Fray and Round

[2007] FamCA 593

FAMILY COURT OF AUSTRALIA

FRAY & ROUND [2007] FamCA 593

FAMILY LAW - CHILDREN – Children’s Cases Program (CCP) - Less Adversarial Trial (LAT) – Undefended hearing – Sole parental responsibility - Child to live with the father – No other parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Fray

RESPONDENT: Ms Round

INDEPENDENT CHILDREN’S LAWYER: Marks Griffiths & Bova

FILE NUMBER: SYF 3667 of 2005

DATE DELIVERED: 25 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 25 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Sweeney

RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Ms S Mordaunt

Orders

1. That the father have the sole parental responsibility for the child of the parties A (“the child”) born … June 2004.

2. That the child live with the father.

3. That the order made 28 March 2006 for the provision of a single expert report by Dr R, psychiatrist is discharged.

4. That the oral application of the father for an order for costs is dismissed.

NOTATION:

A.The independent children’s lawyer has informed the Court that an order for costs is no longer sought against the mother and that the Legal Aid Commission of New South Wales has waived the fees that it might otherwise have sought from the father.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF3667 of 2005

MR FRAY

Applicant

And

MS ROUND

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant father seeks parenting orders in respect of the child of the parties’ relationship, A (“the child”) who is two years of age having been born on … June 2004.

2. The child lives with the father.

3. The parties cohabited for a period of approximately four years which commenced in June 2001 and concluded when they finally separated on 27 July 2005.

4. The child has lived with the father for most of the period of time since the parties separated.

5. The proceedings before me today proceeded on an undefended basis.

6. There was no appearance by or for the mother.  The mother clearly was aware of the date fixed for the hearing of these proceedings on a final basis given her letter addressed to the Court dated 23 May 2007 (which became Exhibit B, copies of which have been provided to the father’s solicitor and the independent children’s lawyer).

7. In addition, I made orders on 10 May 2007 when the matter was last before me, when there was no appearance by or for the mother, for the mother to be served personally with written notice of the orders sought by the father and that such service be effected by 5.00pm 18 May 2007.  The proceedings on that occasion having been adjourned for final hearing on an undefended basis today.

8. The father is legally represented.  His solicitor has sworn an affidavit of today's date which I have read which makes clear the mother's knowledge that the matter was listed for a final hearing today and the orders that would be sort.

9. In addition, I have read the Affidavit of Service of Mr W sworn 18 May 2007 which is an affidavit that demonstrates compliance with Order 2 made 10 May 2007.

10. In all the circumstances I am satisfied that the mother has received both ample notice of the date fixed for hearing and the orders to be sought and has also acknowledged her notice in that regard.

Historical background

1. Brief historical background to these proceedings, including relevant orders, is as follows.

2. On 5 September 2005 a Registrar in this Court made interim parenting orders by consent which provided for the child to reside with the father;  for the parties to have joint responsibility for the long term care, welfare and development of the child and individual responsibility for the daily care of the child during such periods of time that the child is in the care of either of them;  and that the mother have supervised defined contact, as it was then described.

3. There followed a recovery order made in this Court, which was complied with, whereby the child was recovered from the mother and returned to the care of the father.

4. On 14 November 2005 the child representative, as that person was then known, was appointed (now referred to as “the independent children’s lawyer”).

5. On 9 January 2006 interim orders were made which suspended contact and residence, as it was then described, between the mother and the child until close of business on 16 January 2006.

6. On 16 January 2006 the matter proceeded before me in accordance with the Children's Cases Program (now known as Less Adversarial Trial).  Both parties were legally represented.

7. On that day orders were made varying the orders made 9 January 2006 so that those orders were to continue until further order and a family report ordered to be prepared.  I noted that the mother intended to adduce expert evidence from her past treating psychiatrist or psychologist dealing with her current emotional state and capability to have contact on a supervised or unsupervised basis as well as her capacity to comply with Court orders and not engage in abusive conduct towards the father or any member of the father's family.

8. On 28 March 2006 the matter was again before me for additional directions.  There is no appearance by or for the mother.  I discharged the order for preparation of a family report.  I made further orders to enable there to be a single expert report prepared by Dr R, psychiatrist, in relation to the matters identified by me.  I noted that the fees otherwise payable by the mother in relation to Dr R’s fees were waived by the Legal Aid Commission of New South Wales.

9. On 15 June 2006 an apprehended violence order was made in the Local Court, Sydney for a term of two years for the protection of the father from the mother.

10. On 21 March 2007 the matter having been restored to the list for further directions and there not being any appearance by or for the mother, I made directions that the Affidavit of the father sworn 21 March 2007 be served on the mother no later than 4 April 2007, as well as certain other documents described in the terms of the order.  Otherwise, the proceedings were set down for hearing before me on an undefended basis on 16 April 2007.

11. I am satisfied that the orders regarding service were complied with in accordance with the affidavit of service which was then filed.

12. On 16 April 2007 the matter was listed before me in accordance with the last mentioned orders.  The mother appeared in person and the father was represented by the same solicitor who has represented him throughout.  The independent children's lawyer also appeared.

13. On the application of the mother, the proceedings were stood over for further directions on 10 May 2007, the mother having informed me that she had given preliminary instructions to a particular solicitor who was absent on holidays until the end of April 2007.

14. The mother was urged to seek immediate legal advice from the same firm of solicitors and she indicated that was her intention.

15. On 10 May 2007 orders were made to which earlier reference has been made.  The mother did not appear nor was she represented.  I had caused enquiries to be made of the solicitor previously nominated by the mother as having been the solicitor to whom she had given preliminary instructions.  I received information from either the solicitor for the father or the independent children's lawyer that no instructions had been received.

16. Consequently, directions were made for the matter to proceed on an undefended basis before me today upon certain terms, including service, to which I have referred.

Relevant matters for consideration

1. In proceedings in which parenting orders are sought the best interests of the child is the paramount consideration as is required by s60CA of the Act.  I propose to make findings in relation to relevant matters that fall for consideration for the purpose of determining the best interests of the child in accordance with s60CC.

2. The child's age is such that his views do not carry any significant weight, if indeed they can be reliably ascertained given his very young age of two years.

3. The evidence before me, which includes the questionnaire completed by the father and his affidavit to which earlier reference has been made, enables me to find that the child has a loving relationship with him.

4. The father has shown the capacity to provide for the child's physical, emotional and intellectual needs due to the period of time that the child has lived with him;  the appropriate physical circumstances;  environment that has been provided for him;  and the assistance the father receives from family members.

5. I am satisfied that the child has been making appropriate progress with his physical and emotional development in the care of the father and those upon whom he relies.

6. The child appears to have been living in a stable environment following a routine which has proved to be for his benefit.

7. The recent amendments to the Family Law Act which commenced on 1 July 2006 lay much emphasis upon consideration being given to not only a meaningful relationship between the child and parents, but also the need to protect the child from family violence which includes abuse.

8. Whilst there is no evidence before me of the mother having been violent or abusive to the child there is disturbing evidence of her abusive and threatening conduct towards the father as is evidenced by the Affidavit the father swore on 22 March 2007, as well as the current apprehended violence order to which earlier reference has been made.

9. Exhibit C also contains material which has caused me apprehension in terms of not only the complaint which led to the apprehended violence order for the protection of the father but perhaps the mother's unstable lifestyle and perhaps serious health issues which have led to a number of complaints to the police by other people about her conduct.

10. I do not make any findings in that regard.  However, that is part of the evidence before me which also provides additional concern as to the overall state of health of the mother.

11. The further matters I take into account are that the mother had established a new relationship with a male person who accompanied her to the Court on 16 April 2007 who she referred to as being a person who was providing her with a relationship of substance.  Indeed, the information the mother gave me was that he was assisting her for the purpose of obtaining legal representation.

12. The mother's letter being Exhibit B refers to her being pregnant;  the circumstances in which she lives were not referred to;  nor did she set out any proposals that she had for re-establishment of the relationship between herself and the child.  Her complaint seemed to be a combination of criticisms of the father and a submission that I should not make an order for costs against her.

13. I have concluded that orders should be made as sought by the father.

14. The mother has had ample notice that such orders were being sought.

15. Exhibit B does not contain any counter proposal.

16. I did express concern regarding the lack of any order to provide for communication and periods of time to be spent by the mother with the child.  However, as has been submitted, and I accept there are many parents in the community who are able to make arrangements between themselves for one or other of them to spend time with the child without the need for a Court order to be made.  Consequently, that option always remains available, if indeed agreement between the parties can be reached and a constructive civil relationship established between them for the benefit of the child.  Whether or not that will occur is something upon which I cannot speculate.

17. Section 61DA of the Act provides a presumption of equal shared parental responsibility between parents for a child which may be rebutted on one of a number of grounds.

18. I am satisfied that that presumption is rebutted on the grounds of the best interests of the child and/or in the alternative the findings of family violence, including abuse, to which I have referred.

19. In my view, the father having been solely responsible for the day to day living arrangements for the child, the child's care, his physical and emotional development as well as the financial support of the child without any contribution from the mother, leads me to conclude that it is in the child's best interests for the father to have the sole parental responsibility for the child.

20. For the same reasons I am also satisfied that it is in the child's best interests that the child live with the father.

21. So far as periods of time to be spent between the child and the mother are concerned, given the lack of any evidence provided by the mother as to her current proposals for the future care of the child and her changed circumstances, the manner in which those proposals would be carried out, the lack of any indication from her which acknowledges her past abusive behaviour described and referred to in the father's Affidavit sworn 22 March 2007 and her proposals and commitment to change the relationship to a positive constructive one, I am not satisfied that it is in the child's best interest that I should make an order which provides for communication with and periods of time to be spent by the child with the mother.

1. However, as previously referred to the parties are free to make their own arrangements should they choose to do so at any time in the future.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated: 18 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRAY & ROUND