Gumford and Gumford

[2010] FamCA 364

FAMILY COURT OF AUSTRALIA

GUMFORD & GUMFORD [2010] FamCA 364

FAMILY LAW – CHILDREN – With whom a child lives – Parenting orders in default

Family Law Act 1975 (Cth)

APPLICANT: Ms Gumford

RESPONDENT: Mr Gumford

INDEPENDENT CHILDREN’S LAWYER: Jenny Boulton

FILE NUMBER: BRC 2037 of 2008

DATE DELIVERED: 4 May 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 4 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Jenny Boulton Solicitor

Orders

IT IS ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. 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.

3. The Independent Children's Lawyer be discharged.

4. 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 FURTHER ORDERED THAT

Where the child shall live & Parental Responsibility

1. The child, D born … May 1997, live with the Mother.

2. The Mother have sole parental responsibility for the major long term issues of the child including but not limited to education, religious and cultural upbringing, health, his name and any changes to the child’s living arrangement that make it significantly more difficult for the child to spend time with either of the parties.

   Time with the Father

3. Until the child’s sixteenth birthday in May 2013 or otherwise agreed in writing:

   (a)That unless otherwise agreed between the parents in writing, the child spend time with his Father on a supervised basis from 1.00pm to 4.00pm each alternate Sunday. 

   (b)The supervisor is to be a person agreed between the parties, but in the first instance, if she is available and is agreeable, it will be the child’s paternal Aunt, E Gumford. 

   (c)If the child’s paternal Aunt, E Gumford, is unwilling or unable to supervise the father’s time then, if she is available and is agreeable, the child’s paternal Grandmother, V Gumford, is to be the supervisor.

   (d)In the event that either of the above named supervisors are unwilling or unable to supervise the father’s time, then the following orders shall apply that each party shall:

   (i)contact the … Children’s Contact Centres (“the Contact Centre”), within 7 days of being notified that the above-named supervisors are unwilling or unable to supervise the father’s time, and arrange an appointment for assessment for suitability for supervised time;

   (ii)attend the assessment;

   (iii)comply with any appointments made by the Contact Centre for supervised time;

   (iv)comply with all reasonable rules of the Contact Centre; and

   (v)comply with all reasonable requests or directions of the staff of the Contact Centre.

   (e)If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with the child each second weekend for up to three hours at times nominated by the Contact Centre and such contact is to occur at the Children’s Contact Centre.

   (f)The mother shall deliver the child to, and collect the child from, the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

   (g)In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 7(e) then time will be spent at the times which are offered by the Contact Centre.

   (h)Time under Order 7(e) is to be supervised by the Contact Centre and the father shall pay all the fees charged by the Contact Centre for each occasion of supervision including any intake fees in respect to both parties.

   (i)The father shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when their time with the child is to end.

   (j)The period of time to be spent provided for in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, time will be spent at times when the services can be provided by the Contact Centre.

   Changeovers & Transportation

   (k)In the event that the supervisor is unable or unwilling to collect the child from the Mother at the start of the Father’s time and to transport the child to the Paternal Grandparent’s home and return the child to the Mother’s home in the end of such time, then the Mother will transport the child to and from the Paternal Grandparent’s home or the Contact Centre. 

   Schooling & Medical

4. Unless otherwise agreed between the parties, the parties shall ensure that the child attends school on each school day unless a medical certificate is provided to the school explaining his absence.

5. That each party is hereby authorised to liaise directly with any of the child’s treating doctors or other medical practitioners to obtain any necessary information about any of the child’s medical history and treatment.

6. That each party is hereby authorised to liaise directly with any of the child’s schools to obtain any necessary information about the child’s progress including but not limited to any application forms for school photographs, copies of school reports, and any information provided by the school to the carers of the child.

7. That the mother do all acts and things necessary to ensure the child’s attendance at appointments with Family Youth Support Services for as long as therapeutically indicated.

8. That each party is hereby authorised to liaise directly with Family Youth Support Services to obtain any necessary information about the child’s progress and treatment/counselling.

   Communication

9. As soon as practical, each party shall notify the other of any serious illness or medical or like emergency involving the child.

10. Discussions between the parties in relation to any agreed amendment to the time the child spends with each party, or travel arrangements shall occur directly between the Mother and the Father and not by way of the child.

11. That each party shall keep the other informed at all times of their residential address and contact telephone number and shall advise the other parent in writing by pre-paid post at least 21 days prior to any proposed alteration of address.

12. That the parties are hereby restrained from denigrating the other in the presence of within the hearing of any of the child; or allowing any other person to do so.

    Specific Issues

13. Neither party shall expose the child to illegal drug use or alcohol to excess. 

14. The Father shall not consume any alcohol or be affected by alcohol while the child is spending time with him.

15. Unless expressly agreed between the parties, neither party shall leave the child in the care of any person other than a responsible adult. 

    Travel Outside Australia

16. That if the mother proposes to take the child for a holiday outside of Australia, she must provide to the father no less than two (2) months in advance a draft itinerary of the proposed travel, and provide no less than one (1) month in advance a detailed itinerary of the proposed travel including details of the departure and return dates, flight numbers, accommodation details and copies of the relevant airplane tickets.  Upon receiving this information, the father is not to unreasonably withhold his consent to sign the passport application or release the passport. 

17. That within 7 days of the date of these orders, the father do all acts and things necessary to enable the mother to obtain an Australian Passport for the child.

18. That if either party shall refuse or neglect to sign any document or do any such thing as may be reasonably required to give effect to these Orders that the other party shall forthwith apply to the Court and the Registrar of the Family Court of Australia at Brisbane is appointed to sign such document and to do all acts and things necessary to give validity and operation to the document or thing.    

AND IT IS NOTED:

(a)Prior to discharge of the Independent Children’s Lawyer, the Independent Children’s Lawyer shall write to each of the child’s known treating doctors, school and Family Youth Support Service enclosing a copy of the sealed orders and pointing out the relevant provisions of the Orders at paragraphs 9, 10, 11 and 12.

IT IS NOTED that publication of this judgment under the pseudonym Gumford & Gumford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 2037 of 2008

MS GUMFORD

Applicant Mother

And

MR GUMFORD

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. On 18 December 2009, I made orders designed to facilitate the final hearing of this matter commencing 9.30 am on 4 May 2010.  At that time, the father was represented by solicitors and had, it seems, been represented by those solicitors at all times leading up to that hearing and thereafter. 

2. On 8 April 2010, a Notice of Ceasing to Act was filed by the solicitors acting on behalf of the father.  The record reflects that no material has been filed by the father since February 2009 -  that is, over 12 months ago.  Exhibit ICL1 is a letter forwarded from the mother’s solicitors to the father, forwarded by registered post, and enclosing an Outline of Case document and emphasising that the matter was due to be heard commencing at 9.30 am today.

3. The father failed to appear at 9.30.  I determined to wait until 10 o’clock lest the father was confused about the commencement time of the final hearing.  Further, I determined to wait until approximately 20 past 10 so as to take account of the possibility that the father may have been late for a 10 o’clock start. 

4. At approximately 10.25 am, when the final hearing convened, the father failed to attend.  His name was called three times outside of the court, and there was no response.  From the bar table, I am informed (as to which see Division 12A of the act) that a communication had occurred with the father yesterday in which the father had indicated that his participation in the final hearing was “a waste of time”. 

5. In those circumstances, the mother seeks parenting orders by default and is supported in that respect by the independent children’s lawyer. 

6. Final orders by default, in respect of children, represent a serious step, because they deny to one party the opportunity to present their case for such parenting orders as they contend are in the best interests of the child the subject of the proceedings.  That becomes all the more important when account is taken of the fact that this court has an independent obligation to make orders in the best interests of the subject child, and that obligation includes formulating orders separate from, or different to, orders which are sought by the parents if the court considers alternative orders better meet the best interests of the child.

7. However, Division 12A of the Act now imposes upon the court a series of mandatory obligations in and about the hearing of parenting proceedings in this court.  Among the duties which are mandatorily cast upon the court is a duty to decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily. 

8. Importantly, those duties are underlined by a series of principles, also mandatory, which must be applied in the hearing of applications for parenting orders.  Those principles include an obligation to:

   ...consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

9. The court is instructed to actively manage and control the proceedings to that end, and a further principle is that the proceedings are to be:

   ...conducted without undue delay and with as little formality and legal technicality and form as possible. 

10. The evidence before the court in these proceedings presents a sad history with respect to D, who is currently almost 13 years of age.  There is no doubt in my mind that proceedings in this court with respect to him ought be brought to an end as quickly as possible in his best interests.  The troubled behaviour of this still young boy suggests plainly that stability and certainty about his future arrangements are clearly in his best interests.

11. It is fundamental that he should know and his caregivers should know, and, indeed, those charged with caring for him otherwise - for example, the mooted involvement of the Family Youth Support Service - should also know how his co-parenting circumstances have been determined by a court, so that the future arrangements for him can be mapped with certainty. 

12. It is then, in my view, appropriate to deal with the orders sought by the mother in the absence of the father, and I propose to do so. 

13. Minutes of order were handed up by the mother which were broadly agreed to by the independent children’s lawyer.  Those orders propose that D live with his mother and that she have sole parental responsibility for the major long term issues of the child:

    ...including but not limited to education, religious and cultural upbringing, health, his name, and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either of the parties. 

14. Implicit in that order, then, is a finding by this court that the presumption of equal shared parental responsibility has been, or ought be, rebutted by reference to the evidence before the court.  Also, the evidence before the court includes evidence of family violence as that expression is defined in the Family Law Act.

15. Moreover, and as troubling, the evidence also clearly reveals that D has a number of very significant behavioural difficulties that have been “diagnosed” in differing ways by differing people.  Suffice to say that those behavioural difficulties have seen him excluded from one local school in the past. 

16. It is submitted that the evidence reveals that, in recent times, there has been a significant improvement in D’s behaviour, and that has resulted from a more consistent parenting regime implemented by the mother and a lack of the, as it were, “to-ing and fro-ing” between the care of the parents, primarily instigated by D himself, but in circumstances where the parents are unable or unwilling to communicate in a manner that would facilitate uniform rules with respect to his behaviours.

17. Plainly enough, the “to-ing and fro-ing” that I have referred to, and the lack of support afforded by one parent to the other with respect to D’s care, is not in his best interests. 

18. I have read carefully the reports of the experts in this matter, including the reporting psychiatrist, Dr W.  It seems to me appropriate, and in D’s best interests, that the presumption of equal shared parental responsibility be rebutted, not only by reason of the allegations of family violence contained in the material, but because the degree of consultation, co-operation, and discussion which an order for shared parental responsibility clearly requires (see section 65DAC of the Act) is not present between these parents and, on any view of the evidence, is extremely unlikely to occur in the future.

19. Otherwise, the orders provide that D live with his mother, and I have no difficulty, on the evidence before me, in making an order in those terms in D’s best interests. 

20. The orders also provide for there to be supervised time between D and his father, with the primary focus of that supervision being the paternal aunt, Ms E Gumford. 

21. The evidence reveals that D has a good relationship with his paternal aunt, and, as importantly in the circumstances of this case, so does the mother.  It seems to me, on the evidence, that the involvement of the paternal aunt has been a positive in terms of facilitating a relationship between D and his father whilst at the same time providing sufficient stability for D while that occurs.

22. The minutes as drafted, contained no “sunset clause” with respect to that supervision.  I raised with each of the counsel for the mother and the independent children’s lawyer decisions of the Full Court that require courts to give careful consideration to supervision contained in final orders which are “open ended”. 

23. The law is that the broad discretion conferred by the Act on trial judges ought not be fettered with respect to supervision just as much as it ought not be fettered in any other way.  However, long term supervision brings with it significant ramifications.  The proposed order for long term supervision in this case also occurs against a background where, as I have already indicated, D has in the past “voted with his feet”.

24. After discussion, counsel for each of the parties contend that the orders should include a curtailment of the supervision from May 2013.  On that date D will turn 16. There is no “magic” about the date or that age. It is chosen (arbitrarily) as being a date upon which D will have such a degree of maturity that, in effect, he will make his own decisions with respect to the time that he spends with each of his parents and whether any time with his father ought be supervised. 

25. So, too, a child of that age, with an assumed degree of maturity, will be able to make decisions about the nature of his father’s behaviour, including for example, whether that behaviour is affected by misuse of alcohol, as has been alleged against him in the material filed by the mother and, significantly, referred to by D in interviews conducted by experts in this case, including Dr W.

26. In fixing 16 as the, admittedly arbitrary, age at which supervision will no longer apply, I have also taken account of the fact that D currently suffers from a significant number of behavioural issues which, as I have said, have been assessed or “diagnosed” in different ways.  It seems to me that 16 strikes a balance between the required degree of maturity which is needed if supervision is to be removed when compared to the restrictions inherent in the nature of supervised time. 

27. Accordingly, with that amendment, and with an additional amendment discussed with counsel for each of the parties permitting the father to receive information from the Family Youth Support Service at which service the orders contemplate D’s future attendance, I make orders in accordance with the amended minutes submitted by the applicant mother and supported by the independent children’s lawyer. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  13 May 2010