Erkens and Salvi

[2018] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERKENS & SALVI [2018] FCCA 2087

Catchwords:
FAMILY LAW – Final parenting hearing – father left the court precinct after negotiations failed – undefended hearing.

Legislation:

Family Law Act 1975 pt.7

Applicant: MS ERKENS

Respondent: MR SALVI

File Number: MLC 7292 of 2016

Judgment of: Judge Harland

Hearing date: 19 July 2018

Date of Last Submission: 19 July 2018

Delivered at: Melbourne

Delivered on: 19 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Johnson

Solicitors for the Applicant: Hughes Watson Marks Kennedy

The Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Ms Agresta

Solicitors for the Independent Children’s Lawyer: Altavilla Family Law

ORDERS

1. The mother has sole parental responsibility for the children [X] born 2006, [Y] born 2002, and [Z] born 2010 (“the children”).

2. The children live with the mother.

3. The mother keep the father informed of any significant medical and/or educational decisions that she makes with regards to the children.

4. The mother will keep the father informed as to any school or extracurricular activity that the children may be involved in (including but not limited to sporting events, school concerts) and where appropriate and practical, permit the father to attend such an event should he choose.

5. The father spend time with the children as follows:

   (a)Commencing 22 July 2018, with [X] and [Z] on alternate Sundays from 10:00am until 6:00pm;

   (b)With [Y] according to her wishes; and

   (c)At other times as agreed between the parties, including on special occasions.

6. Changeover occur at the mother’s residence at the commencement and the conclusion of the father’s time pursuant to Order 5 herein.

7. The father’s time pursuant to Order 5 herein is not to take place at the father’s place of residence, unless the parents agree in writing.

8. Each party facilitate liberal communications between the children and the other party by phone, Skype or any other means as deemed appropriate or preferable by the other party or the children.

9. The father be and is hereby restrained from consuming illicit substances 48 hours prior to and during all times the children are in his care.

10. Both parties will provide to the other their residential address, mobile telephone number and email address and inform the other within seven (7) days.

11. The mother authorise the children’s school to provide the father with a copy of the children’s school report.

12. The Independent Children’s Lawyer explain these orders to the children.

13. The Independent Children’s Lawyer be discharged after explaining these orders to the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7292 of 2016

MS ERKENS

Applicant

And

MR SALVI

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed for trial today with respect to the parenting arrangements for the parties' three children:  [Y], aged 15; [X], aged 12; and [Z], aged 8. 

3. The proceedings began when the mother filed an application on 4 August 2016 seeking to relocate with the children to Darwin.  There have been two family reports in this matter.  The first was released on 16 February 2017, and the second was released on 29 January 2018. 

4. An Independent Children's Lawyer (“the ICL”) was appointed on 8 May 2018, because of the significant change in the arrangements for the children between their parents. 

5. Throughout the proceedings the father has been self-represented and has only filed one affidavit, together with his response, which he filed on 5 March 2018.  This meant the first family report was prepared without him having any material on foot.  What is clear from both family reports, and from the affidavits of the parties, is that there has been quite a high level of conflict and distrust between the parents, and that historically both parents have had issues with drugs. There is a question mark about the father's current drug use and that of his current partner.  It is also clear that these children have experienced a lot of change since their parents separated in 2015, which is another issue they have had to cope with. 

6. After the parties separated there was a period of time where the mother was living in the Northern Territory, where she had family support, so that she could address her mental health issues, and the father had the children living in his full-time care.  The mother then returned to Melbourne and the children were living in a week-about arrangement between their parents. 

7. At the time of the first family report the mother was seeking to relocate with the children which would have limited the father's holiday time, given the distance, and the mother had entered into a new relationship.

8. The father opposed the mother's application and said that if mother relocated to Darwin, he wanted the children to live primarily with him.

9. It is clear from the first family report that there has been issues with risk raised with respect to the father in terms of his discipline of the children, whether or not there are any family violence issues, as well as the issues involved with respect to relocation, and the parties' ability to communicate and make joint decisions for the children. 

10. It was evident from the first family report that the father's relationship with [Y] is not as strong and well developed as his relationship with the two boys.  [Y] is a somewhat fragile teenage girl, who is clearly very intelligent, but has had long-term issues with her peer groups at schools and being able to successfully go to school consistently. 

11. What is apparent from both family reports, and the mother's material, is that it is the mother who has been actively engaged with [Y] in trying to address those challenges, and one of the concerns with respect to [Y] is the father's disengagement with those issues. Certainly [Y]’s own reports to the family report writer indicate difficulties in that regard. 

12. In the first family report [X] reported having good relationships with both his parents and positive relationship with both parents' partners, as the father also repartnered, and he wasn't sure which parent he wanted to live with.  At the time of the first report [Z] was only seven, but he made it clear that his relationship with his father was important to him. 

13. The family consultant spoke to the principal of the School 1, where [Y] attended in 2016, who reported that the father had been informed of significant parent-teacher interviews but had not attended meetings or returned phone calls about [Y]’s progress. Particularly given the fact that [Y]’s attendance at that school was described by the principal as sporadic, with a high level of absentee levels, the father was lacking in his exercising parental responsibility for [Y], and this would have not assisted with their relationship. 

14. It is clear that whilst he indicated he wanted to engage in counselling with [Y] to improve their relationship, he did not take the further step of organising that counselling.  My impression is that was not because he doesn't care about [Y] or love her, but that he seems to struggle with being proactive and engaging effectively. 

15. The children spent a block period of time with their mother in Darwin in the Northern Territory over the long school holiday period so that they could get a sense of what it was like to live there as they hadn't previously, and a second family report was released thereafter. 

16. As I had indicated before, the father also repartnered, and his partner has two other children. Until just before the second family report, they were not living together, but it became clear during the course of the family report interviews that they were in the process of moving in together. Most unfortunately, his partner and her children were not involved in the assessment.  It is not surprising that the family consultant did not request for them to attend for an interview given at the time of the previous report the father indicated that there were no plans for them to live together. 

17. At the time of the second family report interviews the children spoke positively of the father’s partner and her children. Certainly the father believed that the children were happy with the arrangement that they had entered into, and that [Y] was looking forward to having more girls in the family, despite having had some previous difficulties with his partner's children. 

18. It is evident from the second family report that there are some limitations on the father's parenting and that he lacks some skills in how to effectively manage the children when they are misbehaving. 

19. I note that the family consultant says again in the second report that the children impressed her as a delightful sibling group of children who get along with each other, so it's not a case where everything is going wrong.  Some credit has to be given to both parents for this.

20. Unfortunately, [Y] has continued to have difficulties with schools. At the time of the second report she was hopeful that father's partner's children would be helpful for her in terms of her return to school, however that has unfortunately not come to pass.

21. When [Y] was interviewed by the family consultant she said that her father did not get around to organising the counselling, that her mother had made the appointments, and the father attended when the counsellor asked him. That is another example of the father’s passiveness.  When it came to the family consultant's recommendations she recommended that the children remain living in Melbourne, spending alternate weeks with each parent. 

22. The family consultant spoke of [Y] being able to decide which parent she lives with if her relationship with either parent deteriorated whilst those difficulties were addressed.  She also recommended that the father attend a parenting skills development course such as Bringing Up Great Kids or Turning Into Teens, and that [Y] get some personal counselling assistance.  She further recommended that the father cooperate with the mother's arrangements to engage the children in extracurricular activities, as another issue that has been raised in this case is the father not being supportive of the children engaging in those activities. 

23. One of the things that is quite sad about this case is that the situation between the father and the children has changed quite dramatically since the second family report was released, and that change occurred pretty quickly. 

24. When the matter came on before me on 5 February 2018 the father had not taken steps to enrol [Y] in school.  He had not filed any material and had not complied with any orders for drug testing.  On that occasion I ordered again that the father file material, but also that the parties do all acts and things to enrol [Y] at School 2 in Suburb A.  The father was warned that if he didn't file material the proceedings may be finalised on an undefended basis. 

25. As I indicated, the father did file an affidavit and response on 5 March 2018.  He prepared it without the assistance of a lawyer, and it was clear from that affidavit that he disputed many of the allegations that mother made about his conduct, particularly with respect to family violence and allegations of drug use.

26. It is clear that when mother was living in Darwin the father did have to take on the responsibility for the children full time, and he indicates in his affidavit that it was difficult to juggle that and full-time work.  There is also no doubt that the children found it difficult being away from their mother for that period of time as it is not something that they were used to.  The father’s material certainly indicates that his position was that the children should remain living in the equal time arrangement if mother remained in Melbourne, or otherwise live with him full time. 

27. The mother filed a further affidavit on 17 April 2018, and filed an amended application on 12 April 2018.  The mother no longer sought to relocate to the Northern Territory, and her affidavit filed on 12 April with her amended initiating application indicated that she had taken on board the recommendations in the report and she had amicably split with her partner. 

28. She went on to refer to difficulties with respect to enrolling [Y] at School 2, saying the father did not comply with the order and had, in fact, enrolled [Y] at the School 1 where she had had previous problems. 

29. She also deposes to there being problems in the father's blended household. In an affidavit filed on 17 April 2018 she refers to disclosures that [Y] made after spending time with the father on 13 April in which she said there were problems in the household with her being bullied by her father's partner's daughters, the father not addressing those issues, and that one of the consequences was that [Y] did not feel comfortable continuing to go to the same school. 

30. [Y] described other issues including telling her mother that she had found some drug paraphernalia in a bathroom drawer, and that there was a lot of arguing between the father and his partner, which [Y] described as being frightening and described needing to take her brothers to the park to get away from that. 

31. When the matter came before me on 27 April 2018 the father attended court. What was clear was that the situation had deteriorated and the children were not spending the week-about time with their father. It is my recollection that it was not in dispute that there were problems, instead the issue was about how to address these problems.  On that occasion I appointed an ICL and listed the matter for trial on 19 & 20 July 2018 as I was concerned that to further delay the final hearing in this matter would have caused further difficulties for this family. 

32. The matter returned before me on 8 May 2018 with the first appearance of the ICL. On that occasion father did not attend court.  Submissions were made that the father had not seen the children for about a month, and then the father had picked them up on a Sunday. The mother also was seeking an order to be able to enrol [Y] at Distance Education Centre Victoria.  The ICL indicated she had spoken to [Y]’s counsellor and was supportive of the order with respect to [Y] being enrolled in distance education. 

33. I made orders suspending the spend time with orders and made an order that mother be able to enrol [Y] in the Distance Education Centre Victoria without the consent of the father.  I also made orders for the children to live with the mother and spend time with the father from 10:00am to 2:00pm each Sunday, with that time not to occur at the father's home.  Those orders were made in his absence because he had not attended. The difficulty on that occasion was, and remains, providing for the father to spend some time with the children in a way that is safe, but also enables the boys in particular to maintain the connection with their father that they clearly want. 

34. The father has not filed any further material.  He attended court today with his partner and the matter was stood down as the lawyers were hopeful that there might have been a resolution of the issues.  Unfortunately, what then became apparent is that when an agreement could not be reached on all issues, the father became distressed and told the counsel for the ICL that he wasn't going to stay, despite her efforts to encourage him to participate in the proceedings and explaining how the proceedings work.

35. It is unfortunate that the father has not remained and participated to the extent that he would be able, but it is also not surprising insofar that my impression of the father is that it is not that he is not interested in his children and that he does not care deeply about what happens, but rather that he is overwhelmed by the court process and doesn't have the assistance of a lawyer. 

36. The impression that I have, from reading the second family report, is that the father was a bit naive and hopeful about how easy it would be to blend his family with his children and his partner's children, and that is not unusual, but blended families can be notoriously difficult to settle in.  It is a whole lot of dynamics for the children to deal with, and it's not uncommon for people to need to get external supports to help address that. I certainly do not have any indication that the father has been able to source and engage in any of those supports. 

37. The ICL has spoken to the children recently.  I also refer to mother’s trial affidavit.  The children, the boys in particular, want to see their father and have a relationship with him, enjoy spending time with him, but do not feel comfortable at his home, and do not want to be exposed to that environment. 

38. It is apparent that the father’s relationship with [Y] has deteriorated further, and I am told that there was no dispute between the parties that [Y] should spend time with her father in accordance with her wishes.  Given her age to make any other order is likely to be an order that would not be able to be complied with. 

39. The difficulty for [Y] is that she feels that her father is not interested and that he doesn’t want to work on that relationship. Again it is not so much that he is not interested but that he has no idea of how to engage with a teenage girl and how to fix that relationship. It seems that perhaps engaging with his daughter has been a problem for him, and not in the same way as the boys. 

40. [Y] told the ICL that she doesn't want to see her father but that she would like to be able to have lunch with him if she wanted. That is important because she is not rejecting the father entirely.  It is important that the father take note that that is a sign of [Y] asking her father to show some interest in her, and certainly it would be beneficial.  It would be helpful if the father made an approach to [Y], perhaps inviting her for lunch or a coffee, separate to any activities with the boys.

41. With respect to the boys, they both spoke about wanting to see their father.  [X] spoke about wanting to try overnight time, even though they both have problems with the father's household and do not want to go back there. 

42. In circumstances like this, where one party has not participated effectively in proceedings and has not complied with orders, including orders for drug tests, which is a significant issue. When people do not comply with drug tests, then inevitably the court is concerned that that is because the test would be positive.  It may or may not be that that would be the case, but the only way to address that concern is to actually comply with orders for drug testings within time and provide those screens.  The father has not complied with any drug screen request in 2017 or 2018. 

43. Although it may be common in many of these cases to simply make orders that see the father spending time with the boys as agreed or in accordance with the boys' wishes, in my view, that is not in these boys' best interests, and it is not what I am being asked to do.  The concern I would have is that the father would interpret such an order as saying to him, "Don't reach out to your children.  Don't make the effort."

44. There have been difficulties with the father spending consistent time with the boys since his time was reduced, but it is still important that there is that order that is making the invitation to him clear.  The mother seeks that the time be varied so that she has a weekend with the children.  I am certainly satisfied that is in the children's best interests, but I am also of the view that the father should have a full day with the children so that he is able to do more activities with them, and he might actually find that easier than a more limited period. 

1. It is going to be very much a matter for him to take up that invitation and the mother needs to encourage the children when he does.  One of the difficulties for the mother is managing the disappointment of the children when he does not.  The message I hope the father receives is that he, as the parent, needs to be the one who is making the effort and reaching out to the children.  It's not up to them to reach out to him.  In fact, they will do that less and less if they feel like he is not making an effort because they will misinterpret the difficulties that he clearly has as being him not being interested and not caring, and that is not the impression not the impression that I have. 

2. My impression is that he does not have the skills to participate in the proceedings effectively, and has not had the skills to effectively deal with the problems that he is facing, which are not easy.  It is not the case that he is not interested and does not love his children.  He wouldn't put himself through coming to court and addressing these issues, and he would not have been as distressed as he was today if that was the case. 

3. In cases like this it gets to a point where there is a limit as to what the law can do to fix these issues.  The mother seeks an order for sole parental responsibility, which is supported by the ICL, provided that mother keeps the father informed about what is going on for the children. 

4. I am certainly satisfied on the evidence that the father has not been engaging in making long-term parenting decisions for the children with the mother, particularly with respect to education. Again it is my understanding that father was not opposed to mother having sole parental responsibility as long as he was kept informed.  It is important that the father is kept informed of issues such as how the children are performing at school as it gives him information to use to talk to and engage the children in topics that are relevant to them. Without that information, it will be harder for his to engage with the children.

5. I am satisfied that it would not be in the children's best interests for the parents to have equal shared parental responsibility.  They do not have that level of communication or trust, and the father is not engaged in that way, so I will make an order for the mother to have sole parental responsibility. 

6. I will order that the mother inform the father of any decisions that she makes, and that she also keeps the father informed about the children's school and extracurricular activities. 

7. I will make the orders in accordance with the mother's case outline which deal with the parents keeping each other informed of their address and contact numbers,  facilitating phone and Skype contact between the children and the other parent, the mother authorising the children’s school to provide the father with school reports, the mother keeping the father informed as to the children’s school and extracurricular, and the father be restrained from ingesting illicit substances 48 hours prior to spending time with the children and during the time the children are in his care. 

8. I will order that the children live with the mother. The father spend time with [Y] in accordance with her wishes, and with the boys on alternate Sundays commencing on 22 July 2018 from 10:00am to 6:00pm.  I am leaving the commencement time at 10:00am because that has what it has been so far.   

9. I will also make an order that the father spend time with the children at other times, as agreed, including special occasions. 

10. I will also order that the changeovers occur at the mother's residence at the commencement and end of time.  That was the interim order that I made, and it should continue particularly in circumstance where the father isn't always attending on time or attending at all.  That way the children are not left waiting in some public area. 

11. I've given consideration to the factors that I am obliged to under Part 7 of the Family Law Act 1975.  This case is one where I have taken into account the children’s views, particularly with respect to [Y] as I have placed significant weight on her views. This is a case where, unfortunately, the father has not been able to demonstrate his capacity to address all of the children's needs, and particularly emotional and intellectual needs, and the responsibilities of parenthood to the same extent as the mother. 

12. It is not about saying mother is the best parent and father is the worst, or being critical or punitive.  Certainly mothers make mistakes too, and the mother has had areas where she has not been the best parent.  I am yet to meet the perfect parent, and I make those comments because I think it is important for the father to hear that.

13. It is important for the children's welfare, but also for the parents, that these proceedings come to an end.  There is no value in the proceedings continuing. One would hope that by the proceedings being at an end that might ease some of the stress and the pressure that both parents must feel, and that the children also feel and are aware. I am grateful that the ICL has volunteered to see the children to explain the orders, which is something I would have asked the ICL to do in this case.  It is important for the children to hear from their lawyer what has happened, and to be given the message that their father loves them, that it is not a case of him being disinterested and walking away. 

14. I will make an order that the father's time not take place at his home unless agreed in writing between the parents because that is a problematic source where it's clear that there's been real issues in that household.  However, I am not going to make an order restraining his partner from being in attendance because one of the issues, as the counsel for the ICL quite rightly pointed out, is that it's not going to be possible for those relationships to improve if she's not ever allowed to be there. Really it seems the issue is the dynamic of the children being in the household with her children for extended periods of time, and that is certainly the boys' view that it is not a place that they want to be because they have had bad experiences. If they are going to be improving their connection with their dad, who they clearly love and want to spend time with, it is not going to be achieved if it is at that home. 

15. Certainly the hope would be that the father is able to work through these issues and able to reach a position where he is able to spend more time with the children.  This will be a flexible arrangement as particularly these boys are getting to the age where it is quite normal for teenagers to really want to spend time with their friends and peers more than either parent, but I am satisfied that these orders are in the children's best interests. 

16. I will also make an order discharging the ICL after she has met with the children to explain the orders. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 1 August 2018