Gilbert and Little

FAMILY COURT OF AUSTRALIA

GILBERT & LITTLE

[2015] FamCA 1098

FAMILY LAW – CHILDREN – Application by father seeking final parenting orders that children live with him and spend supervised time with the mother – Application by father to relocate children to Queensland – Allegations of violence and drug use – Orders that children live with the father – Order that father have sole parental responsibility for the children – No orders made in respect of mother spending time with the children - Orders that children communicate with the mother – Injunctive orders

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT:

Mr Gilbert

RESPONDENT:

Ms Little

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

HBC

385

2009

DATE DELIVERED:

25 November 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

25 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cann

SOLICITOR FOR THE APPLICANT:

Cann Legal

COUNSEL FOR THE RESPONDENT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Wylie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders be discharged in relation to B born … 2001 and C born … 2006 (‘the children’).
The children live with the father.
The father have sole parental responsibility for the children subject to the father:
(a)taking reasonable steps to provide to the mother a copy of all reports from the school provided that the father is at liberty to remove any information from the reports which identify the school;
(b)taking reasonable steps to advise the mother of any significant medical issue concerning the children subject to the views of the children with respect to the disclosure of that information; and
(c)informing the mother as soon as practicable of any significant issue pertaining to medical treatment to be administered to the children, including examinations, operations, major medical treatment, dental and orthodontic treatment, speech therapy and physiotherapy and in relation to any attendance of the children upon any psychologist or psychiatrist
The mother be and is hereby restrained from attending any school attended by B and/or C for the purpose of spending time with the children without first obtaining the written consent of the father or in accordance with orders made by a court exercising jurisdiction under the Family Law Act1975 (Cth).
The father shall inform the mother of relevant telephone numbers by which to make communication with C in accordance with these orders and by which he may provide information referred to in order 2 by forwarding that information to the mother at …. or such other email or residential or postal address as is agreed between the parties.
Not before the end of the last Tasmania school term in 2015, the father be permitted to permanently relocate with the children to South East Queensland.
There is no order as to time to be spent by the mother with B, however if B expresses a wish to spend time with the mother then the father is to take reasonable steps to facilitate such time (including supervised time) with B as the parties may agree in writing in accordance with the views expressed by B.
The mother spend such time (including supervised time) with C as the parties may from time to time agree in writing taking into account any views expressed by C to spend time with the mother.
The mother may communicate with C by telephone once in every fortnight on a Tuesday between 7.00 p.m. and 7.30 p.m.
The parties share equally the costs of any Child Contact Service utilised by the parties for the purposes of supervised time with the mother pursuant to these orders.
The mother may communicate with the children by way of letter, card and the sending of gifts for the children's birthdays and at Christmas. To facilitate this order the father will keep the mother informed as to the children's mailing address from time to time and, the father will ensure that the children receive any correspondence or gifts forwarded by the mother in a timely manner.
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.
All extant applications are dismissed.

IT IS DIRECTED

The father and the Independent Children’s Lawyer make arrangements for the children to meet with the Independent Children’s Lawyer so that the orders can be explained to them.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

NOTATION:
a)It is noted that the Mother intends to demonstrate her commitment to the children by regularly corresponding with them and by sending gifts and by virtue of telephone communication as set out in this order.
b)The Father will not rely on the Rule in Rice & Asplund (1979) FLC 90-725 in relation to any Application by the Mother to spend face to face time (whether supervised or unsupervised) time with the children provided that no Application is made within six (6) months of the date of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilbert & Little 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 HOBART

FILE NUMBER: HBC 385 of 2009

Mr Gilbert

Applicant

And

Ms Little

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

These are proceedings between Mr Gilbert, (‘the father’) and Ms Lambie, (‘the mother’), relating to their children B, aged 14, and C, aged nine (‘the children’). These proceedings were commenced in April 2015 in which application the father sought sole parental responsibility of the children, that the children live primarily with him, and that he be permitted to change the children’s primary place of residence from the state of Tasmania to South-East Queensland.
The mother initially filed a response on 12 May 2015 in which she sought equal shared parental responsibility, that the children not be permitted to relocate to Queensland, that the children live with the father and spend time with the mother during alternate weekends, half school holidays, and the mother have liberal communication with the children.
At that time, the mother was represented. An Independent Children’s Lawyer was appointed and the matter was winding its way towards a hearing. The mother ceased being represented and a notice of ceasing to act was filed on 19 November 2015 by the mother’s then legal practitioner. The matter had moved, it seems, along quite a distance by that time in that the mother had herself moved to live in Queensland and the parties had reached an agreement which is Annexure “A” to the affidavit of the father sworn 5 November 2015 and filed 9 November 2015.
The mother has now abandoned the proceedings and one of the documents exhibited to me today is an email sent by the Independent Children’s Lawyer to the mother yesterday, which I have marked Exhibit 1, informing her of what was happening in respect of the matter. The mother was called today and it is clear from the evidence before me that the mother is dealing with her own problems at the moment and has chosen not to become further involved in these proceedings.
The material upon which the father relies is:-
(a)his initiating application, filed 24 April 2015;
(b)his affidavit of 20 April 2015;
(c)his application in the case that the matter be determined today, filed 9 November 2015; and
(d)his affidavit of 5 November 2015.
These documents were read into evidence without controversy as far as I am aware.
The mother had filed a response, her affidavit of 12 May 2015, a further affidavit filed 11 June 2014; and an affidavit by a friend filed 12 May 2015.
The Court was assisted by way of a Children and Parents Issues Assessment prepared by family consultant Ms K and dated June 2015 and further assisted by a particular report of Mr D, a psychologist who, as a single expert, provided a limited report particularly in relation to the elder child, B.
The father is aged 34. He has trade qualifications and has a broader family. He has remarried to Ms Gilbert and there are two children of that relationship, Ash and Oliver, who are aged six. Ms Gilbert has two children from a previous relationship, E, aged 14, and Mr I, aged 18. There is another child, J of the father and his present wife. The mother is aged 32 and has a number of children outside the relationship, including M, aged five.
Since separation, the mother has been engaged in a number of relationships, including with a Mr G, a Mr F and a Mr H. I will refer to that a little later.
The parties separated in 2008 and an order was made dissolving their marriage in 2009. The parties entered into a substantially equal time arrangement, which very early this year changed, and the children have lived primarily with the father. The father’s present wife has family in South-East Queensland. The father has given evidence that he has better employment prospects in that area.
This is a matter where each of the parties raised allegations against the other with regard to violence. The father concedes one act of violence, for which he offers contrition, but says that the mother has a history of violence throughout their relationship. He said that this is associated with her abuse of alcohol and her abuse of drugs. He set out his view of that history in paragraph 13 to 18 of his primary affidavit.
Since separation, the father asserts that there has been a shared care arrangement for the children, which sometimes works and sometimes doesn’t work. He says that the mother has become more affected by her substance abuse issues and perhaps some broader issues, and that she represents a danger to the children and to others, particularly when affected by alcohol or illicit drugs. There have been a number of instances where the mother has been charged with offences, including stabbing her then husband Mr G, for which she received an eight month suspended sentence, sending an offensive picture to her boyfriend, and other offences. The father has listed a frightening history of drug and alcohol abuse by the mother and shown its impact upon the children. He also asserts that the children were at risk in the mother’s care, and that appears to be at some level substantiated by reports from the Child Protection Authorities.
B has expressed strong views that she wishes to live with the father and that she is open to the move to South-East Queensland. I accept the evidence of Mr D in relation to the strong and self-determined views of that child. C is obviously impacted by the views of his sister and the somewhat, and perhaps understandably, ambivalent views of the father with regard to the mother, but still enjoys time with the mother, provided it is by telephone and regular.
The father, sets out in his affidavit, at paragraphs 65 to 75, the risks to the children and also sets out the unhappiness between the mother and his present wife, including the threats made to her. Of course, the children are part of a much larger family now, with a total of some three siblings and two of the other children of the wife. It is significant that B appears to have a close relationship with Ms Gilbert’s younger daughter E.
The father gives evidence as to the employment opportunities he has in Queensland and the importance of him being closer to his present wife’s family. In his second affidavit, the father provides more information in relation to the mother and more information in relation to his views as to her use of illicit drugs. He also provides further evidence in respect of the relocation.
The mother, in her affidavit, disputes some aspects of the violence and raises aspects of situational violence at the time the parties’ relationship broke up. However, she does concede a number of things. Firstly, that she is addicted to methamphetamines and has been abusing drugs for the past three years. She admits the drug use was in respect of her relationship with Mr F, but denies that she has been promiscuous. She concedes some of the matters raised by the father. In her affidavit of 11 June, she provides some information in relation to her treatment with the Tasmanian Drug and Alcohol Service. As I said, she provided evidence from her friend Ms L, and much of that is more of a character and support type evidence.
There was an Issues Assessment, prepared by Ms K, in 2015, in which she recommended a build up time between the children and the mother, and recommended overnight time between B, C and their mother, and observed that the mother is only four months into a rehabilitation program. She considered it was the best interests of the children to remain in the care of their father. The Single Expert report, as I said, was very much focussed on the needs of B.

THE LAW

The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)      the nature of the relationship of the child with:
(i)      each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)    to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)      the capacity of:
(i)      each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)      the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)      any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)     any other fact or circumstance that the court thinks is relevant.

In terms of section 60CC(2)(a) of the Act, there is clearly on the evidence a benefit in the children having a meaningful relationship with the father. The question of the children having a meaningful relationship with the mother is seriously problematic. The mother has huge substance abuse issues and has issues regarding the proper care of the children when she has them staying with her. That has to be weighed up against the other factors, not the least of which is, firstly, the views of B, and, secondly, C’s desire to hear from his mother.
The most significant factor in this case, it seems to me, is those contained in section 60CC(2)(b), which is the need to protect these children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. The evidence is clear that when the mother is unwell or under the influence of drugs, she engages in significant antisocial behaviour. She is not constrained in relation to her behaviour and does not properly care for the children. They are at risk in the unsupervised care of the mother, as there needs to be some form of control in terms of her. They are also at risk of neglect in the care of the mother. I reflect on the evidence of the father to that end.
The mother needs to address those issues and rebuild trust and a relationship with the children. That may take some time with B, given the evidence of Mr D as to her relief, and that is properly the right word, of the change of circumstances since earlier this year. Similarly, the relief of C, although he still retains a yearning to hear from and be connected with his mother. The orders that I have made address that. The father is specifically encouraged to enable C to communicate with his mother and receive cards and letters, so that he understands that he is not being rejected by her, or can come to that view, and his needs will be met in that respect.
I have considered the views expressed by the children, in particular B, which are set out in the affidavits and, particularly, the affidavits and the material provided by the Family Consultant and by Mr D.
As to the nature of the relationship with each of the children’s parents, the father has provided, on the information before me, a sound and stable home and sound and stable and consistent parenting. The mother has been unable to do so.
The extent to which each of the parent has taken or failed to take the opportunity to participate, etcetera, contained in section 60CC(3). The father has engaged with the children. The mother from time to time engages, and from time to time does not engage, depending on the status of her partners, her impact with drugs and her impact with alcohol. The father has fulfilled his obligation to maintain the children. There is some evidence that the mother has not done so, even in her own home. I refer to the evidence regarding the children not being fed or clothed properly.
The changes to which section 60CC(3)(d) refers would have been quite significant has the mother been left in Tasmania and the children moved to South East Queensland. However, the evidence before me shows that the mother is now living in Queensland. So, therefore, the ties to Tasmania have been somewhat reduced.
There will be an effective change, but the children are open to that. It will provide a better life style for the whole of this family on the evidence of the father. The practical difficulty and expense provided by, in section 60CC(3)(e). There will be difficulties and expense. Part of that is ameliorated by the mother living now in Queensland. The other part relates to the practicalities as to how these children, the first in the terms of B, can be persuaded to spend time with the mother. Second, how this can be done in a safe and secure way. That will be a matter for the father in the immediate future.
As to the capacity of the parties referred to in section 60CC(3)(f). The father has a demonstrated capacity, in the context of his marriage to Ms Gilbert and the broader family, to provide for the physical, psychological and emotional needs of the parties. The mother, through her addiction to alcohol, illicit drugs, and other factors, is unable, at times, to meet even the basic needs of the children.
Sections 60CC(g) and (h) seem not to have been relevant.
Sub paragraph 60CC(i) as to the attitude and responsibilities of parenthood. The father has adopted a strong child focused approach, although he is somewhat guarded and careful with the mother. One can understand that, given the circumstances of these children, since the parties separated in 2007 or 2008. The mother has been unable to fully understand or accept the responsibilities of parenthood, given her addiction to drugs and the types of relationships in which she enters.
As to family violence, it is endemic since separation. I have referred to the situational violence earlier, but, since separation, the mother has engaged in violence of an extreme type, including stabbing a former husband and including threats of violence to the father and members of the father’s family, which I have taken into account.
It is important that these children have security in their lives. It is important that they attend at school, and that they are given the opportunities which all children should have. That is more likely to be met in a safe and secure manner in the full-time and primary care of the father.
I will be making the orders suggested with regard to the mother, making telephone calls to C. I have made directions that the details of those contacts be put in place.
As to parental responsibility, the presumption provided by s 61DA does not apply. Even if it did apply, given the evidence before me, parental responsibility in this case would hardly work, given the nature of the communication between the parties, and given the nature of the mother’s behaviour when intoxicated or affected by drugs, or just plain angry with everyone.
Accordingly, this is a case where the father should have sole parental responsibility, subject to those conditions which he himself suggests would be wise to keep the mother informed of significant factors relating to the children.
In terms of residence, even the mother concedes that the children should live with the father. I will make that order. In terms of time I will make no orders at this time, although if B, as she gets older, expresses wishes to spend time with the mother, I will order the father will take such steps to facilitate that to occur in a safe manner.
In terms of C, again, it is open for the father and mother to make arrangements, provided it is safe for him and consistent with his views. The orders provide that the mother can communicate with the children by way of letters, cards, and the sending of gifts, and that the father will keep the mother informed of the children’s mailing address from time to time.
It is important that the children are properly informed of these orders, and that they know that the orders do accommodate the needs of C regarding talking to his mother, and their mother having some communication with them. Accordingly, I will be ordering that the Independent Children's Lawyer speak with the children, and inform them of the nature of these matters. Given all of those factors, I make the orders to which I have referred to earlier.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 November 2015.

Associate:

Date: 25 November 2015

[2015] FamCA 1098

25 November 2015

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