Elton and Batey-Elton (No. 2)
[2009] FamCA 784
•24 August 2009
FAMILY COURT OF AUSTRALIA
| ELTON & BATEY-ELTON (NO. 2) | [2009] FamCA 784 |
| FAMILY LAW – CHILDREN – Parenting dispute – Undefended proceeding after wife refuses to continue to participate upon refusal of Court to grant adjournment |
| Family Law Act 1975 (Cth) |
| Brown v Brown [2004FamCA 1067 Fortnum & Fortnum (No. 3) [2008] FamCAFC 133 MG and MG (2000) FamCA 893 Pitken and Hendry (2008) Fam CA 186 Tate v Tate (2000) FLC 93-047 |
| APPLICANT: | Mr Elton |
| RESPONDENT: | Ms Batey-Elton |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| DATE DELIVERED: | 24 August 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 24 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR PAGE SC |
| SOLICITOR FOR THE APPLICANT: | ROD MADSEN SOLICITOR |
| THE RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR MCGREGOR |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | FOREST GLEN LAWYERS |
Orders
That the any response filed by the wife seeking parenting orders is dismissed.
That the husband have leave to proceed with his application for final parenting orders in the absence of the wife.
That all previous parenting orders are discharged.
That the husband have the sole parental responsibility for the child S, a daughter born … May 1994.
That the child live with the husband.
That the child spend time with, and communicate with, the wife on terms and at times initiated by the child.
That notwithstanding paragraph 5 of these orders, the wife be at liberty to write to the child and send her presents from time to time unless the child specifically writes to the wife indicating that she no longer wishes such communications to continue.
That the husband be at liberty to provide the principal of the child’s school, a copy of these orders.
That the husband authorise the said principal to provide to the wife any reports and newsletters that parents would normally receive.
That the Independent Children’s Lawyer be discharged from the proceedings upon:
(a)advising the child of the making of these orders and that the parenting proceedings have concluded; and
(b)forwarding a copy of these orders and subsequently a copy of the reasons for judgement to the wife by ordinary pre-paid post.
That the husband’s application relating to final parenting orders filed 23 August 2006 is otherwise dismissed.
That all parenting issues be removed from the list of matters awaiting a hearing.
That all outstanding issues relating to financial matters are adjourned FOR MENTION ONLY at 9.30 am on 21 October 2009 before the Honourable Justice Jordan.
That the application by the husband for costs arising out of the parenting proceedings be adjourned to be determined by me in chambers.
That by 4 pm on 22 September 2009, the wife file and serve any written submission only on the costs application of the husband, such written submission to be filed with the Brisbane Registry of the Court.
That by 4 pm on 29 September 2009, the husband file and serve any reply to any written submission of the wife as foreshadowed in paragraph 13 of these orders.
That after 29 September 2009, the issue of costs as sought by the husband be determined in chambers.
That 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 under the pseudonym Elton & Batey-Elton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: TVF 2250 of 2004
| MR ELTON |
Applicant
And
| MS BATEY-ELTON |
Respondent
INDEPENDENT CHILDREN’S LAWYERS
REASONS FOR JUDGMENT
The parties’ daughter S is 15 years of age and currently has no relationship with her mother but as late as only days ago, wrote to her father that her mother could correspond by letter. The overwhelming evidence in this case shows that the Court should listen to S’s views and give them significant weight. S’s mother however, does not agree. Her mother has been on an obsessive crusade to establish that S has been alienated by her father and that this Court has conspired with him to entrench that alienation.
S’s mother has not presented any evidence to support her theory. It is time to put the parenting dispute to rest and for S, at least, to get on with her life even if it means the absence of her mother in that life.
Background
The husband is a 65 year old farmer and the wife is a 57 year old pensioner.
The husband has not repartnered but the wife has.
The parties were married in 1972. There are three children of the marriage the last of whom is S who was born in May 1994. The parties separated on 1 May 2004.
Throughout these reasons, I shall refer to the parties as husband and wife notwithstanding that they no longer form any sort of union. I do so for my own convenience.
The applications
This litigation has been alive for over five years. It has been in this Court including the Full Court, the Federal Magistrates Court of Australia and the State Magistrates Court. The wife said to me that she had intended (but it would appear that she has not yet done so), to issue proceedings in the High Court of Australia arising out of the recent orders of the Full Court of this Court. Reference was made to a write of mandamus. Whilst that was proclaimed as a possibility, time is now of the essence in this case because of S. In reality, enough is enough.
There is also still outstanding an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”). I have made orders that the application associated with financial issues be listed before Jordan J on 21 October 2009 at 9.30am for mention. When I made those orders, the wife was not present in the courtroom, for reasons which will become apparent. The wife needs to be present at that time because regardless of her views about the ongoing involvement of Jordan J in any proceedings, there is no basis on the material that I have read, including decisions of the Full Court of this Court, for any other judge to take over the hearing.
The parenting orders sought
On the final hearing, the husband joined with the Independent Children’s Lawyer in seeking orders under which S was to live with the husband and he have sole responsibility for decisions about her future. In addition, the husband and the Independent Children’s Lawyer sought orders that any contact between mother and daughter be left to be initiated by S.
I do not know what the wife’s current position is. She failed to file any relevant material. I have therefore presumed that her position was as that which she set out in her amended application filed on 26 September 2005. Although at that time, the 2006 amendments to the Act had not operated, it was clear that the wife’s position was that S should live with her and that there be set times for the husband to have any relationship with S.
The wife’s application for an adjournment of the trial.
On 29 June 2006, Jordan J set the matter down for final hearing of the parenting matters. His Honour made the following orders:
18That the applications of the parties in relation to the child, [S] born on […] May 1994, be listed for final hearing on 24, 25 & 26 August 2009.
19a. That the Independent Children’s Lawyer use her best endeavours to arrange an appointment between the Wife only and Dr [L] to enable the Wife to confer with Dr [L] for the purposes of enabling Dr [L] to incorporate information gained from, and assessments made of, the Wife in an updated report.
b.That in any updated report, Dr [L] include comment upon the following matters of concern to the Wife:
i.Any parental alienation of the child [S] from the Mother.
ii.The Father’s conduct in:
fostering a good relationship between the Mother and [S];
and
facilitating [S] spending time with her mother.
iii.Any recommendations for improving the relationship between the Mother and [S] and for [S] to spend time with her mother.
c.That if, and only if, the Wife acknowledges that she is in a de facto relationship with Mr [B] and further, if the Wife intends to seek an order which enables Mr [B] to accompany her on any future contact visits with her daughter and requires [S] to attend when Mr [B] is present, Mr [B] may accompany the Wife and participate in the assessment of Dr [L].
20a. That the Husband file and serve any updating affidavits of evidence-in-chief in relation to the children’s matter on or before 24 July 2009.
b.That the Husband include in that affidavit one separate paragraph setting out precisely the orders now being sought by him in relation to [S].
c.That in the event that the Husband seeks to rely upon any material filed earlier in time, the Husband file and serve a list of such documents on or before 24 July 2009, which list shall identify those paragraphs in each affidavit contended to be relevant to the current hearing in relation to children’s issues only.
21a. That the Wife file and serve any updating affidavits of evidence-in-chief in relation to the children’s matter on or before 7 August 2009.
b.That the Wife include in that affidavit one separate paragraph setting out precisely the orders now being sought by her in relation to [S].
c.That in the event that the Wife seeks to rely upon any material filed earlier in time, the Wife file and serve a list of such documents on or before 7 August 2009, which list shall identify those paragraphs in each affidavit contended to be relevant to the current hearing in relation to children’s issues only.
22a. That the Independent Children’s Lawyer file and serve any updating affidavits of evidence-in-chief on or before 14 August 2009.
b.That in the event that the Independent Children’s Lawyer seeks to rely upon any material filed earlier in time, the Independent Children’s Lawyer file and serve a list of such affidavits on or before 14 August 2009.
c.That the Independent Children’s Lawyer use her best endeavours to secure the attendance of [Ms P] as a witness in the Independent Children’s Lawyer’s case.
Albeit late, the husband filed his material. The wife did not file anything.
Notwithstanding not having filed her material to set out her position about S, on 17 August 2009, the wife filed an application in a case, which, in essence, sought an adjournment of the trial. That was supported by an affidavit. On 24 August 2009, the wife handed me another affidavit which she asked me to read as a substitute for any oral submission in support of her application.
After hearing from all parties and reading the material, I refused the application of the wife for the adjournment. I gave separate reasons for that decision.
Upon the refusal of the application, the wife then departed the court saying that there was no point in her further involvement and that the Court was acting as a “kangaroo court”.
The wife’s understanding of the proceedings
Least there be any misunderstanding about the wife’s involvement in these proceedings, I find that the wife has been accorded procedural fairness; has been involved in the proceedings all along; and has had legal representation provided to her including on a pro bono basis at various times. In addition, the wife is in a relationship with a Mr B. I was told by senior counsel for the husband that Mr B purports to be a lawyer. Mr B has apparently accompanied the wife for a long time in these proceedings. At various times he has endeavoured to speak for her and assist her. Jordan J made orders for the psychologist who has assisted the Court in these proceedings to interview Mr B. Mr L, the report writer, said of Mr B:
He presented as a controlling man who maintained a self focus in respect of his personal values and skill. He was supportive of [the wife’s] argument that she had been alienated from [S] and reportedly has overheard negative/alienating comment made by [the father]…
He stated that he is in a de facto relationship with [the wife] and as such would “obviously” attend to have time with [S].
Senior counsel for the husband maintained that Mr B claimed to have legal qualifications but that he had been refused admission as a legal practitioner in Queensland in 2005. That becomes important because the wife said she had been unable to get legal representation. The wife’s written submission in the form of the affidavit to which I have referred, quoted authorities of the High Court of Australia. I presumed therefore that much of what she wrote was in fact authored by Mr B.
When the wife left the court, Mr B did so as well. Accordingly, if he was able to give any assistance to the wife in terms of helping her be involved in the proceedings or in fact provide evidence himself, that ended with his departure from the court along with the wife.
In response to the submissions of the husband, the wife sought that Mr B act as her advocate. I refused that.
In MG and MG (2000) FamCA 893, the Full Court when dealing with the issue of a McKenzie friend referred to the various authorities in relation to non-lawyers assisting litigants. The Full Court made the observation that in some cases where appropriate, a judge might allow the advisor to sit at the bar table and even speak to the Court. In this case Mr B who is now regarded by the wife as a partner and who says he is living in a de facto relationship with her, could not be sufficiently objective to fulfil any advising role. In addition, he having attended upon Mr L, it would be inappropriate for him to be any form of advisor or advocate in circumstances where he may ultimately be a witness.
The very same issue was dealt with by the Full Court when the wife appealed against the judgment of Jordan J. Warnick J on behalf of the Full Court made the following observation:
3.I would not permit Mr [B] to speak on behalf of [the wife]. I would not do so for several reasons. It is the norm, for the very good reasons to which Mr Page referred, that advocates or speakers on behalf of litigants, be legal practitioners who are subject to all of the strictures and obligations that apply to them. Mr [B] does not fit into that category. It may be that in an extraordinary case a person not in that category might be permitted to speak on behalf of a litigant but, in my view, this is not one an extraordinary case. There are several reasons for that as well.
4.[The wife] concedes that she is able, in effect, to present and support her application. What she anticipates not being able to deal with, are responses. We do not yet know whether any response will be called for or whether it will contain any matter of some nature which troubles [the wife].
5.The next reason is as well one of weight in this consideration, that is, Mr [B] is a deponent in the very application in which [the wife] seeks that he speak, effectively in the role as advocate, and I have in mind the nature of the matters about which he deposes.
6.Finally, there is no medical certificate supporting what [the wife] claims, although the balance of the reasons have application, even if one accepts the position that [the wife] feels that she is in, in terms of her capacity to speak to a response.
No evidence has been presented to me which would convince me that there is anything different in the matter before me than that which was before the Full Court.
In the proceedings concerning the adjournment, Mr B insisted that he be permitted to converse with the wife. No-one objected to his presence at the bar table. My concern which I expressed was that his interruptions of the proceedings were noticeable including his agitation when counsel spoke and his consistent and loud discussions with the wife which were a distraction.
In my view, it was appropriate for him not to be the wife’s advocate. In reality however, it matters little because he followed the wife from the court.
The subpoenae question
On 30 April 2009, the wife filed an application in a case returnable 17 June 2009. She sought orders concerning the issuing of subpoenae. On their face, the wife sought the issue of subpoenae concerning financial issues but also “audio copy” of the hearings of 11 July 2007 and 26 June 2009. She sought the production of those documents whether by subpoenae or otherwise.
On 17 June 2009, Jordan J made orders that those matters were referred to the hearing before me for mention. In respect of the financial issues, I have further adjourned all of those outstanding matters to Jordan J in October 2009. If there was some connection between the “audio” copies at 11 July 2008 and 26 February 2009 and the parenting issues, it was not readily apparent. In her affidavit filed 30 April 2009, the wife referred to a refusal by the registry manager to produce compact discs of the audio recordings. This application, if at all related to the parenting issues was mystifying. In Batey-Elton & Elton [2009] FamCAFC 101, the wife sought to reinstate her appeal which had been deemed abandoned because she had not complied with directions of the Full Court. The wife’s appeal was about Jordan J refusing to disqualify himself. The following passages of the judgment of the Full Court (Coleman, Warnick and May JJ) is instructive in relation to the issue before me (if in fact it is connected at all to the parenting issue specifically the issuing of subpoenae for the production of the audio recordings):
3.On 5 December 2008 this Court made orders after hearing an application made by the wife in the appeal. Those orders relevantly provided:
1.That time for filing Appeal Books and outlines of argument in support of appeal be extended to 4 pm 12 January 2009.
3.That leave be granted to the Appellant to subpoena the National Transcription Service to produce on 19 December 2009, or such later date as the Appeal Registrar may direct, the original unedited audio tapes and/or CDs of the proceedings before Justice Jordon on 13 March 2007, 4 September 2007, 19 February 2008, 15 April 2008 and 20 June 2008 and such further dates as the Appellant shall in writing advise the Respondent, the Official Trustee in Bankruptcy, the Independent Children’s Lawyer and the Appeals Registrar by 4 pm Monday 8 December 2008.
4.That the Appellant, the Respondent, the Official Trustee in Bankruptcy, Independent Children’s Lawyer, and Mr [B] be granted leave to listen to such audio tapes and/or CDs by arrangement with the Brisbane Registry of Court. [AB:34 & 43-44, pars 1, 3 & 4].
4.In anticipation of the wife complying with the Court’s orders it was noted:
That the Court as currently constituted will seek to convene on a day to be arranged in the week commencing 19 January 2009 for hearing of the appeal. [AB:34 & 44].
5.It is not in doubt that the wife failed to comply with the directions made on 5 December 2008. The wife’s appeal was deemed abandoned on 14 January 2009 and there was accordingly no hearing of the appeal, either on 19 January 2009 or any other date.
…
8.In support of her application for reinstatement of her appeal, the wife filed affidavits on 3 March 2009 and 8 May 2009.
9.The wife alleged in her affidavit filed 3 March 2009 that:
The Court at Brisbane has not provided any “original, unedited” audio tapes and/or CDs of any one of the requested hearings in my case, pursuant to the subpoena duly issued and served in accordance with Order 3 made by the Full Court on 5th December, 2008. Only copies were provided, and the whole problem is that at least some of the copies have been altered to remove the evidence which would, without more, make out my case for this appeal. [AB:16, par 1].
10.For reasons which she detailed (paragraph 2), the wife alleged that on 22 December 2008 she filed an application seeking “to obtain a copy of the compact disk (CD) actually produced” by the Court pursuant to the orders of this Court of 5 December 2008. [AB:16, par 2]. The wife deposed to the matter having been listed before Warnick J on 6 January 2009 at which time an order was made in the terms the wife sought (paragraph 3).[AB:17, first par 3].
11.The wife further deposed to having “collected a CD which contains a copy of what purported to be all requested hearings of my matter before Jordan J, commencing with 13th March, 2007. Additionally, not even allegedly correct copies have been provided of two of the hearings specified in the subpoena, namely 11 July 2007 and 3 October 2008”. [AB:17, second par 3].
12.As the wife conceded on the hearing of her application for reinstatement of her appeal, 11 July 2007 and 3 October 2008 were not dates included in the orders made on 5 December 2008. The dates which were included in the orders made (Order 3) were dates suggested by the wife. Notwithstanding that the orders enabled the wife to raise additional dates, the wife did not, in accordance with the orders, request “original unedited video tapes and/or CDs” of the proceedings before Jordan J on 11 July 2007 or 3 October 2008. The wife’s reinstatement application thus cannot advance in reliance upon the absence of sound recordings of either of those two dates.
13.It is significant for present purposes that by 9 January 2009, the wife was in possession of the CD containing “all requested hearings of my matter before Jordan, J, commencing with 13th March, 2007”. [AB:17, second par 3].
14.The wife asserted that, by 9 January 2009 she had discovered from the disk provided to her “serious omissions and evidence of tampering regarding my hearings before Jordan, J” (paragraph 4). [AB:17, par 4].
15.Having made submissions (paragraph 6) which cannot advance her reinstatement application, the wife asserted that:
7.I was and remain unable to comply with Registrar Spink’s request to have Appeal Books ready by 12th January, 2009 for the above reasons. I need more time to properly listen to, and have professionally analysed, the disk containing copy [sic] of the audio recordings of my hearing before Jordon, J. and in particular, the one fraudulently and criminally altered by parties presently unknown for apparently nefarious purposes. [AB:19, par 7].
The Full Court went on to say that the transcript of the hearing on 26 February 2009 could not advance the application to reinstate the appeal. Relevantly however, the material was in the possession of the wife or if it was not, she had ample opportunity to do something about it and did not. Equally importantly, I have heard nothing from the wife nor read any material put forward on her behalf, which would convince me that the material would advance the parenting case. Ultimately I have concluded that her argument was about the bias issue. The Full Court went on to say:
38.The wife failed to comply with directions made to enable her appeal to be heard in the November 2008 sittings. On 5 December 2008 this Court extended the time for filing the wife’s Appeal Books until 12 January 2009 and granted the wife leave to subpoena the National Transcription Service to produce “the original unedited audio tapes and/or CDs” of the proceedings before Jordan J on four dates designated by the wife and such further dates as the wife advised the Appeals Registrar of by 4 pm on 8 December 2008, such subpoena to be returnable on 19 December 2008.
Their Honours then said:
57.The wife’s allegations with respect to the proceedings are that Jordan J caused the National Transcription Service to edit portions of the audio transcript by omitting them. The wife has given no evidence as to what Jordan J said, but caused to be edited from the transcription. How the wife can complain that statements have been deleted without suggesting what was said in any way is hard to comprehend. The improbability of Jordan J having sought to “tamper” with the record of the proceedings before him, thereby risking his removal from office, and probable criminal charges, is obvious. The improbability of any officer of the National Transcription Service being receptive to a request of that kind is also obvious.
58.In our view it is highly significant that, almost five months since the wife heard the audio recordings of the proceedings before Jordan J, not a single statement allegedly made by his Honour indicating his alleged actual or possible bias has been suggested.
59.As is plain from the material which the wife has filed, and continues to file, there is a real concern that only when the wife hears what she wants to hear will she file her material and be ready to prosecute her appeal. Given the improbability that the wife will hear, or not hear, what she hopes for, she may never be ready to prosecute her appeal. Paradoxically, in the meantime, the determination of her own application under section 79A, and perhaps other proceedings brought by her in relation to children, remains in abeyance.
Similar sentiments could be said about the parenting case before me.
Accordingly, insofar as the matter of the refusal to issue the subpoenae relates to the audio material, I find it is of no relevance to the parenting question.
In her submission filed with the Court on 24 August 2009, the wife said:
6.I have no data whatsoever from my daughter’s school and the subpoena for the ICL was refused issuance by the Registry for no valid reason. The letter refusing to issue is attached hereto. There are two family report writers who need to be cross examined and I would require them to bring their documents, not just themselves because both had stated things that are derogatory, harmful to my position and my case, and absolutely untrue. As [it] stands, I have been denied any capacity to get them or their documents to court – by a judge who refuses to make a decision on taking himself off my case whilst stating in open court that he has done so and continuing to deny me any subpoenas.
The registrar’s letter dated 17 August 2009 said:
I refer to the draft subpoena that you have lodged with the court directed to Ms Kendall Hawdon to give evidence and produce documents. My understanding is that Ms Kendall Hawdon remains the independent children’s lawyer in this case. The draft subpoena were set (sic) the court as 17 August 2009 which of course has now passed. Consequently, as that hearing has now occurred, I’m not sure if you are still seeking to issue a subpoena to Ms Hawdon.
…
As it is somewhat unusual for a subpoena to be directed to a (sic) independent children’s lawyer to give evidence and/or produce the independent children’s lawyer’s file, particularly in a case which is still ongoing, please ensure that in your covering letter you set out specifically why you are seeking to have Ms Hawdon give evidence and produce file in this fashion.
It was similarly mystifying to me as to why the subpoena was necessary. No evidence was advanced by the wife about what she expected by way of evidence or documents from the Independent Children’s Lawyer. The Independent Children’s Lawyer is a party to the proceedings and an officer of the court. The wife did not set out what documents she was pursuing which she could not otherwise pursue from some other source including the child’s school.
Thus, in relation to the wife’s claim that there is material which needed to be subpoenaed, it is not at all clear how that would advance the parenting case.
The husband’s application to proceed on an undefended basis
The wife left the hearing immediately after my refusal to grant the adjournment. The husband, with the Independent Children’s Lawyer’s support, sought to proceed on an undefended basis. It must be remembered that the wife had an extant application for orders filed 26 September 2005. That application sought orders that S live with the wife and have time with the husband.
The power to hear a case on what is often described as an undefended hearing is set out in Rule 11.02(2)(c) of the Family Law Rules 2004 which provides:
(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
…
(c) determine the case as if it were undefended;
An undefended hearing means literally that the respondent does not participate at all. In Tate v Tate (2000) FLC 93-047 the Full Court noted that where the respondent’s application had been struck out, from the Court’s perspective there was no live issue as between the applicant and the respondent. Unlike other jurisdictions where a failure to participate entitles an applicant to obtain judgment by default, there is no similar provision in the Act or in the Family Law Rules.
In Brown v Brown ([2004] FamCA 1067), O’Ryan J said:
What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers in r 11.02(2) in appropriate cases. In my view, it is not necessary that the circumstances be “exceptional”. No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court's processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.
It is important to note that the wife has filed no formal amending response seeking orders since September 2005 notwithstanding the passing of the 2006 amendments which substantially altered Part VII of the Act. More importantly, Jordan J on 29 June 2006 made orders for the wife to file material. The fact that she had complained about the subpoenae as a basis for not filing the material, leaves me in no doubt that she really had no positive proposals nor evidence to put before the Court in relation to all of the matters which required determination by a court under Part VII of the Act. Her failure to comply with the orders means that there is no evidence to support the extant application she filed in 2005.
Accordingly, the wife having refused to participate in the proceedings, the only conclusion open to me is that she has failed to prosecute the application for orders that she sought. Accordingly, the response filed on 26 September 2005 must be dismissed.
The material of the husband
The husband sought to rely upon his application filed 23 August 2006. He sought the following orders:
2.The female child shall live with the father and the father shall be responsible for the day-today care, welfare and development of the female child.
3.The father shall have the sole responsibifity [sic] for the long-temt [sic] care, welfare and development of the female child.
…
11.Each parent shall facilitate the child telephoning the other parent at all reasonable times, should the child express a wish to do so.
The material upon which the husband relied was contained in affidavits of 20 January 2006, 25 August 2006, 20 November 2007 and 30 July 2009. Whilst that evidence was not the subject of any challenge as a result of the absence of the wife, it is important to point out that most of it was historical and has been the subject of judicial comment from time to time. Much of that evidence was also no longer current.
I have however relied upon all of it.
The onus of establishing the requisite matters in any application falls upon the applicant. The requisite standard of proof is the balance of probabilities. The facts which I set out hereafter are findings of fact. I am satisfied to make those findings according to the requisite standard.
The husband’s evidence
S had been brought up on the farm which on any view, was isolated. In 2006, she was back living with her father on the property and participating in school by radio. The father had organised a governess. S’s brother T with whom she was close, lived at an agricultural college where he was studying but came home each weekend.
The relationship between the parties seemed to vary but was certainly not good. There were allegations of physical violence each against the other and each denied being responsible. In the husband’s affidavit in January 2006, he described the violence and said that the children were present throughout it. This had been a relationship during which there were a number of separations.
The husband complained about the involvement of Mr B in the life of the wife particularly having regard to S’s assertions that she did not like him.
By 2007, S was spending some time during holidays with her mother but on the husband’s evidence, the relationship between mother and daughter was not good.
S has now had nothing to do with her mother for a long period of time and all indications are that there is no prospect of that changing.
S enjoys good health and has no special needs. She is attending a boarding school and her school report shows mixed results but generally I would conclude she was doing well.
When school holidays occur, S returns to the farm and according to the husband, maintains strong wishes not to see or spend time with her mother. S expresses similar views about Mr B.
Unsurprisingly, S expressed strong wishes for the proceedings to be concluded so that she could get on with her life.
The husband tendered a letter written to him recently by S although undated. I am satisfied that it was recently written having regard to the context of it contents. I think it is important in this case to set out how S sees things.
S reported to her father that the Independent Children’s Lawyer came to see her at school wishing to ascertain her views about what should happen at court. Apparently, the Independent Children’s Lawyer asked how much contact she wished to have with her mother whom she described by her first name and she told her father that she said that she wanted none. She then told the Independent Children’s Lawyer that a letter would be acceptable. She reported that the Independent Children’s Lawyer thought that more contact between mother and daughter would not “do any harm” whereupon the Independent Children’s Lawyer then began to defend the child’s mother. S then wrote to her father:
Despite this small disagreement, when she showed me what she was taking to the judge, I felt pleased with the outcome especially when it came to who was to have full guardianship of me. At the end, she gave me a card so I could ring her when I wanted another talk with her.
I shall turn to the structure of Part VII of the Act below and in particular, the views of S. I am satisfied on the basis of this unsolicited letter addressed to the husband that S does not want to have a formal structured arrangement with her mother but that she would be willing to accept letters from her.
S has been having counselling with a Ms P by arrangement with the Independent Children’s Lawyer.
The husband said that recently, the wife made an attempt to see S and it would seem that the school has corresponded with the wife and adopted the position that it would respect S’s wishes.
S’s brother to whom I earlier referred is now working as an apprentice and otherwise lives at home with the husband. As such, he sees S on a holiday basis. The husband described their relationship as close.
In terms of the financial support for S, the husband said that the wife made no contribution and as such, he was carrying all of that responsibility.
The wife’s financial position is difficult to gauge. She is currently pursuing an application for orders under s 79A of the Act but she conceded that she was bankrupt. She remains undischarged. According to the husband, that bankruptcy occurred on the wife’s own petition.
The husband’s position is that he enjoys good health and understandably, these proceedings have caused considerable strain both emotionally and financially. He said that he had sought medical help for the stress.
The husband has a poor relationship with the wife and from the husband’s perspective, there was no prospect of that changing. There had been no discussions for over two years and generally back then there were only arguments. Sadly, they cannot communicate about S and that ultimately leads to the question of how decisions can possibly be made jointly in respect of S’s future.
The husband’s position which I accept, was that he had no objections to S exploring a relationship in her own way with her mother.
The husband expressed concerns about Mr B but having regard to the orders that I propose, the views of S and her age, I need say no more about whether Mr B ought to be a cause for concern in relation to S. If the wife does not respect the views of S in relation to any contact between S and Mr B, it can only create a further barrier for the relationship between mother and daughter. Whilst that might be seen as a terrible thing, the answer lies in the hands of the wife.
The husband pointed to the tyranny of distance causing problems between he and the wife but I am satisfied that such a problem is minimal in the scheme of things.
The husband was also unequivocal in his denial about alienating S from her mother. I shall turn to that subject below when I consider the evidence of the expert Mr L.
The husband said that he tried to keep his views to himself and not openly express those views in S’s presence. Whilst I have some reservations about that, I am satisfied having regard to the way in which S is developing, she is of an age where manipulation may not be a major issue anyway.
The husband’s final point was that he did not think he could get S to attend further professionals to be involved in the process on the basis that she had clearly spoken her mind. I am satisfied that that is the case.
The wife offered no evidence to assist me.
The Independent Children’s Lawyer relied upon Mr L who is a psychologist. The Independent Children’s Lawyer read into evidence two affidavits by Mr L. The first was filed on 17 November 2008 and the second on 17 August 2009.
Mr L holds a Bachelor of Behavioural Science and Bachelor of Psychology (Hons) completed in 1998. Since that time, he has been a psychologist registered in Queensland and is a member of the Australian Psychological Society. He is currently studying for his post-graduate degree in clinical psychology. He has worked in a variety of programs since 2000.
Apart from the fact that the wife did not remain to challenge the expertise or the views of Mr L, I am satisfied that he is an expert.
In Fortnum & Fortnum (No. 3) [2008] FamCAFC 133 the Full Court said:
106.In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 (“Makita”), Heydon JA (with whom Priestly JA and Powell JA agreed) said:
… a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. … (at 729).
and:
… The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (per Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, within Makita at 729-730).
and:
Underlying these observations is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained. (at 733).
107. At 742-3 of Makita Heydon JA said:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it.
I am satisfied that Mr L has provided the Court with sufficient material to satisfy me that I could rely on his opinion. He has explained how he arrived at his conclusions. I am satisfied that assessing the views in particular of S and what weight those views should be given is a matter that requires expertise and that Mr L has demonstrated that he has that specialised knowledge to be able to do so.
On 17 September 2008, Mr L interviewed the husband and S. The interviews were conducted separately. Mr L had met the parties in November 2006 so this was an update. Significantly, S had matured in that time.
Mr L observed S maintaining a close relationship with her father. Mr L noted that the husband had difficulty avoiding negative comments about the wife in front of S but that S was not distressed nor responsive to those statements.
Mr L noted that the husband was affectionate towards S and focussed. He noted that the husband’s view was that S should be able to initiate any time that she wanted with her mother.
Mr L described in detail the features of the husband. Notwithstanding the evidence I have received of the husband about the stressors associated with these proceedings, he did not tell Mr L of any such anxiety, depression or stress. According to Mr L, there were no observable symptoms of delusion or disorder or psychotic features.
Mr L reported that the husband did not report or demonstrate any signs of serious adult psycho pathology or report the presence of risk factors that could negatively impact on his decision-making processes concerning S. The self report tests undertaken by Mr L were not unusual.
In respect of S, Mr L noted that she spoke in a moderate and modulated tone and volume and answered all of his questions. Importantly, he recorded that there was an acknowledgment of hopelessness in S’s presentation about the conflict between her mother and father but otherwise did not demonstrate any abnormal adolescent psycho pathologies.
Mr L reported that S commenced by acknowledging that her time with Mr L was wasted and embarrassing because she had to explain her absence at school particularly to her peers. There was an element of frustration in S’s position in that she thought that her views had been clearly expressed but that she was not being heard.
S was able to tell Mr L about her contact with her mother whom she had not seen throughout 2008 and she could recall her mother saying that she no longer wished to talk to her on the telephone.
S reported to Mr L about the relationship with her father and what happened on the farm and importantly that she enjoyed the boarding school.
Mr L opined that S presented as mildly sad in the context of the assessment but had normal psycho social development including a broad range of friends, contact with extended family and was able to actively participate in education, sporting activities and personal interests. As a consequence, he found that there did not appear to be any benefit for S in endeavouring to establish a meaningful relationship with her mother from whom she was estranged. Conversely, there was a close relationship with her father which ought to be maintained. Mr L opined that there was nothing to suggest that S would be at risk of physical or psychological harm when in the care of the husband. He reported S’s wish to remain living with her father and that her views had been consistent in the two assessment periods that Mr L had conducted.
Mr L opined that based on the degree and duration of conflict, it would be in S’s interest to provide predictability and stability by making final orders. He acknowledged that the sharing of time and responsibility had to be excluded having regard to the geographic problems and S’s expressed wishes.
Pursuant to the orders of Jordan J, Mr L saw the wife and Mr B in July 2009. He noted that the wife reported that she was in a relationship with Mr B and that she was now estranged from both T and S but maintained a relationship with her older son who lived in Tasmania.
Mr L probed the wife in relation to her relationship with her children and reported that she had a negative view about the role of the husband in relation to her relationship with them. She pointed out that she had been deliberately alienated by his behaviour and she resented it. She said the husband had brainwashed the children and particularly that S had been deliberately been held back by the husband as a way of punishing her.
It is of considerable concern in these parenting proceedings that Mr L reported the following:
[The wife] had the dominant belief that the real issue is about [the husband] avoiding a property settlement. She stated, “this is all a smoke screen to get justice, the real issue is the property settlement”.
I note this with concern because if it is the dominant view of the wife that somehow S is being used as a pawn in a game associated with financial issues, it reflects poorly upon her. She is clearly not listening to her daughter. These are critical formative years in S’s life and for the wife to express that sort of sentiment indicates she has little respect for S’s level of maturity or her capacity to rationally think through issues as a young woman. Notwithstanding her assertion of parental alienation, the wife needs to acknowledge S’s existence by putting aside the conflict and communicating with her as suggested by S in the hope that the relationship might be more attractive to S in the future. The constant assertions as to alienation are cynical and the perpetuation of this litigation does little for S’s psychological development. S has sent a very loud message to her mother, the father and the Court that she desires all proceedings to be ended so that she is not embroiled in the conflict. It is conceivable in the circumstances that her time at boarding school enables her to use that as a haven from the conflict.
The cynicism of the wife was also seen in that having acknowledged to Mr L that she was living with Mr B, she was concerned that the husband would use that information against her by involving Centrelink to preclude her from receiving Commonwealth benefits. Leaving aside any tactical issue let alone punitive action that the husband might take, if both Mr B and the wife are now openly acknowledging a “de facto relationship” which seems evident from what was said to Mr L, it is hard to imagine how she could in all conscience accept the benefits provided by the taxpayers of Australia without disclosing that relationship as she would be required at law. The only conclusion I can draw is that her focus is on herself. Equally, if what Mr B and the wife told Mr L was true, it reflects poorly on Mr B as well.
Mr L noted that the wife did not have a proposal to resolve the parenting dispute. In a resigned way, she reported she could not do anything and that she had to wait until S became an adult. If that belief was genuinely held, it is not only sad, but again reflects the fact that she is not listening to her daughter. Her daughter has as I have reported above, indicated a willingness to accept correspondence. The success or otherwise of that window of opportunity will depend upon the nature of the correspondence. If the cynicism to which I have referred is reflected in that correspondent to S, I have little doubt that the wife will find that S will not be responsive. Sadly however, it may be that in adult life, S will be similarly uninterested in developing a relationship. Sadly also, the wife reported to Mr L that the alienation by the husband was “aided and abetted by the Independent Children’s Lawyer and the Court”. The Court well understands how disaffected litigants feel but determinations are made on the evidence. In this case, the wife has done little in the last twelve months to put forward any proposal to try and resume the relationship with her daughter.
It is clear from the views expressed to Mr L that the wife accepts no responsibility for the estrangement of her daughter. The obsession with the proceeding has done an enormous amount of damage to the relationship and the wife must take responsibility for that. It was quite clear from the view of Mr L that the wife strongly believes that the husband has alienated S.
Mr L opined:
Despite the high levels of conflict between [the husband] and [the wife] and that it might have been that the parents were instrumental in using the children against each other, it also appears more likely that [S] does not wish to have time with her mother because she
(a) feels rejected, and
(b)wants to attain some degree of control and minimal exposure to her parents’ conflict.
It also emerged that irrespective of the parents’ motives to potentially alienate the children from each other, the result appears to have been that [S] is highly anxious in the company of her mother. [S] has had her own experiences where her mother has failed to have sufficient time with her. Easter 2008 was one example.
For a developing teenager, it appeared most likely that she wants to avoid any dissolution of her peer relationships. This is what would occur if [S] was to move and live with her mother in [the Sunshine Coast]. [S] also reports in the previous updated family report that she has made the decision not to have time with her mother. Whilst it is likely that some forms of alienation might have occurred in the history of the parents’ dispute, it also appears likely that [S], by her own volition, now wishes to remain separate from her mother.
The reference by Mr L to the 2008 example highlights the problem for the wife which supports the views that I have expressed above about her cynicism. The husband organised a picnic involving family members but the wife refused to go on the basis that somehow or other she might be “set up”. No one now can tell whether that would have been the case or conversely, whether the relationship between mother and daughter might have improved. There would have been people around to assist the awkward reintroduction. For the purposes of s 60CC(4) of the Act, I will find that that example reflects poorly on the wife and indicates that she really does not have a strong desire to bridge the gap between she and S.
Mr L examined the various family dynamics and then opined that S was forthright and did not wish to have time with her mother and would look at it again when she became an adult. That is not surprising having regard to the state of the relationship but it behoves the wife to endeavour to hold out an olive branch and find a way of communicating with S in a non-threatening way so that she does not have to wait until she becomes an adult to benefit from a relationship with her mother.
Mr L said that if orders were made forcing S to have time with her mother, she would become highly distressed and reject the orders. I accept that view.
Of the wife herself, Mr L expressed the view that she presented as highly distressed, suspicious and maintaining a feeling of hopelessness. He found that she was genuine in her distress but that does not overcome the fact that the wife has done little to endeavour to resolve the problem.
Mr L also interviewed Mr B and undertook some psychological tests. He said the results indicated problems with thought, withdrawal behaviours and past suicidal cognition. He said the reports also were consistent with the presentation of Mr B.
It is clear that S will be dissuaded from endeavouring to form a relationship with her mother whilst Mr B is a significant person in her mother’s life. The wife needs to think about a way of resolving that problem.
Mr L then recommended that S remain living with her father and that the wife write to S to keep the lines of communication open. Formal time between S and her mother should only be when initiated by S.
Mr L also indicated that therapy would not be successful unless it was entered into voluntarily and that would require S’s enthusiasm which is presently non-existent.
Legal issues
Parental responsibility for decisions about children
Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child.
Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child.
Because of s 61C(3), joint parental responsibility is subject to any order of the Court and s 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Parenting orders
Section 64B(2) provides that a parenting order may deal with a variety of issues including the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons; and
(c)the allocation of parental responsibility for a child.
Section 64B(3) provides:
a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Major long-term issues are defined to be issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Reflecting upon the nature of the major decisions that have to be made in S’s life, there are many things that would normally require parental involvement and consultation before she attains adulthood. However, on the basis of all of the evidence and in particular the obvious dislike that the parties have for each other, there is no prospect that those major decisions could be made jointly or even through consultation. The absence of the wife’s participation in these proceedings reinforces the point that she has no serious proposal as to how those normal parenting activities would be carried out.
The objects and principles of Part VII
The Australian Parliament on behalf of our society has reflected in the law its ambition about what benefits children should receive through parental involvement in their lives. As a starting point, all children in our society should enjoy the benefits and privileges set out in Parliament’s wish list.
The objects and principles are set out in s 60B. The Court endeavours to achieve these objects in each case involving a parental dispute over children. They are therefore to be applied and contemplated in this case.
Section 60B provides:
(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).
As will be evident from the matters to which I have referred, there is little prospect in S’s case that I could make workable orders that would enable her to enjoy all of those rights and benefits. In this case, I find that if orders were made along the lines contemplated by the wife in 2005 and presumably still pursued by her, they would be contrary to S’s best interests.
The best interests principle
Fundamental to my decision in this case is s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in S’s best interests. That provision reads:
(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
(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 willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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.
There is no prospect at the moment of S benefiting from having any meaningful relationship with her mother. I accept the opinion of Mr L. There is clearly a strong relationship between S and her father from which she does derive a benefit. It is important that that benefit not be disturbed.
I have set out not only S’s views but also the opinion of Mr L about those views. The strength of the insistence that her views be heard was impressive. S is an intelligent and articulate young person who was consistent in her views. I see every good reason to respect those views.
Despite the constant claim by the wife that the husband has alienated S from her and Mr L’s statement that there may have been some grounds for concern about the husband’s lack of ability to control his own disdain for the wife and Mr B, it is also clear that S did not seem affected by it. The alienation assertion of the wife therefore has to be given little weight concerning the orders that are required for S’s best interests.
There is no relationship at all between the wife and S although the door is still slightly ajar from S’s perspective. There is an observable and close relationship between the husband and S. There is a good sibling relationship between S and her brother. I accept the evidence of Mr L that the current good relationships need to be fostered and continued. They might be at risk if the Court was to follow the path suggested in 2005 by the wife’s then-proposed orders.
I am satisfied that the husband who gave evidence before me, would foster and support any desire of S to communicate with her mother. I find there is no basis to criticize the husband in that regard. I have no concept or understanding of how the wife would assist S’s relationship with her father and brother if she lived with her.
I accept the evidence of Mr L that any orders inconsistent with the views of S would be unworkable and likely therefore to cause S harm. She deserves better than that. Although S is effectively living at a boarding school, the evidence supports the view that she desires to be on the farm during holiday periods and involved in rural life. Her brother is there and they enjoy an important sibling relationship. It would not be appropriate therefore to make orders that might separate S from the significant people in her life at this time.
Whilst there is a tyranny of distance problem in this case, I accept the husband’s evidence that he would facilitate the mother and daughter relationship and overcome the distance issue if that was S’s wish. It is clearly not a problem at the moment. Distance is not an excuse for the wife not maintaining contact with S. With modern communication facilities such as email and technology such as “Skype”, the tyranny of distance is now more an excuse than a handicap.
Having regard to what the wife told Mr L, I find that she is not willing to endeavour to reach out to S. She needs to rethink her parental responsibility.
I find there is nothing in the evidence to suggest that the husband is anything other than focussed on S’s welfare. I do not accept the wife’s assertion (if that is what she intended to convey to Mr L) that the husband is behaving inappropriately towards her and towards S for some purpose associated with a property settlement. The wife’s attitude towards the attitude and responsibilities of parenthood are hard to gauge because of her obsession with the litigation. I see no reason why her focus could not still be on the financial issues of the s 79A application whilst at the same time endeavouring to mend the bridge with S. The failure to take up the opportunity to attend the Easter event, the lack of correspondence with S and the constant denigration of others including the child T (as described in paragraph 4 and 5 of the wife’s submission concerning the adjournment) all leave me puzzled as to what her view is about parenthood. There are no doubt many rebuffs in life for parents but that is not a reason to point the finger at others. The responsibility of parenthood never leaves the shoulders of a parent but in this case, I find that the wife is not willing to take that burden.
Whilst there are issues in the early evidence about family violence, there is no evidence upon which I could make any finding that would affect the parenting orders that I propose to make.
In addition to my finding that the views of S are strongly and maturely held in this case, I find that it is also very important that orders are made which are least likely to lead to further parenting proceedings. The wife’s application for an adjournment based upon arguments about procedural fairness and the pursuit of information had little merit when balanced against the need to give S respite from the conflict that has been going on for years between her parents. The wife’s failure to put forward any material and important proposals for S’s future based upon an argument that she had not been able to issue subpoenae to schools and the Independent Children’s Lawyer ignored the fundamental point that S does not want to be involved not only with the legal process which she found distasteful and embarrassing but also that she was mature enough to know what she wanted. I make abundantly clear that I do not accept that there has been a denial of procedural fairness to the wife; it is the wife who has ignored the desires of her own daughter. Those desires as expressed to Mr L and to the husband are a very strong plea to end the conflict. Nothing in the wife’s case could overcome the fact that S’s position would not change.
I find that there is cause for concern about S’s fear of Mr B. Despite whatever protestations there may be of the wife and Mr B about S’s expressed concerns, I cannot ignore two things. First, the fear existed. Whether or not it still does is a matter about which I cannot make any finding. Secondly, the wife and Mr B did not provide the Court with their evidence which might have enabled the issue to be probed. The wife made her position clear to Mr L that Mr B was not only a significant part of her life but also that he would be present if there was to be meaningful time with S.
Section 60CC(4) is also a provision that the Act requires a court to contemplate in determining what is in the best interests of a child. It provides:
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.
Section 60CC(4A) similarly provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have already found that the wife failed to take up the opportunity offered to her at Easter 2008. I find nothing in the evidence that would suggest that of late, the husband has failed to do what he could. The wife has made clear that she has no interest in resolving the parental conflict other than through litigation.
I find therefore that it is neither possible nor practicable by orders to achieve all of the objects that are philosophically desirable for S. It is neither possible nor practicable by orders to enable S to have the benefit of all of the principles set out in s 60B(2). It is however in S’s best interests that I make orders that reflect her views, accord with the opinions of Mr L and which leave the door ajar for the wife to endeavour to overcome the current estrangement.
The presumption of equal shared parental responsiblity
As I do intend to make parenting orders, s 61DA requires that I apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) 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:
(a) 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
(b) family violence.
Section 61DA(4) goes on to provide a second limb for the rebuttal of the presumption where it would not be in the best interests of a child to have the parents equally responsible. It says:
The presumption may 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 child.
There is no relationship between the husband and the wife. That lack of trust and respect makes the prospect of joint decision-making impossible. The writings of the wife indicate that she has no proposal as to how she would negotiate decisions about S even if S did not live with her. Decisions have to be made which are child-focussed. That is critically so when S is a young person entering upon the final stages of her education and developing her own personality. Parents are needed at that time as much as when they have to guide an infant. An infant needs decisions made but a young person needs co-operative and consultative parenting to assist in decisions they have to make. Their whole future can depend upon the educational choices to be made but they also need guidance about relationships and friendships. In this case, I can see no way that the wife is currently focussed on any of those things.
In Pitken and Hendry (2008) FamCA 186 Murphy J said:
39.Equally, though, an order for “sole parental responsibility” in favour of a party means that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
40.The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
His Honour later said:
The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
Based upon the findings about parental capacity and responsibility, I find that for the purposes of the presumption, it would not be in the best interests of the child for the presumption to be applied.
For the reasons set out above, I am left with no choice but to give the sole parental responsibility to the husband.
I will also make final orders otherwise.
The on-going role of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer sought a discharge of the appointment subject to his instructor explaining the outcome to S. In this case, I think that is appropriate.
I also intend to order that the Independent Children’s Lawyer forward by normal post to the wife, a copy of the orders arising from the hearing together with a copy of my written reasons. I expect that as the wife is on record of the Court as having an address for service, she will receive the documents anyway. However, I think it is important that the wife be under no misapprehension that as far as I am concerned, save as to what I set out hereafter, the parenting proceedings are concluded.
Costs application
The husband sought an order for costs of the parenting proceedings. That application had not been foreshadowed in the amended application for final orders sought by the husband when it was filed on 28 August 2006. It was not foreshadowed in the document filed by the husband on 21 August 2009.
Despite the wife’s petulant behaviour in departing the court upon my refusal to grant an adjournment, she should be entitled to be heard on the subject of costs arising out of the parenting application. Whilst her financial circumstances might be otherwise dire, she has an application still extant before the Court which relates to financial issues. There is an indication of significant property albeit not necessarily significant wealth in the hands of the husband.
I propose to give the wife an opportunity to be heard only on the issue of the husband’s application that she pay his costs of the parenting proceedings.
The husband said that if I was to make such an order, he would not object to the payment of costs being stayed until the determination of any property proceedings. In this case, that seems a sensible course to propose but it is important before that is contemplated that the wife be heard as to whether any order should be made at all.
I propose to give her some days to file and serve a written submission only on the costs issue. Any such submission is to be lodged with the Brisbane Registry of the Court. It is to be filed by 4 pm on 22 September 2009 and if he so wishes, the husband can respond to that by filing and serving a reply 4 pm on 29 September 2009. I will determine the application thereafter in chambers.
I certify that the preceding One Hundred and Forty Five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 31 August 2009
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