Fello and Sternfeldt

[2016] FamCA 59

FAMILY COURT OF AUSTRALIA

FELLO & STERNFELDT [2016] FamCA 59

FAMILY LAW – CHILDREN – Undefended hearing – Where previous orders made for the child to reside with the maternal grandmother and spend supervised time with the father – Where significant concerns for the child’s safety in the presence of the father when unsupervised – Where father has failed to participate in proceedings – Consideration of child’s meaningful relationship with the father and the need to protect the child – Where orders for the father’s time with the child discharged.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Fello & Sternfeldt [2014] FamCA 312
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Ms A Fello

RESPONDENT: Mr Sternfeldt

FILE NUMBER: PAC 2504 of 2012

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

Orders

1. That orders for the child B born … 2010 to spend time with the father made on the 15 May 2014 be discharged.

2. That the child spend time with the father as agreed between the applicant maternal grandmother and the father and upon such conditions as are agreed between the maternal grandmother and the father with such agreement or agreements to be in writing with such writing to include SMS or email communication.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fello & Sternfeldt 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 PARRAMATTA

FILE NUMBER: PAC 2504  of 2012

Ms A Fello

Applicant

And

Mr Sternfeldt

Respondent

REASONS FOR JUDGMENT

1. The present proceedings are further parenting proceedings in relation to the child B born in 2010.

2. Final parenting orders were previously made on 15 May 2014 in proceedings between the applicant maternal grandmother and the father in circumstances whereby the mother is deceased: (Fello & Sternfeldt [2014] FamCA 312).

3. Orders made on 15 May 2014 provided in summary:

   a)That the applicant maternal grandmother have sole parental responsibility for the child and that she notify the father and the paternal grandmother as to any decisions made in respect of the child’s health, education and will major long-term issues in relation to the child;

   b)That the child live with the applicant maternal grandmother;

   c)That the child spend time with the father each Saturday from 2:00pm until 6:00pm and on other special days and for such other periods as agreed between the parties with the child’s time with the father to be in the presence of the paternal grandmother unless otherwise agreed; and

4. Otherwise there were other specific issues orders made not relevant to the present determination.

5. The present application was filed by the maternal grandmother on 15 October 2015 and in that application she sought orders that the child’s time with the father be suspended and that the father spend supervised time with the child at the Central West Children’s Contact Centre at Suburb F.

6. The maternal grandmother’s fresh application and documents filed in support thereof were served personally on the respondent father on 18 November 2015.

Procedural fairness

1. Proceedings were listed before a Registrar on 24 November 2015 and on that date the father was directed to file a response to the further Initiating Application and any relevant affidavit evidence by 9 December 2015. The matter was adjourned to a further date before the Registrar on 10 December 2015.

2. On 10 December 2015 there was no appearance by or on behalf of the father and leave was granted to approach the list clerk for the maternal grandmother’s application to be determined on an undefended basis. Proceedings were thereafter listed before the Court for case management on 18 January 2016.

3. On 18 January 2016 there was no appearance by or on behalf of the respondent father and orders were made in summary as follows:

   a)That proceedings be adjourned to 1 February 2016 at 9:30am for undefended hearing; and

   b)That the solicitor for the applicant forward to the respondent father by ordinary post a letter enclosing a sealed copy of orders made today in a letter informing the respondent father that proceedings had been adjourned to 1 February 2016 and in default of there being any appearance by or on his behalf on that date the application filed on 15 October 2015 will proceed to final hearing together with a minute of proposed final orders sought by the applicant on undefended hearing.

4. To date the father has failed to file any material on his behalf.

5. The matter proceeded to undefended hearing on 1 February 2016. The applicant relied upon her affidavit filed on 15 October 2015, her affidavit filed on 9 December 2015 and the affidavit of Nebras Makdo filed on 28 January 2016 as to notification to the father as required by orders made on 18 January 2016.

6. It is appropriate in the circumstances that the maternal grandmother’s application proceed to undefended hearing.

Background

1. The proceedings before this Court have a long history that is fully set out in the previous reasons for judgment. Similarly to the present proceedings, the earlier proceedings were finally heard and determined on an undefended basis by reason of the respondent father’s failure to engage in the proceedings appropriately.

2. The child’s mother unfortunately passed away on 4 January 2013 when the child was two and a half years of age.

3. Subsequent to previous orders the child has continued to live with the applicant and her husband. The child has in fact lived with the maternal grandmother since October 2012.

4. The maternal grandmother expresses concern for the child’s safety in circumstances where on 12 September 2015 the child was transported by the father unrestrained in the front seat of the father’s car. The child was driven back to the father’s home by the father in his own car and the maternal grandmother has concerns that the paternal grandmother was not present during the father’s time with the child as required by the earlier orders.

5. The maternal grandmother spoke to the paternal grandmother in relation to the incident and the paternal grandmother’s response was such that she did not appear to take the issue seriously. Subsequently it appears that the relationship between the two grandmothers deteriorated with the paternal grandmother requiring communication by text or email communication.

6. The maternal grandmother expresses concerns in relation to the relationship between the father and his mother particularly by reason of the father’s long-standing history in relation to the use of illicit drugs. The father’s background is considered in detail in the earlier reasons for judgment and need not be repeated here.

7. The maternal grandmother has observed that the father in about April 2015 obtained a new large tattoo across his thigh which reads “FUCK THE POLICE”.

8. As at October 2015 the maternal grandmother was of the understanding that the father continued to reside with his mother in premises at Suburb G in Sydney. However in early December 2015 the maternal grandmother became aware that the paternal grandmother no longer resides with the father and has moved to Queensland and is suffering significant ill health. This was confirmed by an SMS message from the paternal grandmother to the maternal grandmother on 8 December 2015. The paternal grandmother is thus unable to supervise the father’s time with the child.

9. This represents a significant change of circumstances in relation to the child.

10. There are significant reservations as to the welfare and safety of the child if spending unsupervised time with the father.

Parenting

1. The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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.

2. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));

   b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).

3. Final orders as to parental responsibility were made previously and the presumption need not be considered here.

4. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

5. In light of there being a final order for the maternal grandmother to have parental responsibility, it is not required that consideration be given as to the children spending equal time or substantial and significant time with the father.

6. Accordingly other orders to be made must be considered in the light of the best interest considerations.

Best interests of the children: s 60CC

The primary considerations: s 60CC(2)

1. 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 with this factor to be given greater weight of the two primary considerations.

Section 60CC(2)(a) – “meaningful” relationship

1. The issue in this matter is the question of such a relationship with the father.

2. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

3. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

4. The risk to the child of unsupervised time with the father is discussed in the previous reasons for judgment and is further illustrated by more recent events. It need not be considered further here. Any unsupervised time with the father would not be meaningful in the context of overshadowing risk to the child.

Section 60CC(2)(b) – need to protect

1. This is the subject of significant concern to the child’s primary carer and is dealt with in the previous reasons.

2. This factor is in itself determinative of the present application.

The additional considerations

1. The additional considerations are set out in s 60CC (3) of the Act. The relevant considerations were dealt with in the previous reasons for judgment.

2. The new factual circumstances only enhance concerns for the child in the father’s unsupervised care.

Discussion

1. The father has failed to participate in the proceedings. He has chosen not to do so notwithstanding clear knowledge of the application before the Court.

2. In all of the circumstances it is in the child’s best interest that previous orders for the father’s time with the child be discharged.

3. It will be a matter from him to make further application should he see fit. He will have time with the child as agreed to by the maternal grandmother.

4. Orders will be made accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 February 2016.

Associate: 

Date:  11 February 2016