Harvey and Vamora

[2013] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARVEY & VAMORA [2013] FCCA 2303

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the child – passport – where father has mental health issues – where there is a need to protect the child from harm – Australian passport – issue of Australian passport – where one parent does not consent to issue of passport – travel – international travel – permission for child to travel internationally – where mother wishes to take the child on a holiday to (country omitted) – where presumption of equal shared parental responsibility does not apply because of a history of family violence.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y

Applicant: MS HARVEY

First Respondent: MR VAMORA

File Number: SYC 2469 of 2007

Judgment of: Judge Scarlett

Hearing date: 17 December 2013

Date of Last Submission: 17 December 2013

Delivered at: Sydney

Delivered on: 17 December 2013

REPRESENTATION

Solicitor for the Applicant: Ms Escobar

Solicitors for the Applicant: Clayhills Solicitors

Solicitor for the Respondent: Mr Gelonesi

Solicitors for the Respondent: GP Legal

Counsel for the Independent Children's Lawyer: Mr Schroder

Solicitors for the Independent Children's Lawyer: Mahony Family Lawyers

ORDERS

1. All earlier parenting Orders are discharged.

2. The Applicant Mother is to have sole parental responsibility for the child of the marriage X (known as X) born (omitted) 2003.

3. There is to be no contact between the child X and the Respondent Father.

4. The Respondent Father is restrained from filing any Application without leave of the Court and such Application must be accompanied by a Psychiatric Report detailing the Respondent Father’s current mental health.

5. The Applicant Mother is permitted to take the child X born (omitted) 2003 out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975.

6. The child X born (omitted) 2003 is permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Applicant mother is permitted to apply for the issue of an Australian passport to the child X under the provisions of s.11(4)(b)(i) of the Australian Passports Act 2005.

7. The Independent Children’s Lawyer is discharged.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2469 of 2007

MS HARVEY

Applicant

And

MR VAMORA

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a boy named X, who is now ten years old, for parenting orders against the Father. The presenting problem has been the Father’s mental illness, which has caused the Mother some concerns about her safety and that of the child.

Background

1. The current proceedings have been on foot since 1^st November 2011, when the Father commenced proceedings seeking that the Mother be dealt with for contravention of parenting orders made by consent on 19^th November 2007.

2. The parties entered into consent Orders on 16^th December 2011, varying the earlier Orders and providing that the Father’s time with the child should be supervised. An Independent Children’s Lawyer was appointed. A Family Report was later ordered and completed by the Family Consultant on 18^th September 2012.

3. On 20^th November 2012 the parenting proceedings were listed for final hearing on 31^st July 2013, to go to 2^nd August.

4. The final hearing did not proceed on 31^st July 2013, due to the Father’s mental state. The Father’s solicitor sought an adjournment of the proceedings because the Father had not sought treatment for his mental illness.

5. On 2^nd August 2013 the Court made the following Orders:

   1.  Noted

   a. That it is an agreed fact the father suffers from a mental illness.

   b. That the solicitor for the father informed the court on 31^st July 2013 that the father has not sought treatment for his illness.

   c.  That one of the reasons that the solicitor for the father was seeking an adjournment of the hearing was to allow the father to obtain medical treatment and thereby the solicitor would be able to properly present the father’s case.

   Orders

   Pending further order

   3.[1]     That the mother be granted sole parental responsibility for X born (omitted) 2003 and he live with the mother.

   4.  That the father spend no time with and not communicate with the child.

   [1] There is no Order 2

   5.  That the matter be adjourned to a date four months from this day.

   6.  That within 28 days the father’s solicitor advise the Independent Children’s Lawyer and mother’s solicitors what steps have been taken by the father to address his mental illness including the particulars of any medical treatment that the father has made appointments for or commenced.

   7.  That seven days prior to the next adjourned date the father file and serve an affidavit setting out particulars of medical treatment he has undertaken including particulars of any institutions, psychiatrist, general practitioner or therapist he has attended and treatment he has undergone.

   8.  That in the event that the father fails to comply with Order 7 then the Independent Children’s Lawyer be at liberty to apply for the matter to proceed to finality on an undefended basis on the adjourned date.

   9.  That in the event that the father complies with Order 7 then the matter proceed on a direction and mention basis on the next occasion.

6. The Application was adjourned to 3^rd December 2013 for mention and directions. On that date the Father’s solicitor advised the Court that he was unable to provide any affidavit from his client setting out particulars of any medical treatment he had received.

7. The Application was listed for undefended hearing on 17^th December 2013. Both the Father and the Mother attended Court.

8. The Mother relied on her affidavit of 24^th July 2013. She also gave oral evidence. Counsel for the Independent Children’s Lawyer did not seek to cross-examine the Mother. Even though the matter was proceeding on an undefended basis, I offered the Father’s solicitor, Mr Gelonesi, an opportunity to cross-examine the Mother, but he elected not to do so.

9. Similarly, the solicitor for the Father elected not to make a closing submission.

Evidence and Submissions

1. It is the Mother’s evidence that she met the Father in Australia in 2002. He was required to leave Australia in September of that year as he was apparently an unlawful non-citizen and the Mother travelled to (country omitted), where the Father was residing, in November 2002. She returned to Australia when she found she was pregnant. The Father returned to Australia in July 2003. The child was born on (omitted) 2003.

2. The parties were married in March 2004 and separated in May of that year. They were divorced in March 2007.

3. The Mother deposed to various incidents of violence by the Father against her. There were proceedings for an Apprehended Violence Order against the Father in 2006 and 2008 and again 2011 and 2012. The Father was convicted for assaulting the Mother in 2005 and 2006.

4. The Mother gave various examples of violent behaviour by the Father towards her from 2008 onwards. The Father has also arrived at the Mother’s residence intoxicated. The Father has struck the child on occasions and threatened him and the Mother.

5. The Mother wishes to obtain a passport for the child so that she may take him on holidays, including to (country omitted) to spend time with his paternal grandparents and extended family.

Family Report

1. A Family report was prepared by Ms M, a Regulation 7 Family Consultant, on 18^th September 2012. In her Report, Ms M recommended that:

   a)the child should live with the Mother;

   b)the Mother should have sole parental responsibility for the child;

   c)the child should live with his mother; and

   It is recommended that, unless Mr Vamora is able to demonstrate that he does not have any mental health issues which might present a risk of harm to X, X not spend any time with his father.[2]

   [2] Family Report, pages 17-18

2. The Mother relies on the recommendations in the Family report in support of the orders she seeks.

The law to be applied in applications for parenting orders

1. Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s. 60B(1) of the Act, providing for children’s best interests to be met by:

   a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

   b)Protecting children from physical or psychological harm;

   c)Ensuring that they receive adequate and proper parenting; and

   d)Ensuring that parents fulfil their duties and meet their responsibilities.

2. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents;

   b)Children’s 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;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development; and

   d)Parents should agree about the future parenting of their children.

3. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3).

4. Subsection 60CC(2) is of particular relevance in this case. It provides:

   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.

5. The primary considerations are modified by s.60CC(2A), which provides that:

   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).

6. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.

7. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

8. All of these matters have been considered where relevant.

Conclusions

1. It is clear that this is a case where the presumption of equal shared parental responsibility does not apply because of the history of family violence and the mother’s fear that the father may engage in further violence towards her or the child in the past.

2. Consequently, the Court does not need to carry out the procedure set out in s.65DAA of the Act. This is not a case where, on the evidence, it would be in the child’s best interests for him to spend equal time or substantial and significant time with each parent. The father’s mental state and propensity for violence raise the question whether the father should spend any time with the child at all.

3. The Father was diagnosed by a psychiatrist, Dr M, with a paranoid condition. In a mostly supportive letter dated 20^th July 2012, Dr M noted that the Father had at times given him the impression that he had not been taking the prescribed amount of the medication, a drug called Zyprexa.

4. The best interests of the child are the paramount consideration. In my view, what benefit there is for this boy in having a meaningful relationship with his father at the present time is outweighed by the need to protect from physical or psychological harm from being subjected to or exposed to family violence. Until the Court can be assured that the Father has sufficient insight into his condition to seek appropriate treatment and abide by the directions and advice of his doctors, it cannot be in the best interests of the child to have any contact with his father.

Travel and Passport

1. The child himself is a boy aged 10 years and 4 months with a (omitted) background on his father’s side. It is significant to note the Mother’s evidence that she wishes to take him to (country omitted) for a holiday so that he may spend time with his paternal grandparents. This is something to be encouraged and the Mother will be permitted to take the child out of Australia for that purpose and apply for a passport for him. It is unrealistic to expect that the Father will sign the appropriate application form in his current mental state, noting that he has not been able to provide any evidence at all of any psychiatric treatment, let alone a prognosis.

2. I propose to order, in accordance with s.65Y(2)(b) of the Family Law Act 1975, that the mother will be permitted to take the child out of Australia, whether that be for a trip to (country omitted) to spend time with his extended family or for a holiday in (country omitted), as the Mother said in her evidence that she might wish to do.

3. I also propose to order, under the provisions of s.11 of the Australian Passports Act 2005 (Cth), that the mother be able to obtain an Australian passport for the child. Subsection 11(1) provides:

   (1)The Minister must not issue an Australian passport to a child unless:

   (a)each person who has parental responsibility for the child consents to the child travelling internationally; or

   (b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.

4. The fact that the Mother will have an order in her favour granting her sole parental responsibility for the child will of itself be sufficient to enable her to apply for a passport for the child, but for more abundant caution I propose to make an order under subparagraph 11(4)(b)(i) of the Act, specifically permitting the issue of an Australian passport to the child.

Restraint on a further application

1. I propose to accede to the submission that the Court should make an order restraining the father from filing any Application for parenting orders without leave of the Court unless he can provide a psychiatric report detailing the state of the Father’s mental health. This is not because the Father is a vexatious litigant, but because he has consistently demonstrated that his mental state is such that his ability to participate in parenting proceedings is questionable, almost to the point of requiring a litigation guardian. He has parted company with his previous solicitors for unknown reasons. His present solicitor, as I said in open court, has done everything that a conscientious legal practitioner could be expected to do to obtain from his client sufficient evidence to enable him to prosecute his case. It is no fault of his solicitor that the father has not produced any evidence to demonstrate that he has any insight into his mental illness. The nature of the Father’s mental state was demonstrated in court when he suddenly abused his solicitor, telling him to “Stop lying”. For the record, I saw nothing to indicate that the Father’s solicitor was acting in any way untruthfully.

2. In my view, until the Father’s mental health improves, it would not be in the child’s best interests to spend any time with his father, regrettable though that may be.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  14 January 2014