Grover and Rathdowne

[2008] FamCA 1143

FAMILY COURT OF AUSTRALIA

GROVER & RATHDOWNE [2008] FamCA 1143

FAMILY LAW – CHILDREN – Sole parental responsibility

Family Law Act 1975 (Cth)

Brown & Brown (2004) FamCA 1067
Tate & Tate (2000) FLC 93-047

APPLICANT: Ms Grover

RESPONDENT: Mr Rathdowne

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 596 of 2005

DATE DELIVERED: 12 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 November 2008

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Curtain

SOLICITOR FOR THE RESPONDENT: McCormack & Co

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Schetzer

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Pearsons Schetzer & Associates

Orders

1. That the mother have leave to proceed with her application for orders in the absence of the father and on an undefended basis.

2. That all existing parenting orders are discharged.

3. These parenting orders relate to the child … born … July 2004 (“the child”) .

4. That the mother have sole parental responsibility for making decisions concerning the child.

5. That the child live with the mother.

6. That any time to be spent by the father with the child and any communication with her be by arrangement made with the mother.

7. That the Independent Children’s Lawyer be discharged.

8. That all other applications outstanding between the parties are otherwise dismissed and removed from the list of cases awaiting a hearing.

9. That a copy of this order be sent to the father by post to … by my Associate.

10. 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 Grover & Rathdowne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 596 of 2005

MS GROVER

Applicant

And

MR RATHDOWNE

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a parenting matter involving the parties’ daughter who was born in July 2004.  The child is therefore four years of age.  Proceedings began on 17 January 2005 when the mother filed an application seeking orders in the pre‑2006 legislative language, namely that she have sole responsibility for long‑term decisions about the child and that the child reside with her and the father's contact be reserved.  On 14 February 2005 a registrar made orders by consent in those terms.

2. By September 2005 there were clearly problems.  On 14 September 2005 the father filed an application in which he sought a discharge of the earlier orders and two new orders.  It is those particular applications that I am dealing with today.

3. In his application, first, he sought that he and the mother have joint responsibility for decisions about the child, bearing in mind that the earlier orders had provided sole responsibility to her, and secondly, that he have contact during alternate weekends and some extra hours that were set out in his application.

4. On 6 October 2005 the mother filed a response.  She sought that there be no change to the orders that she had had made in February 2005, except that she now wanted the father to undergo a psychiatric assessment.

5. On 13 October 2005 the father consented to an order that he undergo a psychiatric assessment and that the parties enrol at the contact centre for obvious reasons.  In those same orders, an Independent Children's Lawyer was appointed.

6. On 3 January 2006 on behalf of the Independent Children's Lawyer, an affidavit was filed by Dr J who is a psychiatrist.  He gave a detailed analysis of the father's drug abuse and history of criminal offending.  Dr J said that access should be supervised.  He said there were a considerable number of risk factors involved of harm to other people and by that, I concluded that he meant the child as well.  Perhaps sadly, hindsight tells us this, Dr J said that the prognosis for the father was poor.

7. In September 2006, orders were made for contact for two hours a fortnight at the contact centre and in February 2007, new orders were made by consent of the parties under which the father was to see the child in the presence of the mother for some weeks and then various times thereabouts unsupervised.  That would give the impression that by early 2007, things were starting to improve.

8. On 15 July however this year, I made consent orders about the child spending time with the father, that it was again supervised.  I then set the matter down for trial.  I ordered an update of the psychiatrist's report and for the father to file an affidavit about his proposed care of the child and other historical matters.  I also ordered the father to file material that I had anticipated he would have from not only himself but from his mother and from his girlfriend.  That was to be done by 22 September this year.

9. I also ordered a review of the progress for final hearing to take place and I set that down for 17 October 2008.  On that day, the father failed to appear.  I was informed on that date and the court file shows the father had filed no further material as I had ordered.  He had done nothing about the psychiatrist.  I vacated the trial date.

10. The practitioner for the mother said that the father had told her that he was not going to be involved further in the proceedings.

11. In the mother's affidavit filed 6 October 2008, she refers to the fact that her parents continue to supervise the father's time with the child and in fact I have been told this morning by the mother that that has been continuing up until about six weeks ago, where the father has just disappeared from the picture.  Sadly, the perception that I have which is confirmed by the mother is that the relationship between the father and the child is one of two children playing, rather than that of father and daughter.

12. It seems that this is the sort of regime that the father anticipates.  This is a case that has been in the court system a long time and for the child’s sake, it needs a conclusion.  That is the position this morning adopted by the Independent Children's Lawyer.

13. On 17 October 2008 I ordered that the matter be listed before me on today's date and that the mother serve the father with a precise list of orders that she was proposing to seek.  I made clear in the orders that I made that if the father failed to attend, the mother could seek to continue to run the case on an undefended basis and that is now what she seeks to do.

14. I am satisfied about service of the orders of 17 October 2008 and also specifically that the father is aware of the orders that the mother is intending to seek today.

15. I think it goes without saying that it is a serious step to preclude someone from participating in any legal proceedings, but Family Law Rule 11.02(2)(c) provides that if a party does not comply with the Rules of the Court or procedural orders, the court may, amongst other things, determine the case as if it was undefended.  That has been the view of a number of authorities in this case including Tate (2000) FLC 93-047 and Brown (2004) FamCA 1067. I find in this case that the father has failed and continues to fail to comply with court orders and that warrants the court exercising the powers set out in Rule 11.02. That gives rise to the question of whether the discretion should be exercised. In this case, having regard to the history of this case, I see no reason for the case not to be finalised today.

16. The mother in her application sought that the original orders be continued.  I think, as has been discussed this morning, it is more appropriate that the orders now be condensed into one document and that they reflect the current terminology under the Family Law Act 1975 (Cth) (“the Act”).  The mother is seeking orders that the previous orders be discharged, that the child live with her and that she have shared parental responsibility.  She also seeks an order that the father spend time with and communicate with the child for such periods as may be agreed between the father, maternal grandparents and the mother at the home of the maternal grandparents, supervised by the maternal grandparents or the mother's nominee, and that otherwise procedural orders be made to remove the case from the list.

17. I do not think I need to go as far as the mother has gone in respect of the father's position and I will make an order on a less restrictive nature, giving her effectively the control over how the future relationship is to be conducted.

18. The mother has relied upon her affidavit she filed on 6 October 2008.  That evidence is not challenged, not only by the father but also not by the Independent Children's Lawyer and I have no reason to doubt what the mother says.

19. The mother is 43 years of age and the father 39 years of age.  The relationship commenced in January 2002.  The parties separated in May 2002, although the relationship continued whilst the parties were still apart.  The child was conceived during that period of time and was born in July 2004.

20. The mother's evidence is that the father has a history of almost 20 years of drug abuse, including amphetamines and marijuana.  She has said that he had commenced but not completed rehabilitation courses.  The evidence of Dr J supports that.  The mother has said that the father has contemplated and attempted suicide and had been an involuntary psychiatric institutional patient.  He has a history of antisocial behaviour.  That may in part be attributable to his drug habit.

21. The mother gave evidence about the disjointed and unreliable endeavours that she has undertaken of establishing a set contact routine between he and the child.  That was no more confirmed by the evidence that I heard this morning.  When affected by drugs, the father appears at various times to be violent and dangerous.  Despite all of that and to her eternal credit, the mother has assisted the father and encouraged a supervised relationship between the father and the child.

22. On 13 November 2007 the Frankston Magistrates Court made an intervention order against the father.  Oddly enough, he appealed against that order but withdrew the appeal.

23. On a very positive note, the child lives in a spacious five-bedroom home in the peninsula area.  The home is subject to a mortgage but it is convenient to both the mother's parents' home and the local school.  The mother's evidence is that she has a strong circle of friends of mothers with a number of children, all of whom assist one another when needed.  The child currently attends two days per week at a kindergarten and will commence in that same schooling area when she is able to do so.

24. Part VII of the Act provides the structure for the determination of any parenting dispute. Section 60B sets out the objects of the act which includes things such as ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent, consistent with the best interests of the child. Section 60B also provides that it is important for the court to contemplate the protection of children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

25. It is also an important object that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

26. Ultimately, however, when deciding a parenting case, the court must regard the best interests of the child as the paramount but not the only consideration.  Section 60CC(1) provides that in determining what is in the children's best interests, the court must consider the matters set out in subsections (2) and (3).  Subsection (2) sets out the primary considerations which are the benefit of the child having a meaningful relationship with both parents and, similar to the objects, the protection of the child from physical or psychological harm.

27. In this case, the child is primarily attached to her mother and her father's role has been modest, if not at times negative.  Section 60CC(2)(b) requires me to look at the protection of then child from physical and psychological harm.  In this case, that is problematic.  It is a risk to the child that needs to be addressed.  Here, the mother's evidence is corroborated by Dr J and I have serious concerns about the father's capacity to protect the child, certainly in circumstances if the contact between she and he was unsupervised.

28. The child is too young to understand the problems confronting her parents and too young to have any views which she might want or need to have considered.  She has a strong emotional and physical attachment to her mother, ably supported by her maternal grandparents and quite frankly I am not at all clear on what sort of relationship the father has or wants to have with the child.  I have already commented that he seems to be childlike and therefore plays with the child, rather than fulfilling the roles that s 60B contemplated.

29. I am satisfied the mother has endeavoured to support some form of relationship with the father and she has facilitated and encouraged the relationship between the child and he.

30. As I have no application by the father, there is no need for me to contemplate the likely effect of any change in the child’s circumstances, particularly in relation to the likely effect on her separation from her mother.

31. Section 60CC requires I consider the capacity of each parent to provide for the needs of a child, including emotional and intellectual needs.  I have been impressed with what the mother has done to provide for the needs of the child.  I have a serious concern about what, if anything, the husband has to offer.  As is well known with drug-affected persons, judgment is often impaired.  The evidence of Dr J is strong and it is sad.

32. A significant problem, however, is the father's attitude to the child and the responsibilities of parenthood he demonstrates.  The mother's attitude, in my view, is completely appropriate.

33. In this case, there has been a family violence order.  I am obliged to take that into account anyway but it simply corroborates the problems referred to by both the mother and Dr J.  The need for such an order highlights the paucity of parenting insight that the father has.

34. Section 60CC also requires a court to consider whether it would be preferable to make an order that would be least likely to lead to further proceedings in relation to the children.  Having regard to the expert evidence in this case, there is not much point in doing anything other than making final orders.  If the father cannot reach agreement with the mother, he will need to establish that he has something to offer the child.  He will face substantial hurdles in any future application.

35. Section 60CC(4) requires me to consider how each party has fulfilled or failed to fulfil their responsibilities in relation to not only spending time but also facilitating the time with the other parent.  I think I have adequately covered those matters in what I have already said.

36. In this case, the mother sought sole parental responsibility.  The Independent Children's Lawyer supports that.  Section 61DA sets out that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  The flow-on effect of that order is set out in Division 6 of Part VII.  I have little doubt in this case that on all of the matters that I have considered, it would not be in the best interests of the child to spend equal time with the parents.  It would be positively harmful for her to do so.  On that basis, the presumption of equal shared parental responsibility must be rebutted.

37. In my view, it is appropriate that I make orders today and those that I now pronounce I find are in her best interests. 

38. I have already indicated that in respect of the precise wording of the orders that the father has been advised of, I propose to make some slight changes, only because I do not think that it is necessary to go as far as the mother has gone.  It is not the function of the court to constantly interfere in the daily activities of parenting and having regard to the fact that I have already found that the mother has taken a very responsible attitude, I see no reason why I ought not give her the sole responsibility, not only for decisions but also for what time the father spends with the child.

I certify that the preceding Thirty Eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 November 2008