Haley and MacAllum

[2009] FamCA 221

FAMILY COURT OF AUSTRALIA

HALEY & MACALLUM [2009] FamCA 221

FAMILY LAW – CHILDREN – With whom children live – No appearance by father

APPLICANT: Mr Haley

RESPONDENT: Ms MacAllum

FILE NUMBER: CAC 831 of 2008

DATE DELIVERED: 16 February 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 16 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Jane Godstchalk

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That the mother Ms MacAllum have sole parental responsibility for the children K born on … August 1998, N born on … February 2000 and B born … January 2001.

2. That the young people live with their mother.

3. That the young people do not spend time with their father Mr Haley.

4. That the children or the father may send to each other written communications in the form of letters or emails.

5. To facilitate such communication the mother will provide to the father, within a reasonable time of any change in such occurring, a contact address, which may be a post office box number.

6. The mother may read any communication from the father to the children before allowing the children to see the communication.

7. If the mother believes that the communications are not appropriate she may decline to give the communications to the children and shall return them to the father.

8. To facilitate written communications between the children and the father if they should wish to do so, the father will provide and continue to provide to the mother at all reasonable times his current address and any changes in his current address (within reasonable period of any change).

9. The mother will provide to the father at the address last given by him, if it continues to be the father's current address, copies of the children's school reports and any other material relevant to the children's progress that she may receive from the school including but not limited to school photographs.

10. The mother will keep the father informed of any significant medical matters in relation to the children within a reasonable time of such matters arising.

11. The father may send gifts to the mother for the children on their birthdays and for Christmas or at any other reasonable time of the year and the mother will pass on such gifts to the children.

12. I direct that any material that has been produced on subpoena will be returned to the party from which it came unless that party desire the Court to destroy it.

13. That this matter is removed from the pending cases inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 831 of 2008

MR HALEY

Applicant

And

MS MACALLUM

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court arise after an order made by me in January 2008 which, following on from the father’s abrupt departure from the Court, provided a way back for him to possibly undertake some time with his children.  The primary orders I made on 24 January 2008 prescribed that the three children of the applicant mother with the respondent father, K, N and B, being born respectively in August 1998, February 2000 and January 2001, would be on the basis that any previous orders which would have permitted their father to spend time with them would be terminated and only the orders I made on that day would apply.

2. They included orders that the children would live with their mother and would only spend time with their father in accordance with the orders that were made.  This is unusual in that there was no provision as such made which would have permitted some relaxation of that by agreement between the parties.  I also found and determined on that day that the parents should not share equal parental responsibility. I had determined that the presumption that I ought to begin from the position that there should be equal shared parental responsibility was rebutted.

3. I then dealt with in my orders the proposition that required the father, even though he had apparently abandoned the proceedings before the Court, to undertake a certain number of preliminary steps to find his way back to a possibility of his spending more time with the children.  These included making a further application to the Court indicating whether he wished to resume the proceedings, that he should attend upon Ms P at the Family Support Service and that he would indicate what he wanted to do in relation to the time that he would spend with his children.

4. I had at the conclusion of the proceedings on that occasion, after the father had left the Court, had a discussion with the mother which I was happy that the father should have been privy to.  That discussion dealt with the circumstances under which the mother would be content and comfortable with the children spending time with their father.  Subsequently, the matter came back before the Court after essentially a dispute between the parents about whether or not the conditions that I had laid down in my orders had been complied with by the father.  It appears from the discussion that ensued in Court with the father that the process involved his re-attendance at the Family Support Service, however, he apparently had failed to disclose to those who were there some relatively pertinent recent developments. These developments included the way in which he had terminated the Court proceedings here and also his phone message to the mother which was obviously something that would have been available to the children and did indicate, I suggested to him at the time, perhaps a lack of control on his part and a lack of ability to understand the consequences of his actions insofar as they brought upon the children.

5. I will not repeat the terms of the telephone message that was involved suffice it to say that, notwithstanding the difficulties that have arisen in the matter, the father wished the matter to proceed and that he wished to press the orders that he sought which he had filed in accordance with my direction eventually. This meant that he wanted equal shared parental responsibility and that he spent time with the children on a graduated basis but fundamentally, after a relatively short period, on each alternate weekend and for half the school holiday periods.

6. I had reason in preparation of the matter for finalisation to give a direction which required the parties to identify the matters that they were relying upon and, with the concurrence of the father, I identified that the orders that he was presently seeking were the ones to which I have just referred.

7. Neither party in fact complied with my directions in preparation of the matter for a finalisation but the mother failed by only a matter of two days to file a document which sets out the history of the parties and, in particular, draws my attention to matters that would be relevant in accordance with the provisions of the Family Law Act1975 (Cth). I have no difficulty in saying that in the circumstances it is appropriate that she should have leave to rely upon that affidavit notwithstanding that it failed in a minor way to comply with the previous directions.

8. There has been no contact from the father to indicate that he wanted an extension of time so far as I am aware. In addition, he has apparently no longer the assistance of the representation of Mr Lee who represented him in Court on the last time the matter was here.  There is a notice of ceasing to act filed by Mr Lee and I am satisfied that the father was aware that the proceedings would be before the Court today and has chosen, it would appear, in default of there being any other explanation, not to be part of the proceedings.  It is reasonable in those circumstances for me to infer that he has abandoned his application.  It is, however, still a requirement of the Act that I should make an order that is in the best interests of the children and which takes account of the matters I am obliged to take into account under the provisions of Part VII of the Family Law Act1975 (Cth).

9. I am advised by Ms Godtschalk who represents the mother in these proceedings that she continues to seek the orders that are set out in the minute of orders sought which was filed in accordance with my direction by the mother on 2 February 2009.  Those orders seek that she have sole parental responsibility for the three children of her union with the father and that the children would not otherwise spend time with their father, although it does make provision for the children to engage either unilaterally, or on the part of their father, in written communication and for him to have an opportunity to provide gifts for the children at appropriate times if he should choose to do so.  It also commits on her own application that the mother continue to provide the father with her address and with copies of school reports, as well as a commitment on her part to keep him informed of any significant medical matters in relation to the children.

10. It was not part of the application of either of the parties to deal with issues relating to the father’s son, G, who has been living with the mother Ms MacAllum since he was 2 years old.  I am informed by the mother under oath that the father has not in fact had anything to do with G since 2005 and apparently on the last occasion that he did have any communication with G, indicated that he did not wish to speak to him again, nor did he wish to have anything to do with him.  This is a very sad situation. Effectively the commitment undertaken by the mother, without any urging from anyone in particular to look after G, leaves G in a somewhat unsatisfactory situation. Technically it would appear that the mother, although she has been in loco parentis or in the position of a parent in every sense of the word and moreover in the position of being a sole parent in relation to G for some years, does not necessarily have any statutory or legal authority to make decisions about his long-term care, welfare and development.

11. I was unwilling to make any orders which would confer such authority upon the mother in these proceedings as it had not previously been the subject of any application by either the father or the mother, but I do indicate that if the need arose I would be prepared to deal with an application about such matters urgently.  It seems to me that at G’s age and given his father's apparent indifference to his welfare or his future, it is improbable that there would be a requirement for any particular order of this Court to support an order in relation to G, but nevertheless if the need arises I will deal with the matter urgently.  It seems to me that the mother should not be burdened with a requirement of having to sit through a long process of waiting for a matter to come before the Court.  Her generous actions in caring for G in the past require some formal acknowledgement.

12. So far as the three children of the father and the mother are concerned, the matters relating to their best interests have been accurately summarised by Ms Godtschalk in her submissions to me this morning and to the extent that I do not mention them in the comments that follow immediately hereafter I incorporate into my judgment by reference the submissions made in this regard by Ms Godtschalk and moreover agree with those submissions.

13. It is of course part of the objects of Part VII of the Family Law Act1975 (Cth) that I should take account of the objects of the Act and the principles underlying the objects, which set out in some detail the benefits the children have in having a meaningful involvement with both parents in their lives and importantly, and as the other arm of my considerations in every case, the need to protect children physically and psychologically and emotionally from things that may bring upon them what the Act would describe as abuse or neglect or family violence.

14. In connexion with any order I make, there is a prescription under the Act that I must regard the best interests of the children as my paramount consideration, and as Ms Godtschalk has pointed out to me in considering what are in the children's best interests, there are a number of matters that the Act prescribes that I must take into account.  There are two primary considerations which are notable because of the fact that they are singled out of all the matters that the Court must have regard to. 

15. The first of these is that the benefit to the children of having a meaningful relationship with both of the children's parents.  There are two words in that collection that bears attention.  The first is “meaningful relationship” and there is some guidance but no particular definition for those words under the Act.  In this case, I accept the submission of Ms Godtschalk that there is no reasonable possibility that the children are going to have a meaningful relationship with their father in the foreseeable future.  The history of the matter as set out in the affidavit of the mother and in previous affidavits that have been in evidence before this Court (although I do not expressly rely thereupon) and the evidence of the family consultant who prepared an assessment in this matter in October 2008 lead me to conclude that there is virtually no prospect of the children having a meaningful relationship with their father in the near, medium or possibly long term.

16. Second, even if there were a possibility of having a meaningful relationship in the sense that it might be physically possible to have such a relationship, the Act also prescribes that I must consider whether the having of such a relationship would be of “benefit” to the children.  There is no evidence before me and I note the father did not avail himself of the opportunity to give evidence before me as I directed that he might.  There is no evidence before me that there is any benefit to the children that I can determine from the history of the matter and his association with them in his having a relationship with them meaningful or not.  It is rare that I would say those words in proceedings in this Court and it is a matter of great regret to me that it should be so.  However, my regret is but a drop in the ocean by comparison to the regret that ultimately the children will feel about the fact that it should be determined in relation to their father that there is not a benefit to them in their having any sort of relationship with him.  That is a matter to which the father needs to give very serious consideration and one about which he should feel acutely ashamed.

17. In addition, I am obliged to consider as a primary matter the need to protect the children from physical or psychological harm.  Regrettably, it seems to me that each of those is potentially a question of concern in this matter and the only basis upon which I might reasonably comply with my obligation under this primary consideration is to prevent the children from physically spending time with their father.  Again, this is a matter of serious regret to me but one for which the father must take personal responsibility.  It is not the mother’s fault and that issue is a matter covered comfortably by the assessment from Ms D, a Family Consultant of this Court.  It is not the Court's fault in the absence of evidence from the father.  It is not my fault, although I will happily wear the responsibility if it has to fall on someone.  It is the father’s fault for what he has done in the past and what he has threatened to do in effect in the future.  It is about time that the father accepted responsibility for his actions and stopped trying to blame the consequences of those actions on other people.

18. The additional considerations that I am obliged to take into account have been summarised by Ms Godtschalk and I do not propose to deal with them in any detail, however, I note the children do not want to see their father which in itself is a very sad fact and one for which again the father ought properly to accept responsibility.  The relationship that they have with their father, to the extent that it ever existed in any meaningful sense, and I use the word “meaningful” deliberately, has been expunged by the period of inaction and failure on his part reasonably to contact them over the recent period, even if that was difficult for him to do in terms of the orders that were before the Court.

19. I take account of the fact that the father has indicated in his telephone message which I am sure the children did hear and, from the evidence of the mother they did in fact hear and replayed a number of occasions, and from his approach during the time the children had been with him in the past, the father has an inability to encourage any form of close and continuing relationship between the children and the mother. This on his part represents a serious misconception about the nature both of her relationship with the children but, more importantly, their relationship with her and again his relationship with the children and how that might be damaged by his making inappropriate comments in circumstances where he ought to have been, knew he was or if he did not know he was, should have been aware of the fact that he sought to have been on his best behaviour.

20. There are no significant changes in the children's circumstances except perhaps that the litigation between their parents might come to an end which may provide some at least small emotional relief for them as a consequence of the orders that have to be made.  There are no practical difficulties associated with the time that the children spend with their father because he is not spending any time with them.  The mother's capacity to look after the children, to take account of their needs including their emotional and intellectual needs I believe are adequately demonstrated by her care in the past as reflected in her affidavit and by her oral evidence.  I am particularly impressed about her oral evidence in relation to G who, although not part of these proceedings, has been for all practical purposes her child now for some years.  In this regard, her consideration for him, her concerns about his future, her willingness to be part of his future and to support him are reflective of someone who is deeply involved in and concerned to support the children under her care, both emotionally and physically.

21. I reflect on the fact that violence receives two mentions under the considerations I am to take into account.  I am somewhat at a loss to understand the way in which they are expressed differently in both sections, nevertheless in s60CC(2)(b) there is a need to protect the children from being subjected to or exposed to violence.  Whereas in s60CC(3)(j) it says:

    "Any family violence involving the child or a member of the child's family."

22. I am not sure what the appropriate distinction is.  However, these children have been subjected to both of those matters in the past and it seems to me that, at least in practical terms, this is something for which I should take account. 

23. I do not believe that any order I make must necessarily preclude at some point in the future the children having an opportunity to resume a relationship with their father.  It seems to me that it is preferable at this point in accordance with s 60CC(3)(l) that the orders I make would preclude the holding out of false hope for any such resumption of a relationship in the immediate future.  However, no order I make in this Court about children is ever final and I would hope that the father might take advantage of these proceedings to reflect upon his own life and his ability to have appropriate involvement in the lives of the children and take the steps necessary to enable that to happen.  I make no promises about the future nor do I want to hold out any false hopes to the father but the remedy for the present situation lies not with anyone other than the father. It is up to him to take whatever steps he considers to be appropriate to overcome the limitations on his ability to participate as a parent for the children to which I have previously referred.

1. In accordance with s 60CC(4), I have taken account of the failure on the part of the father to take the opportunity to participate in matters relating to the children and I note with regret that he has not even taken the opportunity to send them gifts at appropriate times of the year.  It seems that this would have been the least possible involvement that he might reasonably have with the children.

2. I should indicate so that there is no doubt that I have independently exercised my judgment this day to find that the presumption of equal shared parental responsibility contained in s 61DA is rebutted.  There is no doubt in these circumstances that the matters that have been reflected in the evidence that is before me and, in some respects, the failure of the father to proceed and to take part in these proceedings would lead me to conclude unequivocally that there is no advantage to the children at this point in the parents sharing parental responsibility.  They are unable to communicate.  They do not communicate.  They have separate and diverse interests in relation to the future of their children. They are not in a position geographically or physically or emotionally or psychologically to share the responsibilities relating to the children and it would be totally inappropriate for that situation to apply.  The person who is in the position of making decisions about the children and is able to carry them out and is able to support them in the carrying out of those decisions is the mother and it is proper and appropriate that she should have sole parental responsibility.

3. I am relieved thereby from having to make a determination about whether I should consider whether the father should have either equal time or substantial and significant time with each of the children.  Nevertheless, I indicate for the reasons I have set out above and I do not wish to repeat them that, in my opinion, neither of those circumstances is appropriate and the orders the father seeks are so far out of keeping with his ability to react with and to relate to the children that it only needs to be stated for it to be self-rebutted.

4. Questions as to the reasonable practicability of those things occurring do not therefore arise. In my opinion, the orders that are sought by the mother are appropriate and I make them as final orders.  I formally pronounce them in this way.

ORDERS DELIVERED

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

Associate: 

Date:  26 March 2009