Garra-Marsh & Garra-Marsh (No.2)
[2012] FMCAfam 1135
•24 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARRA-MARSH & GARRA-MARSH (NO.2) | [2012] FMCAfam 1135 |
| FAMILY LAW – Children – parenting orders – final orders – parental responsibility – equal shared parental responsibility – sole parental responsibility – child aged nearly five years living with mother – where father discontinued his application for parenting orders – where father did not participate in preparation of Family Report – whether the mother should be required to inform the father about major long term decisions in relation to the child – whether the mother should be required to forward gifts and letters from the father to the child – best interests of the child – where mother opposed to the father spending time with the child or having any communication with her. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA, 68L |
| Garra-Marsh & Garra-Marsh [2012] FMCAfam 277 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR GARRA-MARSH |
| Respondent: | MS GARRA-MARSH |
| File Number: | SYC 1541 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 August 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Ede |
| Solicitors for the Applicant: | Abrams Turner Whelan |
| Counsel for the Respondent: | The First Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
| Independent Children’s Lawyer | Ms Finn |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All earlier parenting Orders are discharged.
The Respondent mother is to have sole parental responsibility for the child [X] born [in] 2007.
The child [X] is to spend such time and have such telephone and/or Skype communication with the Applicant Father as is agreed between the parties from time to time.
The Mother is to provide the Father with a Post Office Box address to which he can send letters and/or gifts to the child, and the Mother is to check that Post Office Box no less frequently than once each month and around the time of Christmas and the child’s birthday.
Any letters that the Father sends to the child are not to contain:
(a)any denigrating comments in relation to the Mother or the maternal family;
(b)any suggestion that the Father will spend time with her or communicate with her via telephone or Skype unless such time or communication has been agreed between the parties.
The Mother is to ensure that the child receives any letters and/or gifts from the Father sent via Post.
The Mother is to email the Father at such email address as is supplied to him in writing from time to time and in the absence of such address to [email omitted] to inform the Father about major long term decisions she makes in relation to the child, including but not limited to those dealing with the issues set out below, within fourteen (14) days of such decisions being made:
(a)Decisions regarding the child’s long term health and medical needs;
(b)Decisions regarding the child’s name, including any change of name;
(c)Decisions regarding where the child lives, including the name of the suburb in which the child lives;
(d)The school that the child attends; and
(e)Whether the child is baptised, christened or otherwise formally initiated into any religious tradition including the details of that religious tradition and the date of her initiation.
The appointment of the Independent Children’s Lawyer will be discharged after one month from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Garra-Marsh & Garra-Marsh (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1541 of 2009
| MR GARRA-MARSH |
Applicant
And
| MS GARRA-MARSH |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Applicant Father for parenting orders relating to the parties’ daughter [X] (usually known as “[X]), who is four years and ten months old. By her Response filed on 17th February 2012, the Respondent Mother seeks orders that she have sole parental responsibility for the child.
She also seeks final orders setting aside two Binding Financial Agreements and a Binding Child Support Agreement and interim orders seeking spousal and child maintenance. These financial matters will be dealt with in a separate decision.
The Father, who resides in the United Kingdom, now only seeks limited orders.
The Independent Children’s Lawyer has submitted a Minute of the proposed orders that she considers to be appropriate.
Background
A brief history of the matter was set out in the interim decision on parenting matters made on 16th March 2012 (Garra-Marsh & Garra-Marsh[1]). However, for the sake of convenience it is partly reproduced here.
[1] [2012] FMCAfam 277
The Father is a citizen of the United Kingdom and lives and works in London. He is a [omitted] by profession. The Mother is an Australian citizen and lives in Sydney. She gives her occupation as [omitted]. The parties have one child, [X], known as [X], who was born [in] 2007. She has dual citizenship of Australia and the United Kingdom.
The parties met in London in 2004 and married [in] 2006, in Sydney. They separated whilst on holiday in Sydney in March 2008 when the Mother left the Father, taking the child with her. The Father returned to the United Kingdom to live. The Mother remained living in Australia with the child.
The parties were divorced in 2009. The Father has remarried and has a child from that marriage. The parties entered into a binding financial agreement and a child support agreement in 2009.
The Father has visited Australia on five occasions since the parties separated:
a)in August 2008;
b)in April 2009;
c)in December 2009;
d)in March 2011; and
e)in March 2012.
The Father commenced proceedings by filing an Application for parenting orders on 22nd September 2011, accompanied by an affidavit. The orders that he sought included:
a)an order that the parties have equal shared parental responsibility for the child;
b)that the child would live with the Mother; and
c)that the child would spend time with the Father:
i)on various days in March 2012 when he was visiting Sydney;
ii)for blocks of time during the school holidays from 2013 onwards, increasing in length from one week in 2013 and 2014 to four weeks in 2015 and 2016;
iii)once per year for no more than four weeks in the United Kingdom after 1st January 2015; and
iv)on special or significant days such as Christmas Day, Father’s Day and birthdays.
The Mother filed a Response on 17th February 2012 in which she sought a final parenting order, saying:
I seek sole parental responsibility (both legal and physical) of my daughter [X].
In the space on the Response for Interim or Procedural sought the mother wrote:
I do not believe interim orders (as applied for by Mr Garra-Marsh) are appropriate in serving best interests of [X]
(therefore) I refer to my final orders sought.
The Mother filed a lengthy affidavit with her Response in which she set out her account of the situation, claiming that when the child was two months old, she separated from the Father “in fear of my life and [X]’s life”.[2] She deposed that the Father’s “infrequent/rare” rare appearances in the child’s life have been “consistently detrimental” to the child.[3]
[2] Affidavit of Ms Garra-Marsh 17 February 2012 page 1 (the paragraphs are unnumbered)
[3] Ibid
The parties attended a Child Dispute Conference with a Family Consultant on 12th March 2012. The Family Consultant reported in her Memorandum to the Court that the parties were unable to reach an agreement on any issue. The Mother did not consent to the Father spending any face to face time with the Father during his visit to Australia.
On 14th March an interim hearing took place, which led to orders being made on 16th March. Those orders provided that the child should live with the Mother and spend defined time with the Father on various dates in March when he was visiting Sydney. Due to the apparent intractable conflict between the parties an order was made under s.68L of the Family Law Act that the child’s interests should be represented by a lawyer.
As the parties’ affidavit evidence gave opposing views of the effect on the child of coming into contact with her father[4] an order was made for the preparation of a Family Report under the provisions of s.62G of the Act.
[4] [2012] FMCAfam 277 at [39]
The Mother filed a further affidavit relating to parenting matters on 19th April 2012. Part of the affidavit dealt with the events of 16th to 28th March in diary form.
By letter dated 14th May 2012 the Independent Children’s Lawyer, Ms Finn, advised the Court that there had been a “recent and drastic change” to the Father’s parenting proposal, which he explained in his affidavit filed 11th May. The letter advised that:
The father now puts forward a proposal that (inter alia) the mother to have sole parental responsibility for the child [X], and that he spend time with [X] at times agreed between the parties….
The parenting aspect of this matter will now either settle, or there will be some very limited issues in dispute.
The Independent Children’s Lawyer also advised that, as a result, the Father had declined to attend an interview with the Family Consultant. Accordingly, the Family Consultant had not embarked on the interview and report writing progress.
The Family Consultant, Ms M, confirmed this information in a Report to the Court dated 29th May 2012.
On 4th June 2012 the parenting Application was listed for hearing before the Court on 13th August 2012.
The Father filed a Notice of Discontinuance of his Initiating Application on 26th June 2012.
The matter remained in the list on 13th August.
The Father’s solicitor advised the Court by letter of 10th August 2012 that the Father had wholly discontinued his Application for parenting orders but remained the Respondent to the Mother’s Application to set aside two financial agreements and a binding child support agreement entered into between the parties in 2009.
The Father’s solicitor also advised:
The mother remains the Applicant for parenting orders in relation the child [X]. That Application is currently listed for Hearing before his Honour at 10am on 13 August 2012 and proceed undefended by our client. On the last occasion, his Honour also noted that he would make directions in relation to the property aspects of the proceedings[5] on 13 August 2012.
[5] To be dealt with separately
Orders Sought
The Mother persists with her Application for sole parental responsibility for the child but does not wish to have any other parenting orders made. Her stated position is that the child should not have any form of contact with her father until she attains the age of 18 years.
The Father had sought some parenting orders in his Minute of Parenting Orders Sought by the Father of 1st June 2012. However, having discontinued his Application for Parenting Orders, the Father can be taken as not pressing those proposed orders.
Nevertheless, the Court can, in my view, still have regard to those proposed Orders, as the Court has the obligation under s.60CA of the Family Law Act to regard the best interests of the child as the paramount consideration when it is considering making parenting orders. The Court is not bound to have regard only to orders advocated by a party when considering making parenting orders. Because of the obligation to consider the best interests of the child as the paramount consideration, the range of orders to be made by a court is at large.
The Father’s proposed orders provide that:
a)the Mother should have sole parental responsibility for the child;
b)the child should spend such time and have such communication via telephone or Skype with the Father as the parties agree;
c)the Mother should ensure that the child receives any letters or gifts sent by the Father via the post;
d)the Mother should email the Father to inform him about major long term decisions in relation to the child, including such decisions about:
i)the child’s long term health and medical needs;
ii)the child’s name, including any change of name;
iii)the child’s address and any change of address;
iv)the school or school attended by the child; and
v)whether the child is baptised, christened or otherwise formally initiated into any religious tradition, including the details of that religious tradition and the date of her initiation.
The Independent Children’s Lawyer has submitted a Minute of proposed Final Parenting Orders. In a number of respects, the ICL’s proposed orders are similar to those proposed by the Father in his Minute of 1st June 2012.
Orders 1, 2, 5 and 6 proposed by the ICL are essentially similar, if not identical, to Orders 1, 2, 3 and 4 proposed by the Father in his Minute.
The Independent Children’s Lawyer also proposes these orders:
3. That the mother is to provide the father with a Post Office Box address to which he can send letters and/or gifts to the child, and the mother is to check that the Post Office Box no less than once a month and around the time of Christmas and the child’s birthday.
4. That any letters that the father sends to the child are not contain:
a.any denigrating comments in relation to the mother or the maternal family;
b.any suggestion that the father will spend time with her or communicate with her via telephone or Skype unless such time or communication has been agreed between the parties.
Submissions
Neither party gave oral evidence. Indeed, the Father was in the United Kingdom and therefore did not attend Court. He was represented by his solicitor, Ms Ede. The Mother attended Court and made an oral submission.
The Independent Children’s Lawyer, Ms Finn, submitted that the parenting matters were being dealt with in circumstances where the Father had discontinued his application for parenting orders. She told the Court that the Mother agreed to the proposed order that she have sole parental responsibility for the child.
Ms Finn told the Court that the Mother did not wish to disclose her residential address because of the family violence that she alleges took place and she apparently still fears.
It was a concern that the child would not have a meaningful relationship with the Father because:
a)He lives too far away; and
b)The parties are unable to agree about parenting arrangements.
Ms Finn submitted that in proposing the orders in her minute of Orders she was trying to ensure that the child would have some communication with her father. She would benefit from knowing who her father is and that he cares about her.
It was further submitted by the Independent Children’s Lawyer that there was a real concern that the Mother does not see any benefit in the child [X] knowing who her father is. The Court needs to make orders to give the Father some basis about the child’s life.
Further, there is a need to for the Mother to be required to provide a post office box for the receipt of correspondence from the Father and to check that post office box at least once a month.
The Mother submitted to the Court that she sought sole parental responsibility for the child. She also said that she wanted what she described as “Fully protective orders until she ([X]) is 18”. She said that the Father had consciously and purposefully positioned himself against her and the child; he has, she said, been destructive and aggressive. He was unable and unwilling to play a positive role in [X]’s life.
The Mother went on to say that she really needed to be free of the Father’s attempts to spend time with the child. It would not be right to be involved with him.
Because the Father has caused such distress to her and to [X], there should be no ordered contact between the present time and the time the child attains the age of 18. She denied that her actions were motivated by hate or vengeance.
The law to be Considered
The Objects of Part VII of the Family Law Act are set out in subsection 60B(1) of the Act and the principles underlying those Objects are contained in subsection 60B(2).
The Family Law Act provides at section 60CA that a Court must regard the best interests of the child as the paramount consideration when deciding whether to make a parenting order affecting the child concerned. The Court determines what is in the child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
It has been held by the Full Court of the Family Court that the objects and principles contained in s.60B provide “the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case” (see Goode v Goode[6] at [10]).
[6] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of child abuse or family violence (s.61DA(2)) and may be rebutted by evidence that it would not be in children’s best interests for their parents to have equal shared parental responsibility.
Section 61DB provides that if the Court has made an interim parenting order, as it has in this case, when making a final parenting order the Court must disregard the allocation of parental responsibility made in the interim order.
If the Court orders that a child’s parents should have equal shared parental responsibility, the Court is required by subsection 65DAA(1) of the Act to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent.
If the Court does not make that order, it is required by subsection 65DAA(2) to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.
All the matters in the above sections have been considered.
Parental Responsibility
In this case, the only viable order appears to be an order that the mother is to have sole parental responsibility for the child [X]. The parties seek no other order and the Independent Children’s Lawyer has specifically proposed such an order.
The child lives with the Mother in Australia and it is not proposed that this situation will change. The Father lives in the United Kingdom and the “tyranny of distance” militates against an order for equal shared parental responsibility.
More significantly, the communication between the parties is so poor and the conflict between them is so great, that an order for equal shared parental responsibility would be completely unworkable.
The Mother is even opposed to the idea of being required to inform the Father of major long term decisions about the child’s life, such as health, the child’s name, where the child lives, where she goes to school and whether she is to be involved into any form or religion.
I am satisfied that the only order to be made is that the Mother is to have the sole parental responsibility for the child [X].
The best Interests of the Child
As there is not to be an order that the child’s parents are to have equal shared parental responsibility for her, the Court is not required to consider the matters in subsections (1) and (2) of section 65DAA.
However, the Court must still consider the child’s best interests, as is required by s.60CA of the Act. In order to do so, the Court must consider the maters in section 60CC.
The primary considerations are contained in subsection 60CC(2). The Mother is implacably opposed to the Father having any contact or communication with his daughter at all and sees no benefit to her in having any relationship with her at all, let alone a meaningful relationship. Her views are set out in her various affidavits, in none of which does she concede that the Father has been able or willing to take any positive step towards establishing a positive relationship with the child.
The very nature of the proceedings makes it difficult and well-nigh impossible to make findings of fact in respect of the diametrically opposed accounts given by the parties in their affidavits. In some ways, the proceeding was conducted as if it were an interim hearing, as none of the evidence was tested. The Father did not attend Court at all and was not required for cross-examination. The Mother did attend Court, but neither the Father’s solicitor nor the Independent Children’s Lawyer sought to cross-examine her.
There was no Family Report, because the Father, once he had decided to discontinue his Application for parenting orders, declined to participate in the interview process for the Report.
Consequently, the Court was left in the position where it was unable to make findings of fact on contentious issues (cf Goode v Goode[7] at [68]). The parties’ affidavit evidence was untested and there was no independent evidence from a Family Consultant.
[7] supra
That said, the mother’s descriptions of the Father’s behaviour during the times he spent with her in Sydney as a result of the interim orders hardly accord with her description of him as aggressive or threatening. In her affidavit of 19th April 2012 the Mother describes the Father at page 3 of the affidavit (regrettably, the mother did not number any of the paragraphs) as bringing the child a present of an activity book, which the child appeared to like. He later produced more activity books for her. The Mother appears to take exception to the Father referring to himself as [X]’s father:
…he said, “This is from MY Daddy, YOUR Grandpa”, with great emphasis to [X], who appeared confused at what he was telling her.[8]
[8] Affidavit of Ms Garra-Marsh 19.4.2012 at page 3
On 21st March 2012 the Mother describes the Father as saying to the child:
“You know I’m your Daddy, don’t you?”
[X] replied, looking away, “Yup, my Daddy’s Daddygramps”
Straight away, Mr Garra-Marsh corrected her with a critical tone, “No [X], Gramps isn’t your Daddy, he’s your Grandfather. I’M your Daddy”.
[X] was silent and turned away to pick more leaves and grass. This was clearly making her feel very uncomfortable. I wanted to tell Mr Garra-Marsh not to speak to [X] like this, that it would only have a negative effect on her, but I kept these thoughts to myself, in an effort to avoid conflict with [X]. I believe Mr Garra-Marsh knew this was wrong and upsetting for me to witness him doing with [X] – that he spoke to [X] this way to try and bait me into “starting a conflict in front of her”, but I’m accustomed to Mr Garra-Marsh doing this in the past, many, many times and I will not fall for it.[9]
[9] Affidavit of Ms Garra-Marsh 19.4.2012 at page 9
In her notes of the time spent by the Father with the child on Wednesday 28th March the Mother deposed:
[X] and I met Mr Garra-Marsh at the library again. Soon after we arrived, Mr Garra-Marsh started repeatedly referring to himself as “Daddy”. [X] was unresponsive to this and continued to call Mr Garra-Marsh [first names omitted] throughout the entirety of the contact time (as she has on all other contact times during this two week period).[10]
[10] Ibid at page 13
The Mother’s affidavit material does not give any indication that she has taken any steps to assist the child in establishing a meaningful relationship with her father, quite the reverse, it would appear.
The Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. The Mother claims that the Father poses a threat to her and to the child and the Father denies it. The Mother refers in her affidavit to contacting the police to claim that she felt threatened by the Father, but there is no family violence order in force, nor did the police take any action. The Mother even complained that the Father was arranging to spy on her, although the evidence in her affidavit is flimsy, at best.
The child is too young for her views to be taken in to account. She has a close relationship with her mother, on her mother’s evidence, and appears to regard her maternal grandfather as a father figure. She has very little relationship with her father. It should be taken into account that [X] was only about two or three months old when her parents separated and she has very little contact with him, as he has remained living in the United Kingdom whilst she has lived with her mother in Australia.
[X] is a little girl who was born [in] 2007. Presumably she is of a normal level of maturity for a child of a few months less than five years of age.
If [X] were to be separated from her mother for any length of time it would most likely be distressing for her. She hardly knows her father and, if her mother has her way, she will not know him at all.
The practical difficulty and expense of the child spending time with her father arises not only from the fact that he lives in London and she lives in Sydney, but from the fact that her mother is implacably imposed to her father having any communication with her or even any knowledge of major events in her life, at least until she turns eighteen.
If, as the Mother proposes, the child has no contact or communication with her father for the next thirteen years, it appears likely that she will lose any chance of forming any relationship with him at all. It is hard to see that this would be in her best interests, despite her mother’s vehement protestations to the contrary.
However, the Father has chosen not to pursue his Application for parenting orders and the Court is left without the evidence necessary to take the matter any further forward. The proposals of the Independent Children’s Lawyer will at least give some opportunity, however faint, for the child to have a relationship with her father and I propose to make orders accordingly.
The Independent Children’s Lawyer has done the best she could be expected to do with the limited material that she has had to work on. She may wish to apply for a costs order. Her appointment will continue for a month after the date of these orders and then the Independent Children’s Lawyer will be discharged.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 October 2012
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