Dome & Thorpe

[2009] FamCA 161

FAMILY COURT OF AUSTRALIA

DOME & THORPE [2009] FamCA 161

FAMILY LAW – PRACTICE AND PROCEDURE – first day of trial – where father failed to provide parenting questionnaire and failed to attend or arrange for someone to attend on his behalf – where numerous attempts made to contact the father – matter to proceed undefended

FAMILY LAW – CHILDREN – with whom children live and spend time – parental responsibility – where father has a history of psychiatric illness and is in the mental health section of a medical facility – where domestic violence order against the father – where the father has not seen the children for two years – oral application by mother seeking sole parental responsibility – consideration of s 60CC factors – need to protect the children from risk of psychological harm – mother to have sole parental responsibility – children to live with the mother – no order made for children to spend time or communicate with the father

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

APPLICANT: Mr Dome

RESPONDENT: Ms Thorpe

FILE NUMBER: ADC 2927 of 2007

DATE DELIVERED: 2 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr N. Eid

SOLICITOR FOR THE RESPONDENT: Catherine Leis

Orders

IT BEING NOTED that there is to be no order for the father to spend time with or communicate with the children.

1. All previous orders in relation to the children are discharged.

1. The mother have sole parental responsibility for the children S born on the … June 1996 and C born on the … April 1999 and that both children live with her.

1. All current proceedings before the Court are dismissed and all matters removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 2927 of 2007

MR DOME

Applicant

And

MS THORPE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me under the Less Adversarial Trial process for the first day of trial.  It concerns the welfare of the two infant children of the parties.  The mother is Ms Thorpe and the father is Mr Dome.  The children concerned in these proceedings are the children of the parties' marriage:  S, who was born in June 1996 and C, who was born in April 1999.

2. The matter has been before the Court, in this particular set of proceedings, since the father brought proceedings in June 2007.  The matter progressed through the normal process.  Certain interim orders were made.  The matter was listed for a directions hearing before a registrar of the Court, and directions were made for the parties to file a parenting questionnaire.  The mother has filed her parenting questionnaire, which is before me, but there has been none received from the father.  On 21 January 2009 his solicitors filed a Notice of Ceasing to Act.

3. The matter came on before Registrar Dore on 19 February 2009, when there was no appearance by or on behalf of the father.  As a result, a letter was sent to the father care of his last known address.  That letter is dated 19 February 2009 telling him that the matter was listed before me this afternoon at 2.15 and advising him that, if he did not attend and/or file the parenting questionnaire as ordered, the Court may proceed to make default orders in his absence.  The father has been called several times today and is not in attendance, nor is there anyone representing him.

4. An explanation for that arises, probably, from the evidence I have heard today from the mother.  However, in view of the father's failure to attend to the parenting questionnaire and failure to attend before me today, or arrange for anyone to attend on his behalf, I have proceeded to hear this matter in default of that failure and on an undefended basis.

5. I have heard the evidence of the mother today, in the witness box.  I also heard submissions from counsel appearing on her behalf, Mr Eid.  The summary of the material is that the parties were married in 1994 and have two children by that marriage:  S, who is now 12 and C, who is now aged nine.  The parties separated in 2002 and were subsequently divorced.

6. The submissions on behalf of the wife indicate that for a number of years - approximately four years - arrangements were agreed such that the father saw the children approximately two nights a week.  However, difficulties arose in relation to the father's mental health.  Subsequently, there have been difficulties in the father's behaviour such that he has not regularly spent time with the children for at least the last two years.

7. I have before me both the mother's questionnaire and her oral evidence this afternoon, as well as an affidavit of the mother filed on 30 June 2007, to which is annexed the original domestic violence order and her statement of witness made in 2004, concerning the father's behaviour.  The mother's evidence is that the domestic violence order was confirmed and continues to this day, and that there have been numerous (approximately 10 or a dozen) breaches of that domestic violence order since it was made in 2004; only a few of which the mother has reported to the police.

8. Also before me, and referred to by counsel for the mother, is the affidavit of Ms Duncliffe, the former solicitor for the father, to which is annexed a report of a psychiatrist, Dr O, dated 5 November 2008, which sets out part of the history of the father's psychiatric illness.  It confirms that orders were made in June 2008, by the Guardianship Board of South Australia, placing the father under a community treatment order. The diagnosis of Dr O was to confirm the previous diagnosis of another psychiatrist, namely that the father was suffering from a schizo-affective disorder and required ongoing treatment at the time.

9. The mother's evidence is that, as far as she is aware, as of December 2008, the father was again in the mental health section of the F Medical Centre.  She believes that he was originally detained by the police and placed under a mental health order.  It appears also that, notwithstanding orders that this Court made for the father to spend supervised time with the children, the father did not take advantage of that more recent order and has therefore not seen the children for the last two years.

10. It is not clear from any of the information available to the mother when there is to be a further diagnosis of the father and what his prognosis is, but it appears that it is possible that he will continue to be detained under a mental health order, or at least resident in the mental health section of F Medical Centre or a similar institution, for a considerable period of time.

11. I have also taken into account the family report which was prepared in October 2007, which recommended that certain steps be taken to see whether the supervised sessions would improve the relationship between the children and their father.  Although those steps were taken by the Court, the father did not avail himself of that opportunity.

12. The children are now 12 and 9 and have, on the evidence of the mother, been witness to several episodes of serious concern, which would have considerably affected their relationship with the father and their view of the father and his mental health.

13. Although this matter is an undefended matter, I am still required to take into account the provisions of the Family Law Act and in particular Part VII, that being the Division of the Family Law Act that deals with the best interests of the children. 

14. The Act prescribes a presumption of equal shared parental responsibility.  Initially the mother sought that there be an order for joint parental responsibility. 

15. Today, however, I have been asked to allow her to proceed on an oral application for sole parental responsibility.  In the unusual circumstances of this case, I am prepared to entertain that oral application and indeed make the orders sought. 

16. The presumption of equal shared parental responsibility set out in section 61DA is, however, capable of being rebutted if the Court is satisfied that it would not be in the best interests of the children for the children's parents to have equal shared parental responsibility for the child.

17. On the evidence before me, even if the mother had not made an oral application for sole parental responsibility, the Court would have been inclined to make that order of its own motion, taking into account the evidence of concern about the current mental health of the father.

18. His mental health and the history presented to me today about the father's current medical situation make it not in the best interests of the children for the parents to have equal shared parental responsibility.

19. If the father's mental health improves, that would not necessarily be an answer to the question of sole parental responsibility or shared parental responsibility because of the obvious difficulties that the parties have in negotiating and discussing what might be in the best interests of the children. 

20. The information upon which the domestic violence order was based and the evidence of the mother about the father's breaches of restraining orders indicate that this is one of those matters where the breakdown in the relationship between the parents means that it is in the best interests of the children that the mother have sole parental responsibility for the children. I propose to so order.

21. At the moment the children have been residing primarily with the mother since the separation of the parties in 2002 and have spent some time, by agreement with the mother, with the father.

22. I am satisfied, therefore, that if the father's behaviour and his health improve, the mother will consider what is in the best interests of the children so far as a future relationship with the father is concerned.

23. I am required, of course, to consider those matters which are set out in section 60CC of the Family Law Act when determining what is in the best interests of the children.  One of the factors, which is described as a primary consideration, is the benefit to the children of having a meaningful relationship with both parents.  I have to balance that benefit (which is usually the case) off against the evidence which I have heard about the father's difficulties.  Currently there are significant factors which prevent the children from having a meaningful relationship with their father; those significant factors being the father's past behaviour, their concerns about his past behaviour and his current mental health issues.

24. The other primary consideration is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

25. Again the evidence of the mother, the evidence that the father suffers from a schizo-affective disorder and the material before me as to the children's attitude towards the father, mean that it is in the children's best interests that they be protected from that risk of psychological harm.  This requires that they live with the mother and not spend any time with, or having contact with, the father unless the mother is satisfied that it would be in their best interests to do so.

26. The children have expressed views in 2007.  In the circumstances of this case I do not place particular weight on those views because of the difficult history the children have experienced.  However, I have also taken into account the nature of the relationship they have with each of their parents, and the willingness and ability of the mother to encourage a relationship with the father when his health has permitted that to be appropriate.

27. I am satisfied that the attitude the mother has taken as to her responsibilities as a parent has demonstrated that this attitude is appropriate.  Namely, that when he has been well enough the father has been permitted to spend time with the children, but that when it is necessary to protect the children from any harm, the mother has taken steps to ensure that is the case.

28. I also take into account the subsections of section 60CC, which specifically relate to the question of family violence. In this particular case, I am satisfied that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs. It is not at all clear from the evidence before me that the father has the capacity to provide for the children in any way, due to his mental health difficulties.

29. Subsection (l) of section 60CC encourages the Court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. In this matter, I think a final order in which the mother has sole parental responsibility for the children and an order directed that the children live with her would achieve that result, particularly as I propose to also have it noted that there is no order made for the children to spend time with, or communicate with, the father.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  12 March 2009