to spend time or communicate with the child, although I note that the legislation[1] and the Rules of the Family Court[2] impose an obligation on the parties to endeavour to negotiate before the matter ever comes back to court.  Given the evidence in relation to the mother’s involvement, which I have drawn from the Court file, the evidence of the Independent Children’s Lawyer, including Exhibit E6, I am satisfied that the mother has been provided with procedural fairness. 

   [1] Family Law Act 1975 (Cth).

   [2] Family Law Rules 2004 (Cth).

5. In terms of the proceedings before me, the father relies upon a series of documents: first of all, his initiating application filed 10 July 2017, together with the notice of risk of abuse that was filed at the same time; his affidavit filed at the same time; and an affidavit filed by his partner, Ms C, on 24 August 2017.  In anticipation of this hearing, the father filed a further updated affidavit of 17 July 2018.  I have read all of that material.  As I indicated, I also had regard to the response filed by the mother and her engagement of legal practitioners up until as recently as this week.  A notice of ceasing to act was filed by Ms Pagett on behalf of the mother on 24 July 2018.

6. Part of the evidence before me was the oral evidence given by the Independent Children’s Lawyer in terms of her interactions with the mother’s lawyer and in terms of her discussions with the child.  I have had regard to that evidence.

7. The father’s counsel tendered a minute of order, which is Exhibit E1, which is similar to the orders that he initially sought.  He now seeks equal shared parental responsibility rather than sole parental responsibility and seeks permission to release the family report to the child’s present therapeutic carer.

8. I have in front of me the Magellan Report dated 10 August 2017, the Child Responsive Program Memorandum of 11 September 2017, the Memorandum to the Court regarding the family report of 9 January 2018 and the family report dated 8 June 2018.  I have the letter from the Independent Children’s Lawyer to Ms Pagett, the mother’s solicitor, dated 12 July 2018 to which I have earlier referred. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (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;

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

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

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

   (c) the extent to which each of the child's parents 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;

   (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;

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

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

   (f)       the capacity of:

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

   (ii)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;

   (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;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child'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;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

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

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (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 child;

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

BACKGROUND

1. The history of this matter is clearly set out by the Family Consultant in her most recent report.  The mother is aged 29.  The father is aged 28.  The father has repartnered with Ms C.  The mother and father commenced cohabitation in about 2006 and separated in about August 2008.  Orders were made by consent in this Court in 2010, the mother having the primary care of the child at that time.  The father lives with his current partner Ms C; and their children D, aged six; E, aged four; F, aged two; and G, whose birthday is coming up.  There is an older child of Ms C, H, who is aged 10 and she lives with her father and spends alternate weekends with Ms C and the father.

2. We are not sure of where the mother lives at the moment as she has had somewhat of an itinerant lifestyle.  The notice of ceasing to act provides an address for her at Suburb J.  Child Safety Services commenced legal proceedings concerning the three younger children of the mother and the mother told the Family Consultant that they had been placed in care.  The mother’s second eldest daughter, K, who is aged nine, lives with her father, who in turn lives with his mother.  I note that the parenting arrangements for the other children are set out in the family report.

3. The father and mother were both aged 17 when they become parents.  When they separated, the subject child was aged one and, as I said, consent orders were made in June 2010.  The child spent little or effectively no time with the father from then until about 2017.  At that time, the mother contacted the father to discuss arrangements so that the child could spend time with him.  The child was retained by the father on a weekend visit in May 2017, which is about a year and two months ago, and she has lived with the father and his family since that time. 

4. Normally, the Court would be concerned about such an arrangement.  However, given all of the evidence before the Court, it is clear why, as a protective mechanism for the child, she remained with the father.  The father, quite properly, commenced proceedings and issues were raised about the child’s safety and wellbeing.  Those issues were amplified by the child protection report and by the other reports. 

DISCUSSION AND CONCLUSION

1. The Family Consultant notes that the father proposes that the child live with him and spends time with the mother as agreed between him and the mother.  The mother proposes that the child live with the father and spends time with her.  The time the child spends with the mother will need to be carefully watched.  The child has been exposed to things to which a child ought not to have been exposed, and I do not intend to repeat those in these reasons.

2. I have read all of the material, and it is clear that if the child remains in the unsupervised care of the mother, at least at this stage, the child is at risk of emotional, psychological, physical harm and neglect.  The child has clearly developed a close relationship with her father and, in many ways, is rejecting her mother.  The father, to his credit, is not opposed to the child spending time with the mother and communicating with the mother, provided it is safe and meets the child’s needs.

3. The child has been exposed to violence between her mother and various partners.  She has moved home and schools many times, and she has not attended school, at least until recently, on a regular basis.  I have before me some evidence from the child’s school, and it is significant that the child is growing positively at the school.  It reflects the environment in which she now finds herself.  Not unexpectedly, the child also is being provided with psychological assistance, and I have a report from B Group Family Relationship Counselling Services.  In that material, the child expresses concerns about fear, worry and her safety because of her lifestyle.  The reporter goes on to observe:-[3]

   If it is deemed suitable for contact to recommence with [the child] and her mother, it would be my recommendation that contact is made slowly to rebuild trust and safety, and be at a neutral supervised environment.

   [3] Exhibit E5.

1. I neither recommend nor condemn supervised time.  That will be a matter for the parents and the child, having regard to the material which I have seen. 

2. In terms of the relevant principles in s 60CC of the Act, there is a benefit in the child having a meaningful relationship with her father and perhaps into the future, if it is safe and if it meets the emotional, psychological and intellectual needs of the child, it may benefit her having a relationship with her mother, but that is to be seen. The main concern in this case is the need to protect the child from the abuse, neglect and family violence to which I have already alluded. I note that this consideration is to be given and has been given precedence and greater weight to that set out regarding the meaningful relationship between the child and her mother.

3. I am satisfied that the child wants to remain in the father’s care at the present time and does not wish to spend time with the mother.  Given her age and maturity, I have given that evidence some weight.  The child had the advantage of an Independent Children’s Lawyer who, to her credit, has seen the child and has adopted a strongly child-focused approach in relation to her. 

4. Unfortunately for this child the decision-making until May of last year was left essentially with the mother and that decision-making was not good.  Unfortunately, the father was not involved in the care of the child in any meaningful way until that time.  Since May of 2017, the decision-making has been with the father and no doubt his partner.  Neither party until May of last year properly fulfilled their obligations to properly maintain the child.  The father has done so since that time. 

5. There is a change in the child’s circumstances, but that change took place in May 2017 and it would not be in the child’s best interests to change them at the present time.

6. In terms of the child spending time and communicating with the mother, the problem with that is the trauma which has been impacted or caused to this child by the mother’s approach to life since the child has been in her care.  So it will be difficult and will need to be thought through, if it happens at all.

7. Since May of last year, the father has shown a significant and strong capacity to care for this child, amongst a tribe, I think “tribe” is the right word, of other children.  From the evidence of the Family Consultant and from the evidence of B Group, that appears to be progressing the wellbeing of the child. 

8. I have had regard to the maturity, gender, lifestyle and background of the child.  I have had regard to the attitude to the child and responsibility of parenthood, demonstrated in some cases, and not demonstrated in others by each of the child’s parents. 

9. The child has been exposed to family violence, to which I have alluded and which is set out in the evidence.  The Court is not aware of any current family violence orders.  This child needs the security of knowing, first, that these proceedings are at an end; and, second, that her current living circumstances are secure.  Having regard to all of that material and having regard to what I regard as the best interests of the child, I intend to make the orders as sought by the father.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 July 2018.

Associate:     

Date:              8 August 2018