Francis and Duggan

[2009] FamCA 1097

FAMILY COURT OF AUSTRALIA

FRANCIS & DUGGAN [2009] FamCA 1097

FAMILY LAW – CHILDREN – Best interests of a child – with whom a child spends time and communicates

Family Law Act 1975 (Cth)

APPLICANT: Mr Francis

RESPONDENT: Ms Duggan

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: MLF 2329 of 2006

DATE DELIVERED: 4 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Hogg and Reid

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McGregor

Orders

1. That the appointment of the Independent Children’s Lawyer be discharged as and from 4.00pm on Friday 4 December 2009.

2. That paragraph 6 of the orders made by the Court on 14 April 2008 is discharged.

3. That the mother have liberty to telephone the children K born … December 1999 and T born … June 2001 on Sundays between 4.30pm and 5.00pm (Melbourne time).

4. That for the purposes of paragraph 3, the father facilitate any such call by having the mobile telephone number provided to the mother and the telephone charged to receive calls by the children on Sundays at the said time.

5. That the father have liberty to apply on short notice in the event that the mother’s conduct warrants a suspension of paragraph 3 above.

6. That all outstanding applications be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and solicitor appearing as counsel to attend.

2. That the father’s solicitor serve a copy of these orders and in due course the reasons for judgment on the mother by post at the address known and provided by the Independent Children’s Lawyer.

3. That the reasons be transcribed.

4. 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 Francis & Duggan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2329 of 2006

Mr Francis

Applicant

And

Ms Duggan

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 6 October 2009, Registrar Field had this case before her and adjourned it to today’s judicial duty list on the basis that it was time to finally put the matters to rest.  It is a parenting application by the father involving two children, K, born in December 1999, and who is therefore nine years of age, and T who was born on in June 2001, and is therefore has not long turned eight.  Both of those children live with Mr Francis and have little communication with their mother. 

2. The little communication is by telephone which occurs about half of the times that were regulated to have occurred by order. 

3. Registrar Field provided that the mother be served with her orders, and although I do not have an affidavit of service of those documents, I have been handed two letters, one dated 13 October and the second dated 19 October, addressed to the mother at an address which is not where she lives but which I am told documents may be delivered.  I have been advised by the Independent Children’s Lawyer that in her contact with the mother it would seem that the address is one to which information can be sent.

4. Notwithstanding there is no affidavit of service, I am satisfied that the mother is aware of the proceedings today and has chosen, for reasons which are not entirely clear, not to participate.  For the sake of these children this case needs to be finalised. 

5. The parties had a relationship from 1996 until October 2004 when they finally separated.  The children were born during that relationship. 

6. I have read the affidavit of the father which has been filed in the proceedings.  That indicates that as a result of proceedings instituted by the Department of Human Services, there were Children’s Court proceedings in 2006, as a result of which the Department recommended and ultimately provided, the children to the father.

7. Since then the father has been the primary caregiver of the children.  The matter came before Young J in March 2008 and in April 2008.  On 14 April 2008 his Honour made final orders in respect of the father having sole parental responsibility for the children and that they live with the father.  His Honour also made some interim orders in relation to contact to which I shall turn in a moment.  It is important to note that on 14 April 2008, the mother not only appeared but she was represented by counsel. 

8. Under the interim orders, the mother was to spend time with and communicate with the children at the B Contact Centre under supervision at times and dates to be agreed.  B Contact Centre terminated the arrangement because the mother failed to fulfil her part of the obligations.  It is rather interesting to note that on 3 April 2009, B Contact Centre wrote to the father setting out the various obligations and their letterhead has the quote, “We never give up.”  It seems – and probably sensibly in the circumstances – that they have. 

9. It seems pointless to make orders for parties to go to contact centres if they will not fulfil their obligations and B Contact Centre provides invaluable service.  There are plenty of other people who require those services.  Young J’s orders in 2008 also provided that the mother could send communications to the children by letters, cards and gifts.  Those were to be sent through the Independent Children’s Lawyer who was to inspect the correspondence to determine whether it was suitable to pass on to the children.  Sadly that correspondence has not happened.

10. His Honour’s orders also provided for the children to have telephone communication with their mother each Sunday with the father being responsible for making the telephone call between 4.30 pm and 5 pm.  The affidavit of the father sets out that to some extent that has worked and that the children at times do seem to enjoy having a meaningful relationship with their mother, albeit restrained and restricted.  On Sunday, 8 June however, where the mother and a friend were speaking to the children on a telephone call referring to the father as “a fucking dog” and “a fucking cunt”.

11. It is worth reflecting on the fact that these children are very young and vulnerable, let alone impressionable.  That sort of behaviour between adults is bad enough but to involve children in the denigration of another parent – whatever the circumstances may be – does not augur well for any future relationship between the mother and children.  His Honour’s orders therefore unashamedly have not worked.  There is no evidence from the mother, and there has been no participation in any meaningful way by the mother now for most of 2009.

12. What the father otherwise sets out in his affidavit is the way in which he has raised the children in the absence of the mother, and to that extent he needs to be commended.  The evidence indicates that the children are doing well at school and are enjoying good health;  that they have a happy childhood and have a number of friends that care about them.  Those are the general indicators of children in a happy environment.  That seems to be entirely inconsistent with the way the mother behaves.  If she is intending to behave as she did in June in the future, these children will obtain little benefit in having any relationship with her, let alone a meaningful one.

13. I am satisfied in the circumstances that the father has done a good job in caring for these children and there is no reason for me to believe that that will not continue into the future. 

14. The Independent Children’s Lawyer said that in a telephone discussion with the mother, the only explanation for her absence and non involvement has been a fear of another person who is apparently in some way connected to the father.  Be that as it may, it is not an explanation in my view when we are dealing with children as young as K and T.

15. Combined with her absence, her lack of response in filing appropriate documents, what occurred in June and her lack of compliance with the orders of Young J, the mother needs to show that she wants to have a meaningful involvement in the lives of the children.  I see no reason to constantly put the pressure on the father to endeavour to maintain a meaningful relationship between the mother and the children if she is intending to behave like she has.

16. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) sets out that a court should not make an order unless it is in the best interests of the children.  The best interests of the children is the paramount, but not the only consideration.  In determining what is in the best interests of the children the court has the guidance of s 60CC.  The first part of s 60CC sets out what has been described as “the twin pillars”.  Those are the protection of children from violence and abuse.  The second consideration is the benefit that children may have from having a meaningful relationship with their parents.

17. In this case those two objects are in conflict.  The behaviour of the mother does not augur well for any relationship let alone a beneficial one with these children.  The first of the two considerations is one that should take priority over the second in this case.  I have taken into account all of the other matters in s 60CC which are the additional factors, but the onus of caring for these children into the future is going to fall upon the father, and as I said, I am satisfied he has done a commendable job.

18. The question therefore is what orders should be made having regard to the need to protect the children whilst at the same time trying to endeavour to comply with the provisions of s 60B.  Because of the lack of evidence from the mother, plus what I have already set out, it is hard to see how the objectives of s 60B are ever going to be carried out other than those which will fall to the functions of parenting by the father.  The sensible solution therefore is to discharge the orders of Young J in relation to the arrangements about sending letters, cards and gifts, but noting that the mother may do that if she so chooses.  If the Independent Children’s Lawyer is able to pass them on, so be it. 

19. The more important issue seems to be telephone communication, which is the only line of communication between mother and children.  The father has said that he has now acquired a mobile telephone and he will provide the number of that phone to the mother and she can telephone the children if she so desires.  The only order I propose to make is that she have the liberty to make the telephone call on Sundays between 4.30 pm and 5 pm and to facilitate that call the father has the obligation to have the telephone number connected and the phone on at that particular time.

20. The father will have liberty to apply into the future, notwithstanding I am going to dismiss all outstanding proceedings, on the basis that if the mother behaves the way she has in the past then he may come back to the court and seek to discharge even the limited orders that the mother has to have time with the children. 

21. The father’s amended application also sought three other orders of some note.  One is that he do all things necessary to facilitate the children calling the mother in accordance with their wishes.  I do not propose to make that order. 

22. The second of the three orders is that the mother be restrained from discussing the proceedings, abusing, insulting, belittling or otherwise denigrating the father or any member of his household.  That also seems to me to be a pointless exercise having regard to the fact that if the June incident is any indication, I would be very doubtful as to whether the mother would comply, and that would simply set up a breach proceeding.  It seems more logical to me to rely on the father coming back to court – albeit I understand the dilemmas associated with that.  A judge or federal magistrate reading these reasons will understand that the issue will be whether the orders should be stopped.

23. The third order is that:

    The mother, her servants and agents be, and are hereby restrained by injunction from attending the children’s school and their residence.    

24. There is no evidence at this stage that the mother has attended or done anything that would satisfy me in the circumstances that warrants that injunction, but again the father can use the liberty to apply clause if that situation arose.  The father also applies – and it is not opposed by the Independent Children's Lawyer – that she be discharged from the proceedings.  She has been in this case for some three years and done an admirable job trying to juggle the needs of these children with a mother who has not taken any meaningful part in the proceedings, and a father who is struggling to deal with orders to try and keep the communication lines open.

25. I will discharge the Independent Children's Lawyer’s appointment but leave the request open that in the event that some communication comes from the mother to the children, if she has got the time she will pass that on.  The mother will understand hopefully in reading these reasons that she has not done any service to herself, let alone the children, by not participating.  It seems to me in all the circumstances that the appropriate orders which are in the best interests of the children are simply to give the mother liberty to contact the children on Sundays between 4.30 and 5, using the telephone number provided by the father, and that his only obligation to facilitate that is to keep the line open and the phone charged for that particular purpose.  As I said, I will otherwise give liberty to apply.

26. I propose otherwise to discharge the Independent Children's Lawyer’s appointment and dismiss all outstanding proceedings.  I will formally discharge the relevant paragraphs of Young J’s orders.  I will also certify the attendance of practitioners.  I will also make an order that the father’s solicitor serve these orders and reasons in due course to the address known to and provided by the Independent Children's Lawyer. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  19 November 2009