HALIFAX & MEREDITH
[2012] FMCAfam 1457
•17 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALIFAX & MEREDITH | [2012] FMCAfam 1457 |
| FAMILY LAW – Children – parenting – parenting orders – parental responsibility – best interests of the child – drug issues – family violence – family violence order in force – wishes of the child. PRACTICE & PROCEDURE – Where applicant did not attend Court. |
| Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61DA Family Law Regulations 1984 (Cth), reg.12BB, Sch. 8 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.79, 86 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s.16 Federal Magistrates Court Rules 2001, rr.13.03C, 15.09, 16.05 |
| Applicant: | MR HALIFAX |
| Respondent: | MS MEREDITH |
| File Number: | SYC 323 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | No Appearance |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondent: | Mr Dalyell |
| Solicitors for the Respondent: | MMD Law |
| Independent Children’s Lawyer: | Ms Weber |
| Solicitors for the Independent Children’s Lawyer Respondent: | Legal Aid NSW |
ORDERS
The Application filed by the father on 20 January 2011 is dismissed.
The child [X] born [in] 2003 is to live with the Respondent Mother.
The Mother is to have sole parental responsibility for the child [X].
The child [X] is not to be required to spend time or communicate with the Applicant Father unless the child expressly wishes to do so.
The Mother must continue to preserve any letters, cards or gifts sent by the Father to [X] until the child attains the age of 18 years.
The Independent Children’s Lawyer is discharged.
No order for costs.
The Independent Children’s Lawyer must forward a sealed copy of these Orders to the Applicant by ordinary pre-paid post within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Halifax & Meredith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 323 of 2011
| MR HALIFAX |
Applicant
And
| MS MEREDITH |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy called [X] for parenting Orders. He filed an Application on 20th January 2011 for orders that:
a)the parties should have shared parental responsibility for [X];
b)[X] should live with the mother; and
c)he should spend time with the child, initially once a month, at the home of his father, the child’s paternal grandfather, to coincide with the times that he spent with his other children, [Y] and [Z].
The Mother filed a Response on 16th June 2011, opposing those Orders and seeking that the Application be dismissed. She sought orders that:
a)the child should live with her;
b)she should have sole parental responsibility for him;
c)the child should spend time with the Father and the paternal grandfather “as and when the Mother and father, and the Mother and paternal grandfather, shall from time to time agree in writing and failing agreement as hereafter ordered”.
Background
The Father was born [in] 1981. The Mother was born [in] 1977.
The parties were in a relationship between about 2001 and 2004. There is one child of the relationship, [X], who was born [in] 2003. [X] is now nine years and six months old.
[X] lives with his mother, the Respondent.
The Father has two children from two other relationships, [Y], who was born [in] 1999, and [Z], who was born [in] 2008.
On 22nd May 2007 the child [Y] was the subject of proceedings in the Children’s Court of New South Wales at Parramatta. On that date the Court made a Care Order under the provisions of subparagraph 79(1)(a)(iii) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), placing the child under the parental responsibility of her paternal grandparents, Mr H and Ms H, until she attains the age of 18 years.
The Children’s Court also made an order under s.86 of the Children and Young Persons (Care and Protection) Act, being:
…a minimum contact order between [Y] and her father Mr Halifax once per month. Such contact shall be facilitated and supervised by Mr H and/or Ms H or another person approved by Ms H and Mr H.
The Children’s Court also ordered that the child [Y] was to have contact with her half-sibling [X] on a minimum of twelve occasions each year, this contact to be facilitated by the paternal grandparents.
The Applicant also deposed that his other child, [Z], had been removed by the Department of Community Services (as it then was) and placed with the paternal grandfather[1]. No copy of any order from the Children’s Court has been made available to this effect.
[1] Affidavit of Mr Halifax 18.1.2011 at paragraph [5]
There were proceedings between the Applicant and the Respondent under the Family Law Act in respect of the subject child [X]. On 27th March 2006 the Local Court Family Matters made interim Orders by consent providing that the child [X] should reside with the mother and the father would have contact with the child from 9:00am to 12 noon on Saturdays.
The Father deposed that he had “difficulties” in his life after 2005. He admitted to punching the Mother which led to an Apprehended Violence Order and a conviction for assault. He was placed on a good behaviour bond with a reporting condition, which he breached. This led to a suspended sentence, followed by periodic detention.[2]
[2] Ibid at [9]
The Father deposed that he started taking drugs and developed a serious drug problem. He failed to attend periodic detention and was sentenced to full-time imprisonment. He was incarcerated from January to May 2007. He was released on condition that he would continue to attend periodic detention, but again failed to attend. He handed himself in to police on 19th August 2009 and was again incarcerated, this time until 12th March 2010.[3]
[3] Ibid at [12]
The Applicant claimed not to have taken drugs after 17th January 2007.
On 9th May 2011 the Court directed the parties to attend a Child Dispute Conference with a Family Consultant. They attended the Child Dispute Conference on 10th June 2011. No agreement was reached about the child spending time with the father. The Family Consultant recommended that an Independent Children’s Lawyer should be appointed.
On 21st July 2011 the parties entered into interim consent Orders providing that:
a)the Father was permitted to send cards, letters and gifts to the child;
b)the Mother was required to hand the cards, letters and gifts to the child unopened and within four hours of receipt;
c)the parties were to contact Sydney Children’s Contact Service to commence procedures and do all things necessary to be placed on the contact service’s waiting list;
d)the Father was to submit himself to urine analysis to detect the presence of illicit drugs at the direction of the Independent Children’s Lawyer;
e)the parties were restrained from denigrating each other;
f)the parties were restrained from discussing the proceedings with the child;
g)the contact in Order 2 made by the Local Court (Family Matters) at [omitted] was suspended; and
h)the Mother was to provide to the Father copies of recent photographs of the child and a recent school report.
On 21st November 2011 the parties entered into further Interim Consent Orders, providing:
a)the Mother was to obtain a referral for the child to attend on a counsellor or psychologist;
b)the Father was to attend upon a drug, alcohol and psychological expert, Mr D, for the preparation of an expert report under Rule 15.09; and
c)the parties and the child were to attend a child inclusive child dispute conference.
The Father attended up Mr D, Clinical Psychologist, for an assessment on 9th January 2012. His Expert Report was released to the parties on 10th February 2012. In his Report, Mr D identified a poor prognosis for the Father in abstention from substance abuse whilst he remained homeless, but gave a further prognosis of:
Should suitable housing occur, and abstinence continue, Mr Halifax’s prognosis for change remains fair, given some likelihood of reinstatement of use, especially once legal proceedings and Orders finalised.[4]
[4] Expert Report, page 18 at 114
Mr D considered that the Father was at a high risk of lapsing into substance abuse and recommended that the Father undertake an individual or group program that focused on lapse prevention skills. Nevertheless, he recommended:
That, should the Court permit increased access/visitation/custody
there should be further monitoring of the Father’s substance use[5].
[5] Ibid, page 20 at 144
On 26th March 2012 the Court ordered that the parties attend upon a Family Consultant for the purpose of preparation of a Family Report.
The Father attended the child inclusive child dispute conference scheduled for 14th May 2012, but the Mother and the child did not. In the Family Consultant Memorandum to Court, the Family Consultant noted that the Father reported that:
·He was willing to have his time with [X] supervised for 6 to 12 months.
·He was unable to meet the costs of chain of custody urine tests.
·He attends a Family Centre where he has supervised contact with his daughter [Y], who is now in foster care having been removed from the care of his father.
·He has contact with his son [Z], who continues to live with the paternal grandfather.
·The Mother had applied for an Apprehended Violence Order against him, to which he agreed after [X]’s name was removed as a protected person.
·His brother has applied for an Apprehended Violence Order against him, which he is contesting.
The Family Consultant noted as issues impeding resolution, the Father’s strong wish to re-establish his relationship with [X] and the Mother’s objection to the Father’s wish.
The Father, Mother and the child all attended upon the Family Consultant for the child inclusive child dispute conference on 9th July 2012. In her Memorandum to the Court, the Family Consultant reported that the Mother said that the child [X] expressed resistance to the idea of spending time with the Father or from listening to or reading his father’s letters.
The Mother also reported that the child had become resistant to the idea of spending time with his paternal grandfather and his half-brother, [Z]. The child complained that [Z] hit him but the grandfather did not setting limits on [Z]’s behaviour.
The Father told the Family Consultant that:
…in light of [X]’s expressed views, he would not continue his pursuit to spend time with him (although he would like a review in January or February of 2013 to see if [X] might have changed his mind).[6]
[6] Family Consultant Memorandum to Court 9 July 2012
The Family Consultant reported:
· [X] expressed anxiety about his father coming back into his life and a fear that his life might be “messed up” as a consequence. He said that he does not want to see his father.
· [X] also expressed fear that, if he sees his father, he might become like him (that is, have the same problems as his father). He also0 fears the same fate as his sibling, [Y] (that is, becoming uncontrollable and ending up in foster care).
· [X] expressed anger with his father for having hit his mother. He said that he recalled being behind his mother when Mr Halifax hit her and his mother telling him ([X]) to go to his room.[7]
[7] Family Consultant Memorandum to Court 9 July 2012 page 2
The Application was listed for final hearing on 23rd and 24th October 2012, however, those dates were vacated because the Family Report would not be available in time. The Application was adjourned to Thursday 22nd November and Friday 23rd November 2012 for final hearing.
The Father’s then lawyers filed a Notice of Intention to Withdraw as Lawyer on 20th August 2012 and a Notice of Withdrawal as Lawyer on 3 September.
The Application was mentioned before the Court on 3rd September. The Mother’s solicitor, Mr Dalyell, and the Independent Children’s Lawyer, Ms Tin, both attended Court. The hearing dates of 22nd and 23rd November were vacated.
The Family Report was released to the parties on 30th November 2012. As the Father was no longer represented, a copy of the Family Report was posted to his last-known address, but it was returned unclaimed.
The Family Consultant noted that the Father did not attend the appointment for the interview for the Family Report.
The Mother attended the interview, along with the child. The child’s maternal grandparents and maternal uncle also attended.
The Family Consultant described the Mother as stressed by the legal proceedings and distressed by their impact on [X]. She told the Family Consultant that she did not trust the Father and was critical of his failure to undergo drug testing. She reported that the child was still resistant to spending time with either his paternal grandfather or his half-brother [Z].
The child also expressed anxiety about spending time with his father.
On 10th December 2012 the matter was mentioned before the Court. The Father did not attend court. The Application was listed for an undefended hearing at 12 noon on 17th December 2012.
The Applicant Father did not attend the hearing, nor did anyone attend on his behalf. There was no message from the Father advising that he was unable to attend Court or delayed or hindered from attending, due to illness, injury or some unforeseen circumstance.
The Mother’s solicitor and the Independent Children’s Lawyer asked the Court to proceed with the hearing generally, under the provisions of Rule 13.03C.
The Mother relied on the Family Report and sought Orders that:
a)the Father’s Application be dismissed;
b)the child [X] should live with the Mother;
c)the Mother should have sole parental responsibility for the child;
d)the child should not be required to spend time or communicate with the Father unless he wishes to do so; and
e)that the Mother should preserve any letters, cards or gifts sent by the father to [X] until he turns 18.
The Independent Children’s Lawyer supported the Mother’s application. However, she did not support the recommendation in the Family Report that the Mother should provide the Father with updated information about the child’s progress at school and with copies of school photographs.
The Law to be Applied
Section 60CA of the Family Law Act 1975 requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and (3) of the Act.
The primary considerations are set out in subsection 60CC(2). They are:
a)The benefit to the child of having a meaningful relationship with both 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.
Subsection 60CC(2A) requires that greater weight must be given to the consideration in paragraph (2)(b), the need to protect the child from physical or psychological harm.
The term “family violence” is defined by subsection 4AB(1) of the Act. Family violence is also a consideration in paragraph 60CC(3)(j), and, if there are reasonable grounds to believe that a parent of the child has engaged in family violence, then the presumption 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 additional considerations for the Court in determining the best interests of the child are set out in subsection 60CC(3). They include such things as:
a)the wishes of the child and the weight that should be given to those wishes;
b)the nature of the relationship of the child with:
i)each parent; and
ii)other persons, including grandparents;
c)the child’s maturity, sex and lifestyle;
d)whether the child is Aboriginal or a Torres Strait Islander;
e)family violence issues;
f)whether there is or has been a family violence order in force; and
g)other relevant matters.
The term “family violence order” is defined by s.4 of the Act:
family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
An Apprehended Domestic Violence Order made by the Local Court of New South Wales under the provisions of s.16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is a family violence order under s.4 of the Family Law Act (see Schedule 8 of the Family Law Regulations 1984 (Cth), reg.12BB).
If the Court makes an order applying the presumption in s.61DA(1) that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child, the Court must then consider the matters in s.65DAA of the Act, which concern the child spending equal time or substantial and significant time with each parent in certain circumstances.
All of those matters have been considered.
Conclusions
The best interests of the child are the paramount consideration.
The evidence is that the mother has been the child’s primary caregiver since he was born, and she remains his primary caregiver. It is clearly of benefit to the child for him to continue to have a meaningful relationship with her.
Regrettably, the same cannot be said for the child’s relationship with the Father, which is virtually non-existent. The child has not spent time with his father since 2006, and his memories of his father are not positive. The Father has had little to do with his son, due to his substance abuse issues and his periods of incarceration.
Of greater weight is the need to protect the child from physical or psychological harm from being exposed to family violence. The child has a memory, reported by the family consultant, of being behind his mother when his father has hit her. Subsection 4AB(4) gives examples of situations that may constitute a child being exposed to family violence, including, at paragraph (b):
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family;
Family violence is an additional consideration in s.60CC(3) at paragraph (j).
There is evidence from the mother and the Family Consultant that [X] has anxiety about his father and no desire to come into contact with him. [X] is a boy of nine years and six months of age, of Aboriginal background on his father’s side (see s.60CC(3)(g)), and is of an age of level of maturity that would allow the Court to give some weight to his views (s.60CC(3)(a)).
The child has a positive relationship with his mother but virtually no relationship with his father.
From the Family Report, [X] appears to have a loving relationship with his maternal grandparents, Mr and Ms M, and a close relationship with his maternal uncle, [omitted].[8]
[8] Family Report paragraph 18
The child’s relationship with his paternal grandfather has become strained, which appears from the Family Report to have arisen from circumstances at his grandfather’s house, “including the state of the toilet”, and the fact that his half-brother [Z] hits him.[9] Clearly, his relationship with [Z] is poor, but he volunteered that he missed seeing his half-sister, [Y].[10]
[9] Ibid paragraph 21
[10] Ibid paragraph 22
The child’s father is Aboriginal. It is reported in the Family Report that he is encouraged to take pride in both his Aboriginal heritage and his Chilean heritage (on his mother’s side). The school provides an Aboriginal teacher, from whom [X] learns about his indigenous culture.
There is a family violence order in force, being an Apprehended Domestic Violence Order made by the Downing Centre Local Court on 15th March 2012. The Order is in force for 12 months and the Mother is the protected person. The Father was present in court when the order was made.
Although the child is not named as a protected person, the Apprehended Domestic Violence Order requires that the Father (referred to in the order as “the defendant”) must not:
a)assault, molest, harass, threaten, or otherwise interfere with: -
b)engage in any other conduct that intimidates:-
c)or stalk:-
the protected person “or a person with whom the protected person has a domestic relationship”.
The term “domestic relationship” is defined by s.5 of the Crimes (Domestic and Personal Violence) Act 2007. The child is a person with whom the mother has a domestic relationship under s.5(d) and (g) of that Act.
There was a previous family violence order in force.
On the evidence before the Court, noting that the Father has not chosen to attend either the interview for the Family Report or the Court itself when the matter was mentioned on 3rd September and 10th December, or the hearing on 17th December 2012, I am satisfied that it is in this child’s best interests to continue to live with his mother and not to spend time with his father, or communicate with him, unless and until he expresses a wish to do so.
The evidence of family violence and the existence of the current family violence order are sufficient, in my view, for the Court to find that the presumption in subsection 61DA(1) of the Family Law Act that it is in the child’s best interests for his parents to have equal shared parental responsibility for him, does not apply (see s.61DA(2)).
Further, I am satisfied that there is evidence from the Father’s substance abuse, homelessness and failure to pursue a relationship with his son from 2006 until 2011, that it is not in the child’s best interests for the child’s parents to have equal shared parental responsibility for him (see s.61DA(4)).
The Mother is to have sole parental responsibility for the child [X].
These Orders have been made in the Father’s absence. Should he wish to apply to vary or set aside all or any of the Orders made, the Father will need to make application to the Court under the provisions of Rule 16.05 of the Federal Magistrates Court Rules 2001.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 17 January 2013
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