Fabre and Palmer and Anor

[2016] FamCA 399

FAMILY COURT OF AUSTRALIA

FABRE & PALMER AND ANOR [2016] FamCA 399

FAMILY LAW – CHILDREN – FINAL ORDERS – Application by the maternal uncle that he and the mother have equal shared parental responsibility and that the child spend time with him two nights per week – no appearance by the father – where the father has been notified of the proceedings – where there is a history of domestic violence between the mother and the father – where the father is alleged to engage in the use or abuse of drugs – where the mother and the father have mental health issues – where the child has previously been placed with the maternal uncle on an interim accommodation order – where the mother consents to the orders – orders made as sought by the applicant

Family Law Act 1975 (Cth)

APPLICANT: Mr Fabre

FIRST RESPONDENT: Ms Palmer

SECOND RESPONDENT: Mr Frederich

FILE NUMBER: MLC 881 of 2016

DATE DELIVERED: 4 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Traficante

SOLICITOR FOR THE APPLICANT: RT Legal

THE FIRST RESPONDENT: In Person

THE SECOND RESPONDENT: No Appearance

Orders

1. That this matter be heard in the absence of the second respondent.

2. That the applicant Mr Fabre and the respondent mother Ms Palmer have equal shared parental responsibility in relation to the child B born … 2011 (“the child”).

3. That the child the child live with the respondent mother.

4. That the child spend time with the applicant Mr Fabre two nights each week as follows:-

   (a)       Each Tuesday from 3.30pm until Wednesday 9.00am;

   (b)       Each Sunday afternoon from 3.00pm until each Monday at 9.00am and the mother be at liberty to stay at the home of the applicant Mr Fabre each Sunday night while the child is spending time with the applicant.  For the purpose of changeover on Sundays at 3.00pm the respondent mother shall attend upon the applicant, Mr Fabre’s home to deliver the child; and

   (c)       Such other times as agreed between the parties.

5. That when the respondent mother attends upon professional or medical appointments or is otherwise unable to care for the child the applicant shall care for the child.

6. That in the event that there is a decline in the respondent mother’s mental health and she is unable to care for the child, he shall live with the applicant until such time as the mother’s mental health professionals state that it is appropriate for the child to return to live with the respondent mother.

7. 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.

8. That as soon as practicable the applicant cause to be served on the respondent at his email address … the following:-

   (a)       A sealed copy of these orders; and

   (b)       Reasons for Judgment.

9. That the second respondent have liberty to apply to relist the matter for mention before me conditional upon he filing and serving upon all other parties within 21 days:-

   (a)       Any application upon which he seeks to rely; and

   (b)       An affidavit setting out his reasons for failing to appear at the hearings listed on 18 March 2016 and 4 May 2016.

10. That the Reasons for Judgment be transcribed.

AND THE COURT NOTES that the applicant and the first respondent have agreed to the following:-

A.That both the applicant and the respondent mother agree that the child’s care arrangements can be flexible throughout school holiday periods.

B. That in the event that the applicant goes on short stay holidays or weekends away the respondent mother agrees that the child the child is able to attend the short stay holiday or weekend away with the applicant if the child expresses a desire to do so.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 881 of 2016

Mr Fabre

Applicant

And

Ms Palmer

First Respondent

And

Mr Frederich

First Respondent

REASONS FOR JUDGMENT

1. The matter of Fabre, Palmer and Frederich comes before me today in the Judicial Duty List upon an application made by Mr Fabre, who is the maternal uncle of the child the subject of the proceedings.  The first respondent is the child’s mother.  The second respondent is Mr Frederich, the child’s father.  The father was called at the commencement of the hearing before me today at approximately 10.00 am.  He did not answer the call.  He was further called at 2.30 pm this afternoon and again, has not answered that call.  Accordingly, the proceedings have continued in his absence. 

2. The application before me today is the Initiating Application of Mr Fabre, which is an application filed 4 February 2016.  That application is supported by:-

   ·       an affidavit of Mr Fabre filed 4 February 2016;

   ·       Notice of Child Abuse, Family Violence or Risk of Family Violence filed 4 February 2016;

   ·       an affidavit of non-filing of family dispute resolution certificate filed 4 February 2016;

   ·       an affidavit of the applicant’s partner, Ms C, filed 4 February 2016;

   ·       the affidavit of Ms Traficante who is the solicitor for the applicant, filed 2 May 2016.

3. The matter first came before the Court upon a directions hearing listed before Registrar Riddiford on 18 March 2016.  That day the registrar made orders listing the applications to this Judicial Duty List.  Further, orders were made that the father, that is, the second respondent, be served with a notice of these proceedings via email at his email address, to inform him that the proceedings have commenced, that parenting applications in respect of the child B were to be listed this day and that in the event that the father does not file any documentation or appear at the hearing that the application listed before me would be dealt with in his absence.

4. Orders were also made requiring that the applicant serve the second respondent with the Initiating Application, affidavits relied upon and a copy of the orders made on 18 March 2016.  A further order was also made that the applicant file an affidavit confirming his compliance with the orders of 18 March 2016.  That affidavit confirming compliance with the orders as to service is the affidavit of Ms Traficante, which is the affidavit filed 2 May 2016.  That affidavit sets out the steps taken by Ms Traficante to ensure that the second respondent has had notice of the application listed before me.

5. At paragraph 6 of that affidavit Ms Traficante deposes she caused the application and affidavit of the applicant to be served via email on the second respondent on 23 March 2016 at 3.02 pm.  Annexure F to that affidavit attaches the seven separate emails sent to the second respondent effecting service of the documents upon which the applicant relies.  At paragraph 7 of her affidavit Ms Traficante deposes as to a further email sent to the second respondent on 29 April 2016 which was an email providing to the second respondent a draft of the orders sought on behalf of the applicant today.

6. Having regard to the evidence of Ms Traficante, I am satisfied that the second respondent has had notice of the application listed before me today.  As I have already noted, the second respondent has been called on two occasions and has not answered the call.  In the circumstances, I am satisfied that it is appropriate that the matter proceed in his absence. 

7. The first respondent appears before me today.  She is self-represented.  I have invited her to seek independent advice from the duty lawyer should she wish to do so.  She has declined that invitation. 

8. The position of the first respondent is that she supports orders in the terms sought by the applicant.  She has confirmed her consent to each of the orders that is sought before me today on a final basis. 

9. The background to the proceedings is as follows.  The applicant is the maternal uncle of the child, the subject of the proceedings.  He is aged 66 years.  He is a company director.  He resides in Suburb D with his partner, Ms C. 

10. The mother is Ms Palmer.  She is aged 48 years.  She is engaged in home duties.  Until recently, she lived with the applicant at his home in Suburb D.  She currently resides with the child at her residence in Suburb E.

11. The second respondent is Mr Frederich.  He is the child’s father.  He is aged 46 years.  To the best of the applicant’s knowledge he is unemployed.  Currently, his whereabouts are unknown. 

12. The child, the subject of the proceedings, is the child.  He is aged five years, having been born in 2011. 

13. There is a history of family violence and engagement with the Department of Health and Human Services.  That engagement is due both to issues of domestic violence and also due to concerns as to the capacity of the mother and the father to care for the child in circumstances where it is said that each parent has mental health issues.

14. Further, it is noted by the Department of Health and Human Services in its most recent report that there are concerns as to the father’s use or abuse of drugs. 

15. B has previously been subject to an interim accommodation order in favour of the applicant.  That order was made on 9 August 2013 when the child was aged approximately two-and-a-half years.  It was an order that continued until 11 September 2014. 

16. In February 2015 the child again came into the applicant’s care due to issues around the mother’s health.  It is set out in the affidavit material that she had attempted suicide and had been hospitalised in the aftermath of that event.

17. Hence, the applicant has had significant involvement in the care arrangements for the child since he was a very young child. 

18. In December 2015 there were further instances of family violence.  It is alleged that there was an altercation between the applicant and the father.  As a result of those issues there were proceedings in the Magistrates’ Court with respect to intervention order applications made by both the father and the applicant.  Interim orders were made as a result of those applications.  Since December 2015, as a result of the alleged violence, the mother and the child have lived at the home of the applicant.

19. As I have noted, that arrangement has continued until recently.  It is as a result of those events that the applicant has made his application to the Court for parenting orders so as to ensure stability and security for the child’s ongoing care. 

20. The Department of Health and Human Services have prepared a report pursuant to s 67Z of the Family Law Act 1975 (Cth) (“the Act”). That report is dated 17 March 2016. As to the child’s current circumstances, that report states as follows:

    Child Protection conducted an investigation and no concerns were assessed for the safety of the child in the care of the mother.  Child Protection have assessed that [the child] was not at significant risk of harm in the care of the mother, who was meeting his physical and emotional needs.  The mother and [the child] currently live with the maternal uncle and his wife, who were assessed as being supportive of the family.  Extended family members have also been identified as supportive and live in the same building.  Child Protection has sighted the home environment and no concerns were raised.  The mother and [the child] will be returning to their home over the Easter break 2016.  Child Protection was unable to interview the father during this involvement, despite multiple efforts to locate him. 

21. Having regard to those statements, I am satisfied that the living arrangements for the child in the home of the applicant are appropriate and meeting the child’s needs.  At page 2 of that report it is stated as follows:

    Child Protection has contacted [Suburb E] Primary School who advise that [the child] has been attending school every day.  He is engaging and making friends and the mother is active in terms of his learning development.  [The child’s] school held no concerns and advised that he presents very well and is a pleasure to teach.  [Suburb E] Primary School is aware of the intervention order in place and has photographs of the people who can collect [the child] from school.

22. Again, having regard to the material contained in that report as to the arrangements for the child’s education and intellectual development, I am satisfied that the arrangements in place, as have been agreed between the mother and the applicant, are appropriate and are meeting the child’s needs.  They are arrangements that are in his best interests.  In conclusion, that report notes as follows:

    Child Protection intends to take no further action.  Child Protection has assessed that [the child] is safe in the care of the mother with the support of her family.  The mother has acted protectively and is actively involved in [the child’s] development.  The mother engaged well with child protection and was insightful regarding the protective concerns.

23. As to the position of the father, the report writer notes as follows:

    Given that Child Protection was unable to contact the father and complete an assessment of him, concerns remain regarding his capacity and ability to care for [the child].  In addition, the father’s mental health state is currently unknown.  Substance misuse has also been an issue in the past for the father and this has had a negative impact on his mental health.  However, it is unknown if he is currently using any substances as he has not made himself available for assessment. 

24. The material contained in that report, in my mind, is significant as it provides an independent assessment as to the arrangements for the child, both in his mother’s care, but also in the care of the applicant and his partner.  It is material that is consistent with the affidavit evidence that is before me as provided by the applicant. 

25. In determining parenting applications, I am required to have regard to the objects and principles set out in Part VII of the Act. Section 60B(1) of the Act sets out the objects to which I must have regard. Those objects are:

    …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.

26. Section 60B(2) sets out the principles underlying those objects.  In determining a particular parenting order, the best interests of the child is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations the court must consider in determining what is in a child’s best interests.  I have regard to each of those considerations in determining the application before me today. 

27. Subsection (a) of section 60CC(2) requires a consideration as to the benefit to the child of having a meaningful relationship with both of his parents.  That is the ideal.  However, in circumstances where the father has disengaged from his child, as is the case here, it is a matter that, sadly from the child’s perspective, I am not able to advance by orders today.  The reality for the child is that he has not spent any time with his father since 25 December 2015.  The father has not sought any time.  He has effectively removed himself from the child’s life.  The position is that he has disconnected his telephone and his whereabouts are unknown.  That is the evidence of the applicant.  That is confirmed by the mother today before me and it is confirmed in the report from the Department of Human Services.

28. Section 60CC(2)(b) requires that I consider the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.  Again, the evidence before me is that the child was exposed to a serious instance of family violence in December of 2015.  This is confirmed again in the report of the Department of Health and Human Services.  It is also confirmed there that the mother and the applicant have acted protectively in ensuring that the child is protected from further violence.  He has been cared for at the home of the applicant until the Easter holiday period and he has now returned to live with his mother at her home.  I am satisfied that the proposed orders appropriately address the need to protect the child from physical or psychological harm or being exposed to violence.

29. All of the material that is before me indicates that the child has a very positive relationship with the applicant and the mother.  The material indicates that both the applicant and the mother have demonstrated a diligent and appropriate attitude towards their care responsibilities.  In contrast, the father has removed himself from the child’s life.  He has not participated, nor has he sought to participate, in any parenting of the child or in making decisions regarding long-term issues affecting the child. 

30. Having regard to all of the matters to which I have referred, I am satisfied that it is appropriate that I make parenting orders as sought on a final basis.  I am satisfied having regard to all of the factors referred to earlier that the proposed orders are in the child’s best interests.

31. I will make provision in the orders for the father to have liberty to seek a relisting of the matter before me.  I will give him a limited time in which he can do so.  I will make any relisting of the matter before me conditional upon him filing an affidavit which provides an explanation as to why he did not appear at Court on 18 March 2016 before Registrar Riddiford and, further, why he did not appear before me this day. 

32. From the child’s perspective, he requires stability and certainty in his parenting arrangements moving forward.  He has had significant disruption, both due to health issues with his parents and, more recently, because of the events of domestic violence.  Since that time he has had a period of stability.  The orders that I am asked to make, I am satisfied, will ensure that that continues and it is on that basis that I will make orders in the terms sought by the applicant.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 May 2016.

Associate: 

Date:  4 May 2016