Hayman and Chesterton

[2012] FamCA 235

FAMILY COURT OF AUSTRALIA

HAYMAN & CHESTERTON [2012] FamCA 235

FAMILY LAW – CHILDREN – where the respondent mother seeks orders that she be permitted to relocate to Melbourne with the parties’ child – where the Independent Children’s Lawyer supports an order to that effect – where the applicant father did not appear at the hearing – where the evidence indicates that the father has been notified of the proceedings, and is unwilling to participate in them – where there are allegations of domestic violence by the father against the mother – where the father has not seen the parties’ child in almost two years – where the father has sporadic contact with the child via telephone – whether the orders proposed by each of the mother and the Independent Children’s Lawyer are in the child’s best interests – where the mother seeks to move so as to commence a permanent relationship with her partner – where the mother’s partner has been observed with the child, and no issues were noted in that respect by the family consultant – where it is in the child’s best interests to move with her mother to Melbourne. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Hayman

RESPONDENT: Ms Chesterton

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: BRC 10491 of 2008

DATE DELIVERED: 26 March 2012

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Murphy J

HEARING DATE: 26 March 2012

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Ms Meehan of

MM Meehan Lawyers

Orders

BY CONSENT IT IS ORDERED THAT

1. In accordance with the Minutes of Order and attached hereto.

2. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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 Annexure A hereto and these particulars are included in these orders.

IT IS FURTHER ORDERED THAT

1. The Independent Children’s Lawyer be discharged.

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 matter be removed from the pending cases list.

MINUTES OF ORDER

IT IS ORDERED BY CONSENT THAT:

1. The child, K Hayman born … .06.2008, live with the mother.

2. The mother have the sole parental responsibility of the child. 

3. The mother be allowed to relocate with the child to Melbourne.

4. The father shall spend time with the child at all times as may be agreed between the parents, however, failing agreement as follows:

IN BRISBANE

4.1.Once a year in Brisbane with the mother to provide at least twenty-eight (28) days notice to the father of her intention to be in Brisbane;

4.2.The mother will arrange to travel to Brisbane with the child;

4.3.The mother will make the child available to spend time with the father for five (5) consecutive days for day time contact (e.g. from 9:00am until 5:00pm each day);

4.4.The father shall advise the mother of the specific times that he is able to spend time with the child and as to the place he intends to spend time with the child (e.g. Location 1, Location 2, parks, lunches etc);

4.5.The mother shall be present during the father’s visits with the child, though the mother will not interfere with the father’s time with the child;

4.6.If the father becomes irritated or fatigued during his visits with the child, he can end the visit early;

4.7.The father’s parents and sister are encouraged to also attend the visits with the father.

4.8.Each party shall be responsible for their separate costs of travel and spending time with the child.

IN MELBOURNE

4.9.The father shall provide at least twenty-eight (28) days notice to the mother of his intention to be in Melbourne;

4.10.Once the child commences Preparatory Education, the father shall schedule his visits during the child’s school holidays;

4.11.The father shall be accompanied by either of his parents during these visits;

4.12.The mother shall make the child available to spend time with the father for daytime contact (e.g. from 9:00am until 5:00pm) on each day that the father is in Melbourne, PROVIDED that time is on more than five (5) consecutive days and such blocks occur no more than four (4) times per year;

4.13.The father shall advise the mother of the specific times that he is able to spend      time with the child and as to the place he intends to spend time with the child (e.g. Location 2, parks, lunches etc);

4.14.The mother shall be present during the father’s visits with the child, though the mother will not interfere with the father’s time with the child;

4.15.If the father becomes irritated or fatigued during his visits with the child, he can end the visit early;

4.16.Each party shall be responsible for their separate costs of travel and spending time with the child.

1. The father’s time with the child shall be supervised to the following extent:

5.1.For the next five (5) years, the mother shall be present during the father’s time with the child, though the mother will not interfere with the father’s time with the child;

5.2.If over the next five (5) years, the father does not consistently spend time with the child at least once a year OR there have been aggressive or threatening incidents by the father, then the mother shall continue to be present during the father’s time with the child for an additional three (3) years;

5.3.The father shall be accompanied by either of his parents when he spends time with the child.

1. Neither parent will denigrate the other parent in the presence or hearing of the child. 

2. Neither parent be under the influence of drugs or allow the child to come into contact with any person who is under the influence of drugs, during any time the child is in their care or supervision.

3. Neither parent shall allow Mr D, Mr P, or Mr A to be alone with the child.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: BRC 10491 of 2008

Mr Hayman

Applicant

And

Ms Chesterton

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Each of the parties bring to these parenting proceedings that pertain to K, born in June 2008 a significantly compromised past.  That past is detailed at some length in reports prepared by a family consultant, Ms B. 

2. It includes in the case of the mother, her being the victim of family violence and in particular, the victim of family violence at the hands of the father.  She has also been the victim of inappropriate sexual behaviour when she was a young woman.

3. The father is compromised, in particular, by reason of an accident that occurred when he was a young child.  His mother, who was ultimately appointed as his litigation guardian late last year, deposes to him suffering serious head injuries when he was about 8, when he fell from a bunk bed, out of a window, onto concrete. 

4. He was in a coma for nearly a week.  He was treated in intensive care and she deposes to significant difficulties experienced by him, since that time, attributable to what might be called for present purposes, a brain injury.

5. The father was previously represented in his own right, but late last year, an order was made that his mother be appointed litigation guardian for him.  A neuropsychological report had been filed in these proceedings (albeit it some years ago). That report reveals that the father is:

   Easily overwhelmed when the information was presented verbally, in prose fashion, and I expect that he will have a great deal of difficulty following any court proceedings or of giving instructions.

6. Whether or not as a result of that difficulty and its wider ramifications which have included, as is evident from the report of Ms B, significant cannabis use, it is a fact that there has been no face-to-face time between the father and his daughter for nearly two years. 

7. The father last saw his daughter at about Easter time, 2010.  He has been having telephone contact with her, but that too has been somewhat sporadic.  The last such telephone contact was about two months ago and the mother advises this morning that, in the last 12 months, there have been about six or eight occasions of telephone time. That telephone time has itself had difficulties which are again recorded comprehensively in Ms B’s report. 

8. Ms B, in her most recent report dated 8 December 2011, reports upon her attempts to contact both the father and his mother, who is his litigation guardian.  Those events proved unsuccessful in each case.  Notwithstanding that difficulty, the report of Ms B is comprehensive and helpful.

9. The current orders are proposed by both the mother and the Independent Children’s Lawyer. 

10. They see the mother moving with K to Melbourne so that the mother can commence a permanent relationship with her partner.  In light of the circumstances earlier referred to, the Court must, notwithstanding consent between those parties and non-participation by the father, pay particular regard to the statutory considerations, and in particular, those relating to parental capacity and the like. 

11. Ms B records at paragraph 80 of her report:

    The mother’s parental capacity is not in dispute, nor are there any issues with regard to [K’s] care, and so, therefore, will not be explored to a great extent, except to note the characteristics observed of [K’s] relationship with her existing caregivers within the maternal family.  These characteristics observed reflected [K’s] confidence in the adults in her life, her familiarity with caring, cooperative and affectionate relationships are all positive indicators for her ongoing healthy development.

    With regard to [the mother’s female partner], co-parenting with [the mother], she did not appear intrusive (through observation and her self-report of her role) into [the mother’s] parenting, but supportive and complementary instead.  [K] reports, as does the mother, a number of particular difficulties in the telephone time that the father has been spending with [K].

12. Ms B takes up that issue in her report and says:

    [The father] needs to understand that if [K] is exposed to swearing by [the father] or speaks of yelling or denigration between her parents, she will stop wanting to talk on the phone with her father.  If this were to continue, [K] will not find the telephone helpful to form a trusting bond with her father.  Currently, the phone calls are supervised by [the mother] and in the instance of swearing, she ceases the phone call…

13. I have already referred to the issue of cannabis use.  Plainly, that is a significant issue, to the extent that it impairs parental capacity.  In respect of the father, Ms B notes that because of his failure to participate in the report interviews or for there to be any other opportunity for Ms B to observe the father, she cannot comment on his current cannabis use, save to note that the ATODs attendance, or urine screens that might otherwise have been required by the Independent Children’s Lawyer, have not been conducted.

14. There is a significant history of heavy cannabis use and according to Ms B’s report:

    An ambivalent attitude on the part of his mother towards that …  She seems to suggest that it “takes the edge off” the more acute aspects of behaviour and implicitly, at least, as a result, condones its use.

15. Ms B specifically addresses the issue of the mother’s proposed relocation to Melbourne, so as to form a relationship with her female partner.  She makes the obvious point that the nature of the relationship between the mother and her partner, although referred to in disparaging and derogatory terms by the father, is irrelevant, of itself, to the future care of K and to her development. 

16. In a comprehensive part of the report, Ms B details the advantages and disadvantages if K was to travel to Melbourne and live with her mother in that city. A consideration of the circumstances there discussed by reference to K’s best interests weigh heavily in favour of the mother’s relocation occurring. 

17. It is not necessary in the current context to outline in detail the s 60CC Considerations and all of the objects and principles in Part VII of the Act.  I think it will be obvious from what I have already said, and certainly from the comprehensive report by Ms B, that each and all of the factors relevant to those considerations have been considered as indeed they have in the mother’s self-prepared affidavit, filed 2 March 2012.

18. In that affidavit, the mother addresses each of the relevant s 60CC considerations.  The mother, who, as I say, represents herself, has filed an affidavit of service of her affidavit and notice of address for service, on both the Independent Children’s Lawyer and the father’s mother, at her address. 

19. The form of affidavit does not disclose in terms, the documents so served, but by reference to Division 12A of the Act, I enquired of the mother, from the bar table, information about the documents so forwarded and she indicated that her notice of address for service and affidavit filed 2 March 2012 had been served on both the husband’s mother and Ms Meehan, who is the Independent Children’s Lawyer.

20. The history of this matter reveals a significant lack of participation on the part of the father in these proceedings, and an indication, in fact, that he may not have been, even when represented, particularly interested in pursuing any orders in respect of his daughter.

21. The family report, to which I have referred, sets out comprehensively the s 60CC considerations and makes comprehensive recommendations.  At the time that the report was released, the father was represented and the family report was forwarded to his solicitors.  The orders upon which both the mother and Independent Children’s Lawyer agree, and ask the Court to make, largely mirror the recommendations outlined by Ms B in that report.

22. I have already said that the mother’s compromised past involves her being the victim of sexual misconduct.  It seems that her siblings, too, had a compromised past.  One of them has been the subject of criminal proceedings in respect of a sexual offence involving a child.  Ms B refers to the fact that the mother expresses her abhorrence at this sort of behaviour and has taken appropriate steps to ensure that K is protected from it. 

23. In that respect, the orders contain two provisions. The first, at paragraph 8, is a restriction on each of the parents permitting K to come into contact with a number of named individuals who might be seen, at least on the surface of it, to present a potential risk to the child.  Secondly, as a result of all of the issues to which I have earlier referred and their capacity to present a risk to K, paragraph 5 of the orders provides for the time between the father and K to be supervised for the next five years.

24. In all of the circumstances, I am satisfied that the orders sought jointly by the Independent Children’s Lawyer and the mother are in K’s best interests. 

25. I am satisfied that the father has had notice of these proceedings and has, by his past conduct, indicated an unwillingness, or unwillingness to participate within them.  In my view, it is appropriate to make orders notwithstanding the father’s non-appearance.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 26 March 2012.

Associate: 

Date:  18 April 2012