HERMAN & DENNIS & ANOR (No.2)
[2012] FMCAfam 1000
•20 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERMAN & DENNIS & ANOR (No.2) | [2012] FMCAfam 1000 |
| FAMILY LAW – Children – Parenting – Variation of Orders – best interests of the children – where respondent did not attend court on final hearing – where respondent did not attend appointment with Family Consultant for preparation of Family Report – where children had been living with father under interim orders – where father returned children to mother prior to hearing – parental responsibility – whether parties should have equal shared parental responsibility for the children – where mother seeks sole parental responsibility – history of litigation between the parties – where equal shared parental responsibility not in children’s best interests – doubtful that equal shared parental responsibility reasonably practicable in the circumstances where father is not spending time with the children. COSTS – Costs of Independent Children’s Lawyer – where respondent father had no knowledge of the application for costs – procedural fairness – application for costs should be served on the respondent before the Court entertains an application for costs against him – conduct of the parties in relation to the proceedings. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA, 68L, 117 Federal Magistrates Court Rules 2001 Rule 13.03C |
| Dennis & Dennis [2009] FMCAfam 665 Dennis & Herman [2011] FMCAfam 252 Dennis & Herman (No.2) [2011] FMCAfam 666 Goode v Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346 Herman & Dennis [2011] FMCAfam 1459 Herman & Dennis [2012] FMCAfam 85 Dennis & Herman & Anor [2012] FMCAfam 367 |
| Applicant: | MS HERMAN |
| First Respondent: | MR DENNIS |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | SYC 5373 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 18 & 19 July 2012 |
| Date of Last Submission: | 19 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lawson |
| Solicitors for the Applicant: | Goldrick Farrell Mullan |
| Counsel for the first Respondent: | No appearance |
| Solicitors for the first Respondent: | No solicitor on the record |
| Counsel for the Independent Children’s Lawyer | Mrs Cotter-Moroz |
| Independent Children’s Lawyer | Mrs Dhaliwal, Shorehills Legal Solicitors |
ORDERS
All previous parenting Orders are discharged.
The Applicant Mother is to have sole parental responsibility for the children X born (omitted) 1999 and Y born (omitted) 2001.
The children X and Y are to live with the Applicant Mother.
The Respondent Father is to spend time with the children in accordance with the following Orders and that for such periods of time the Father shall arrange for the children to be collected from or delivered to their respective schools where such periods of time commence or end on a school day, and that the Father or his representative shall deliver the children to or collect the children from the Mother at (omitted) Railway Station at all other times:
(a)As agreed, but failing agreement as provided in paragraphs (b) to (k) of this Order;
(b)Every second weekend during the school term from the conclusion of school on Friday to 5:00pm on Sunday or 5:00pm on Monday if the following Monday is a public holiday, with the first of such weekends commencing on Friday 28 September 2012;
(c)In 2013 and every odd numbered year thereafter from the conclusion of school on the last day of school in Term One to 10:00am on the day being the midpoint of the Easter school holiday period. Where the Easter long weekend falls in the middle of the school holiday period, the midpoint shall be considered to be Easter Saturday;
(d)In 2014 and every even numbered year thereafter from 10:00am on the day being the midpoint of the Easter school holiday period to 5:00pm on the day immediately prior to the commencement of school on the first day of the new school term. Where the Easter long weekend falls in the middle of the school holiday period, the midpoint shall be considered to be Easter Saturday;
(e)In 2013 and every odd numbered year thereafter during the July school holiday period from the conclusion of school on the last day of Term Two to 5:00pm on the day immediately prior to the commencement of school on the first day of Term Three;
(f)In 2012 and every even numbered year thereafter during the September/October school holiday period from the conclusion of school on the last day of Term Three to 5:00pm on the day immediately prior to the commencement of school on the first day of Term Four;
(g)In the Christmas/January school holiday period commencing in 2012 and every even numbered year thereafter from the conclusion of school on the last day of the school term to 10:00am on the day being 18 nights from the commencement of the father’s time with the children;
(h)In the Christmas/January school holiday period commencing in 2013 and every odd numbered year thereafter from 10:00am on 12 January to 5:00pm on the day immediately prior to the commencement of school on the first day of the new school year; and
(i)On the weekend that includes Father’s Day in each year from the conclusion of school on the Friday to 5:00pm on the Sunday.
Notwithstanding anything contained in Order (4)(b) above, the children will spend time with the Mother on the weekend that includes Mother’s Day in each year.
If the Father intends to spend time with the children on weekends in accordance with Orders (4)(b) and (4)(i) above he must confirm to the Mother by email his intention to do so no later than seventy two (72) hours prior to the commencement of the scheduled time with the children and if he fails to do so he will be deemed not to intend to spend time with the children on that weekend.
If the Father intends to spend time with the children during school holidays as provided by Orders (4)(c) to (4)(h) inclusive he must confirm to the Mother by email his intention to do so no later than three (3) weeks prior to the commencement of the relevant school holiday period and if he fails to do so he will be deemed not to intend to spend time with the children during that holiday period.
Both parties may attend all school, sporting and other extra-curricular activities involving the children at which parents normally attend and the party who has the children in his or her care at the time of the activity according to these Orders will be responsible for the day to day care of the children and for the children’s transportation to and from the particular event unless the parties agree otherwise.
The Mother must notify the Father in writing of any long term decision that affect the children or either of them no later than 21 days prior to her making such decision.
The Mother must provide a written authority to any school that the children attend that permits the school to communicate to the Father details of the children’s progress, welfare and education.
The Mother must provide a written authority to any school that the children attend authorising the school to provide to the Father at his expense copies of all school reports, school photographs, newsletters, bulletins and other documents usually sent to parents of children attending that school.
The Mother must provide a written authority to any treating medical practitioner, counsellor, psychologist or other like professional for the children permitting them to communicate to the Father details of the children’s progress, welfare and health.
Each parent must notify the other of their full residential address no later than 21 days prior to any change of residence.
Each parent must advise the other as soon as reasonably practicable of any medical emergency or significant illness suffered by either of the children at any time that the child is in their care and provide details of any treatment sought, including the names and addresses of any treating medical practitioners and details of the treatment prescribed or proposed.
Each parent is permitted to take the children or either of them out of the Commonwealth of Australia when the children are living with or spending time with that parent on the following conditions:
(a)The travel outside the Commonwealth of Australia must only be to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
(b)The travel outside the Commonwealth of Australia must not be to any destination listed by the Department of Foreign Affairs and Trade’s travel advisory service as a destination to which travel is not advised or for which the need for travel should be considered or for which the exercise of extreme caution is recommended at the time of the intended travel;
(c)The travelling parent must provide the other parent with no less than three (3) weeks’ notice in writing of the proposed travel including the departure and return dates, details of all flights, countries and cities to be visited, the dates on which the parent and the children will arrive and depart each country, details of intended accommodation and contact telephone numbers where the parent and the children can be contacted and if available a written itinerary containing details of return flights for the children;
(d)The travelling parent must ensure that where practical the child or children telephone the other parent on at least one occasion each week whilst the child or children are out of the Commonwealth of Australia at a time to be agreed and in the absence of agreement between 6:00am and 9:00am Australian Eastern Standard Time or Australian Eastern Daylight Saving Time as the case may be.
Each child may travel outside the Commonwealth of Australia for organised school or extra curricular activities by mutual written consent of both parties.
Within fourteen (14) days of the date of these Orders the Mother and Father must do all acts and things and sign all documents necessary for the issue of new passports for each of the children X born (omitted) 1999 and Y born (omitted) 2001.
Not less than three (3) months prior to the expiry of the children’s passports the Mother and father must do all acts and things and sign all documents necessary for the issue of a new passport for each child.
In the event that either or both of the children’s passports are lost, stolen or damaged, the Mother and Father must do all acts and things and sign all documents necessary for the issue of a new passport for either or both of the children within seven (7) days or such lesser time as shall be necessary if travel in accordance with these Orders is imminent.
In the event that either party fails or neglects to sign a passport application form for either of the children then a Registrar of this Court is authorised to sign such an application in lieu of either party who fails or neglects to sign the passport application.
The Mother is to retain the children’s passports.
If the Father is to travel out of the Commonwealth of Australia with the children or either of them the Mother must provide the passports to the Father a reasonable time before the date of the proposed travel and the Father must return the passports to the Mother on the first occasion when the children are returned to the Mother’s care.
The Independent Children’s Lawyer is to nominate an appropriate service for counselling the children within reasonable proximity to the Mother’s residence and within fourteen (14) days of such notification the Mother must do all acts and things and attend all intakes and appointments and cause the children to attend all intakes and appointments as required, requested or organised by the counselling service.
If the counsellor of the children request that either or both parents attend the counselling referred to in Order (20) above then both parents are entitled to attend the counselling even if it falls on a day when the other parent is spending time with the children.
Neither parent is to denigrate the other or any member of the other parent’s family or any person with whom the other parent is in a relationship in the presence or hearing of the children or use any form of communication to denigrate the other or any member of the other parent’s family or any person with whom the other is in a relationship including but not limited to Facebook or other electronic media, letters or telephone.
Each party is restrained by injunction from exposing the children or either of them to any family violence.
Each party is restrained by injunction from physically disciplining the children or either of them.
The Application by the Father filed on 22 October 2010 that the Mother should be dealt with for contravention of the Orders made on 29 October 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Herman & Dennis & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5373 of 2007
| MS HERMAN |
Applicant
And
| MR DENNIS |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of two girls, X and Y, to vary Orders made by this Court on 29th October 2009 (Dennis & Dennis[1]). Those Orders had provided that the children should live with the Mother and spend time with the Father. The parties were to have equal shared parental responsibility for the children.
[1] [2009] FMCAfam 665
The Mother now seeks to have sole parental responsibility for the children, that they should live with her and spend time with the Father.
The Father’s position had been that the Orders should remain unchanged.
The Father has chosen not to attend Court for the final hearing. The children had been living with him as a result of interim Orders made by this Court but he returned them to the care of the Mother. He elected not to participate in the interviews for the Family Report
Background
The parties were married on (omitted) 1995. There are two children of the marriage, X and Y.
X was born on (omitted) 1999. She is now 13 years of age.
The parties separated on 6th March 2001, when the Father left the matrimonial home.
When the separation occurred, the Mother was pregnant with the parties’ second child, Y, who was born on (omitted) 2001. Y is now 11 years of age.
Both parents have re-partnered. The Father has re-married and he and his wife Ms G now have a child of their own, a little boy who was born in (omitted) 2009. The Mother has formed a new relationship.
As Walker FM noted in her decision in October 2009:
They have been involved in Court proceedings since late 2006 in relation to their dispute about how the children should be raised.[2]
[2] [2009] FMCAfam 665 at [1]
On 29th October 2009 her Honour made final Orders, providing for the parties to have equal shared parental responsibility for the children. The children were to live with the Mother and spend time with the Father, as set out in some detail by her Honour in the Orders.
Order (11) made by her Honour provided that:
Neither parent is to change the school enrolment of either of the children, including enrolling either child in a High School, without the written consent of the other parent.
At the time, the children were attending primary school at (omitted) Public School, on the (omitted). The Mother was then living at (omitted), some 25 kilometres distant from (omitted).
On 26th May 2010 the Mother, who had reverted to the name of Herman, filed an Application in respect of Order 11, seeking this Order:
That notwithstanding Order 11 of the Final Orders made 29 October 2009, the Mother shall be permitted to enrol the children, X born (omitted) 1999 and Y born (omitted) 2001 at (omitted) Public School without the written consent of the Father.
On 30th September 2010 the Mother filed an Amended Application, seeking significant variations of the earlier Orders, including:
a)an order that she should have sole parental responsibility for the children;
b)variation of the times that the children spent with their father;
c)leave to enrol the children in sporting and extra-curricular activities;
d)arrangements for overseas travel with the children; and
e)arrangements for passports for the children.
The Father filed a Response on 22nd October 2010 seeking these Orders:
1. No changes to orders
2. Ms Herman be reprimanded for not following orders.
He also filed an Application seeking that the Mother should be dealt with for contravention of the earlier orders.
On 8th November 2010 the Court ordered that the children’s interests should be separately represented under the provisions of s.68L of the Family Law Act.
The Father’s Application for the mother to be dealt with for contravention of the earlier Orders was heard on 18th February 2011. The Mother’s then solicitor, Mr F, applied for an order summarily dismissing the Application. That application was itself dismissed on 22nd March 2011 (Dennis & Herman[3]).
[3] [2011] FMCAfam 252
The contravention proceedings were adjourned part-heard to 1st July 2011 for completion. However, those proceedings were overtaken by events. During the intervening period, the mother had left New South Wales to travel to the Northern Territory to undertake a course of training which would require her to remain away for some weeks or months to come. The Mother had initially left the girls in the care of their maternal grandparents, but the girls had shortly afterwards gone into the care of their father.
The Court heard submissions about interim arrangements for the children and then made orders until further order, providing that:
a)the Final Orders made on 29th October 2009 were suspended;
b)the parties were to have equal shared parental responsibility for the children;
c)the children were to spend time with the Father from 12:30pm Sunday 3 July until further Order;
d)the Mother was to return the children to the care of the Father by 12:30pm on Sunday 3 July;
e)the parties were restrained by injunction from removing the children from the State of New South Wales; and
f)the Application was adjourned to 22nd July 2011 for further mention (Dennis & Herman (No 2)[4]).
[4] [2011] FMCAfam 666
On 19th September 2011 the Mother filed an Application in Case, seeking Orders permitting her to take the children to the Northern Territory for a holiday between 23rd September and 9th October 2011. Orders to that effect were made by consent on 23rd September 2011.
The substantive Application was listed for final hearing from 18th to 20th July 2012 and the parties were ordered to attend upon a Family Consultant for the purpose of preparation of a Family Report under the provisions of s.62G of the Family Law Act.
The Mother filed a Further Amended Application on 25th November 2011, in which she sought Orders:
a)discharging all previous Orders;
b)that the children should live with the Mother;
c)that the Mother should have sole parental responsibility for the children; and
d)that the children should spend time with the Father as defined.
The Further Amended Application only sought final orders and was made returnable on 18th July 2012, the first day of the final hearing.
However, on 9th December 2011 the Mother filed an Application seeking Orders on an urgent basis (summarised):
a)that the children should live with her;
b)that the Father should spend time with the children on weekends and during the school holidays;
c)that the Father or another responsible adult nominated by the Father must be physically present with Y at all times when the children are spending time with the Father and at no time should Y be left in the sole care of X;
d)that the Father should not leave X to be left alone without adult supervision after dark; and
e)that all communications between the parties be by email or text message.
The Application was supported by a large affidavit by the Mother, in which she referred to incidents on 1st December and 5th December 2011, in which she claimed the girls complained to her about violent behaviour by the Father. She deposed that they complained that he had broken a door and on one occasion had gone out of the house after locking them both in the garage of his home.
The Application was returnable on 20th December 2011. On that day, the Father did not appear. He sent a message indicating that he would not be attending Court because he had been served in insufficient time and had not been given an opportunity to respond formally. He stated that there was nothing urgent about the matter. The Independent Children’s Lawyer sought leave to appear by telephone, because she was ill.[5]
[5] Herman & Dennis [2011] FMCAfam 1459 at [2]
Like the Father, the Independent Children’s Lawyer was not persuaded that sufficient urgency had been established to justify an urgent hearing and opposed the orders sought by the Mother.
Orders were made about the children spending time with the Mother at various times during the school holidays and the Application was listed for Interim Hearing on 11th January 2012.
On 11th January 2012 the Father filed in Court a Response and an affidavit affirmed that day. On 13th January 2012 Orders were made until further order that (summarised):
a)The children would continue to live with their father;
b)They were to spend time with their mother at various times during the school holidays, including the whole of the July school holidays, on alternate weekends and on various special days, including Mother’s Day;
c)The Father was permitted to take the children to Perth for a holiday;
d)Neither party was to leave either of the children without the supervision of a responsible adult;
e)Neither party was to use any physical discipline on the children;
f)The child X was to be enrolled at (omitted) Girls High School;
g)The child Y was to continue to attend (omitted) Public School; and
h)The parties were to arrange suitable counselling for the children (Herman & Dennis[6]).
[6] [2012] FMCAfam 85
The proceedings were listed for Final Hearing from 18th to 20th July 2012, with a Family Report to be provided under the provisions of s.62G of the Family Law Act.
On 3rd April 2012 the Father filed an Application in a Case seeking that recovery order should issue for the return of the children to his care if the Mother did not return them forthwith. The Application was supported by an affidavit from the Father affirmed that day in which he deposed that the Mother had collected the children from their schools on the afternoon of Friday 30th March but had not returned them to school on the following Monday.
On 11th April 2012 the Father and the Independent Children’s Lawyer attended Court but the Mother did not. An order was made requiring the Mother to attend Court on 13th April and bring the children with her to the Court precincts.
The parties attended Court on 13th April 2012. By that time, the Mother had obtained legal representation. It was submitted on behalf of the Mother that she had taken the children to the police station at (omitted) New South Wales, complaining that the Father had assaulted the younger child Y. The Police had arranged for the issue of a provisional apprehended domestic violence order returnable at (omitted) Local Court on 30th April 2012.
Orders were made that:
a)the Mother was to return the children to the care of the Father by 6:00pm on 15th April;
b)the Family Report ordered on 23rd September 2011 was to be prepared as a matter of urgency;
c)the Mother was to file and serve a Notice of Address for Service and an affidavit setting details of her new residential address by 20th April 2012;
d)liberty to apply on 48 hours’ notice (Dennis & Herman & Anor[7] )
[7] [2012] FMCAfam 367
The children were returned to the care of their father.
The Family Report ordered by the Court was completed by a Regulation 7 Family Consultant, Ms S, on 6th June 2012 and released by the Court to the parties the following day. That Report contained the rather surprising news that the Father had returned the children to the Mother on 11th May and had said that they were not to return. Neither the Father nor his current wife attended the interviews arranged with the Family Consultant and the children had remained living with their mother since that time.
Evidence
The proceedings were listed for Final Hearing commencing on Wednesday 18th July 2012. The Mother and the Independent Children’s Lawyer attended Court but there was no appearance by or on behalf of the Father. Counsel for the Independent Children’s Lawyer told the Court that the Independent Children’s Lawyer had spoken to the Father the previous Wednesday (11th July) and he had informed her that he would not be participating in the hearing.
The Independent Children’s Lawyer gave oral evidence in which she described how she made several attempts to call the Father on the telephone on 14th May and left messages for him, which were not returned. She said that she had sent an email to the Father asking him what orders he sought at the hearing. On 10th July 2012 she telephoned the Father at about 5:15pm and asked him if he was going to attend the hearing and he replied “No I’m not, sorry to say. Thanks” and hung up the telephone.
It was clear that the Father would not be attending Court or participating in the hearing in any way. Accordingly, despite the misgivings of the Independent Children’s Lawyer, I made the decision that it was in the best interests of the children to proceed with the hearing generally, as provided by Rule 13.03C.
The Mother gave oral evidence that the children had last seen their father on Friday 11th May when he had returned the children to her care. She said that the children had not spoken to their father since 29th June. She said that they had not expressed any intention to communicate with their father, even though she had encouraged them to call him. She said that she knew that if their father rang them that they would speak to him on the telephone.
The Mother said that the Apprehended Violence proceedings were before (omitted) Local Court on 27th July 2012.
It was the Mother’s evidence that the children were “stunned” when, on 11th May, the Father handed over their clothes to their mother and said “And don’t bring them back”.
The Mother went on to say that she and her partner Mr P planned to marry. It is her intention to remain living in the (omitted).
As the children have been living with her since May, the Mother has enrolled X at (omitted) High School and has enrolled Y at (omitted) Public School.
The Mother expressed the opinion that the children missed their father and missed speaking to their half-brother A and the Father’s wife, Ms G. She said that she thought the children wanted to spend time with their father, saying:
“He’s their father and there is a child-parent bond that is unbreakable”.
The Mother said she accepted that the children have a significant attachment to the Father and his family and she believed that it was important that this be maintained. She proposed to do that by “spend time with” orders. She went on to say that there had been four phone calls to the girls from Ms G and A and she was amenable to allow them to spend time with the children.
The Independent Children’s Lawyer wished to call the writer of the Family Report, Ms S, to give evidence, even though counsel for the Mother did not seek to cross-examine her.
Ms S gave evidence that she believed the children might be feeling rejected by their father and confused about the continuity of their relationship with him. In answer to a question from Ms Lawson of counsel, who appeared for the Mother, Ms S said that the Father had not contacted her since the appointments for the Family Report. He had just left a brief message saying that he would not be participating in the assessment.
The Mother’s partner, Mr P, gave evidence by telephone. He affirmed the contents of his affidavit and said that he was happy to live wherever the Mother was happy to live.
The Family Report
For the purpose of preparing the Family Report, Ms S interviewed the Mother and, later, Mr P. She assessed the children and observed them with their mother and Mr P. Ms S also spoke to the mother on two later occasions by telephone.
Under the heading “Limitations of Family Report”, Ms S stated:
Mr Dennis, the children’s father, did not attend his appointments so it was not possible to meet him, or his wife, Ms G. Mr Dennis has not responded to attempts to make contact by telephone. This is considered a serious limitation as no direct information was gathered about Mr Dennis’ views and proposals so the evaluation of the situation is therefore limited.[8]
[8] Family Report page 2
The Family Consultant summed up the issues in this matter very accurately when she stated at paragraph [13] of the Report:
The issues in dispute are ostensibly about whether the children should live mainly with their father or mother. However, this decision may have already been made by recently unfolding events. The issues also seemed to consist of communication difficulties between the parents and different approaches by the parents about the children’s schooling and living arrangements. During the assessment, the parents’ impulsivity in relation to decisions affecting the children was also identified as an issue.[9]
[9] Family Report page 6
The Family Consultant said that the children had seemed keen to talk about the events earlier that day. Their father had apparently told them that they could not live with him any more and they should live with their mother:
The girls sounded a little puzzled and said their father had not spoken much but had been ‘sad and angry’”.[10]
[10] Ibid page 10 [27]
The following morning, the girls had noticed that their father was still unhappy. When their mother came to collect them, their father had given them a bag of clothes and, when they left, had said “Don’t come back”, although Ms G had apparently said that the girls were welcome at any time.
The Family Consultant described the children’s expressed wishes in some detail. It is worth quoting parts of this discussion:
They explained that they were used to living with their mother and wanted to do so again. They said they could not really explain why and that they enjoyed living with their father but just felt that they should be with their mother. They spoke positively about their mother and stepmother, emphasising how nice she is to them…They were asked specifically whether there is anything about their father’s behaviour they do not like and both girls looked puzzled and told the Regulation 7 Family Consultant that their father is really nice.
X and Y were asked if they ever feel nervous or scared around their father and both replied they do not, looking surprised. They reiterated that there was nothing they dislike about their father or his home but just that they want to be with their mother…
Y said they had three big fights over the past year and agreed that there had been an occasion recently when Mr Dennis had put his hand over her mouth. She said none of these arguments were reasons why she now wants to live with her mother.
X and Y were asked when they want to spend time with their father, if they do return to living with their mother. They answered straight away, as if they had already given this some thought, and said that they want to spend three weekends out of five with him. They said this had been a previous arrangement and they thought it a good plan. They pointed out they also wanted to spend time with their stepmother and infant brother, A.[11]
[11] Family Report, pages 11-12 [30]-[33]
The Family Consultant described the children as having a strong attachment to their mother but also having a significant attachment to their father and his family. Ms S was critical of the Mother’s “impulsive” actions, such as her move interstate for six months, as not being focused on the children’s need for continuity and as possibly introducing an element of anxiety in the children’s attachment:
This would likely (have) been confusing for the children and Ms Herman’s lack of insight as to the appropriateness of her actions at that time is concerning.[12]
[12] Ibid page 13 [38]
At the same time, Ms S had this to say about the Father’s actions:
It is difficult to comment on Mr Dennis’ actions but from the information provided, his actions on the day of the assessment seem emotionally rejecting and potentially confusing and anxiety-provoking for the children. He also seems to have behaved impulsively in this instance…[13]
[13] Ibid page 14 [41]
The Family Consultant recommended that, if the children continue residing with their mother, that arrangements be made for them to spend regular and significant time with their father. There should also be some continuity in their school environments. It was also recommended that the children be referred to a service such as Relationships Australia to assist them expressing their views and to provide a conduit for feedback to and from the parents.
Orders Sought
The proceedings continued into the second day, and counsel for the Independent Children’s Lawyer and counsel for the Mother each handed up a Minute setting out the orders they sought. Again, the Father did not attend.
As each party sought a significant number of orders, I made the decision to make some interim orders in order to guarantee the children’s residence arrangements and to permit the Mother to enrol the children at nearby schools without further delay. It is in the children’s best interests, after a number of disruptions in their lives over the past two years, to have some certainty brought into their lives. The Family Consultant refers in the Family Report to the children’s need for continuity.[14]
[14] Family Report page 13 [38]
Consequently, I made the following Orders until further order:
1.All previous parenting orders are suspended.
2.The children X born (omitted) 1999 and Y born (omitted) 2001 are to live with the Applicant Mother.
3.The child X is to attend (omitted) High School.
4.The child Y is to attend (omitted) Public School
5.The Respondent Father is to spend time with the children X and Y as agreed by the Applicant Mother.
6.Each party is restrained by injunction from using any physical force, physical discipline or physical chastisement on either of the children, X and Y.
The Relevant Law
In deciding whether to make a parenting order, the Court is required by s.60CA of the Family Law Act to regard the best interests of the child or children concerned as the paramount consideration. The Court determines what is in children’s best interests by considering the objects and principles of Part VII contained in s.60B of the Act and the matters set out in subsections (2) and (3) of s.60CC (see Goode v Goode[15] at [48]).
[15] (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346
The matters in subsections 60CC(2) and (3) are the primary and additional considerations respectively.
The primary considerations can be found in paragraphs (a) and (b) of subsection 60CC(2):
a)the benefit to children of having a meaningful relationship with both of their parents; and
b)the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The objects of Part VII are to ensure that the best interests of children are met by the means set out in s.60B(1):
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child (see paragraph 60CC(2)(a));
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (see in this regard paragraph 60CC(2)(b));
c)ensuring that children receive adequate and proper parenting; and
d)ensuring that parents fulfil their duties and responsibilities.
There are additional considerations set out in subsection 60CC(3) of the Act, including consideration of any views expressed by the children, and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views (see paragraph 60CC(3)(a)).
The Court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court under subsection 62G(2) or by making an order under section 68L for the children’s interests to be separately represented by a lawyer (see section 60CD), as it has in this case.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them,. This presumption does not apply in cases of abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted by evidence that equal shared parental responsibility would not be in the children’s best interests.
Section 65DAA requires the Court, when making a parenting order that provides that a child’s parents should have equal shared parental responsibility for the child, to consider whether the child spending equal time with each parent would be:
a)in the child’s best interests; and
b)reasonably practicable.
If the Court does not make an order that provides that a child should spend equal time with each parent, then the Court must consider whether the child spending substantial and significant time with each parent would be:
a)in the child’s best interests; and
b)reasonably practicable.
All of those matters have been considered.
Conclusions
The hearing has taken place in the unusual circumstances of the Father, who has been active litigant in these proceedings since the Mother brought her Application in May 2010, made the abrupt decisions:
a)to return the two children to the care of their mother;
b)not to attend the interviews with the Family Consultant for the preparation of the Family Report; and
c)not to attend the final hearing.
Those decisions were made in circumstances where the children had been primarily in his care since 1st July 2011 as a result of interim orders made by this Court. The account given to the Court is that the Father handed a bag of the children’s clothes to the Mother on 11th May and told her not to bring the children back. The evidence before the Court is that the Father had not spent time with the children since then, although his wife had spoken to them on the telephone.
The Father has not taken any steps to place his version of the events before the Court, although he has had ample opportunity to do so. He may well have decided that the children really wanted to live with their mother, as they told the Family Consultant, but the method he chose to bring that about can only be described as petulant and insensitive.
It is hardly surprising the children were puzzled and confused by their father’s abrupt decision. It is hard to disagree with the opinion of Ms S that the Father’s actions on that day appear to have been “emotionally rejecting and potentially confusing and anxiety-provoking for the children”.[16]
[16] Family Report [41]
The Mother has submitted a Minute containing 24 proposed Orders. The Independent Children’s Lawyer has also submitted a Minute containing 25 proposed Orders, one of which is an order for costs. The Father, who has not participated in the final hearing, has not filed a document seeking any Orders since his Response filed on 11th January 2012. The orders sought in the Response seem to have been overtaken by events.
The Mother and the Independent Children’s Lawyer are in agreement that the children should live with the Mother. The Father has not attended Court to seek a final order that the children should live with him. In fact, he has already taken matters into his own hands by returning the children to the care of their mother, notwithstanding a Court Order to the contrary.
The Mother and the ICL differ in that the Mother seeks an order that she should have sole parental responsibility for the children, whilst the ICL suggests that the Court should make an order that the parents should have equal shared parental responsibility for the long term care, welfare and development of the children.
It was submitted on behalf of the Independent Children’s Lawyer that the parents had had equal shared parental responsibility for a number of years and that this state of affairs should continue. The Court should have regard to the past behaviour of the Mother, who has acted impulsively on occasions, including her decision to relocate herself to the Northern Territory for vocational training, leaving the children in the care of her parents. If the Court were to grant sole parental responsibility to the Mother, it was submitted, the children would be exposed to further impulsive actions by their mother.
This submission, with respect, ignores the fact that the Father has acted impulsively himself, in his abrupt and high-handed actions in returning the children to the Mother, contrary to the existing court orders, and his very absence from the Courtroom.
The Court would normally apply the presumption that it would be in the children’s best interests for their parents to have equal shared parental responsibility for them, but the Father’s precipitate and insensitive actions in returning the children to the Mother and opting out of the proceedings completely cast a serious doubt on this question. The evidence is that the Father has not spent time with the children since 11th May. How can the Court have confidence that, in the current circumstances, the Father can or will exercise joint parental responsibility with the Mother?
I am not satisfied that it is in the children’s best interests for their parents to have equal shared parental responsibility for them, given the Father’s apparent attitude at present.
Accordingly, an order will be made that the Mother is to have sole parental responsibility for the children.
As a result, the question of equal time with each of the children’s parents does not need to be considered. In any event, it would not appear to be either in the children’s best interests or reasonably practicable.
However, the question of the Father’s time with the children still needs to be considered, as it is to be hoped that he will change what appears to be his current attitude and resume spending time with his children.
Notwithstanding the Father’s decision not to participate in the proceedings, the Court must decide the parenting Orders to be made by placing the best interests of the children as the paramount consideration.
There has, until recently, been an understanding that it is to the benefit of the children that they should have a meaningful relationship with each of their parents. The evidence from the Family Report is that the children want to have a continuing relationship with their father, and with his current wife Ms G and young A.
The Court must consider the need to protect the children from physical or psychological harm by being exposed to, or subjected to, abuse, neglect or family violence. This consideration must be given greater weight than the matters set out in paragraph 60CC(2)(a), (see subsection 60CC(2A)). The Mother has made allegations about violence directed towards Y and abuse of the girls by the Father, and there were Apprehended Violence proceedings commenced by the Police. An application was to be heard in the Local Court. However, the Family Report shows the children as exhibiting no fear of their father whatsoever and seeming puzzled and surprised at being asked about the Father’s behaviour by the Family Consultant.
In the light of this evidence, it would appear that the most appropriate course is to make an order restraining the parties from using any physical force or chastisement on the children.
The children have expressed very forthright views to the Family Consultant, as set out in the Family Report. They appear to be of an age and a level of maturity where the Court would give those views significant weight.
Even though their father had acted in high-handed manner and made the decision to hand the children back to the Mother, which caused the children to be puzzled and confused, they still spoke of their father in positive terms and wanted to spend time with him. They made it clear that they would prefer to live with their mother, but they were in no way critical of their father, far from it, in fact, describing him as “really nice”[17].
[17] Family Report [30]
The children have a strong attachment to their half-brother, A. They made a point of stating how well Ms G treats them, and they appeared to the Family Consultant to think very highly of her.
The Court must consider the views of the children. They appear to be of sufficient age and maturity for their views to be given significant weight. They made it clear that they prefer to live with their mother but they do not have any negative views about their father’s household. They were happy to spend three weekends out of five with him, as they had before.
The children appear to have strong and significant attachments to each of their parents. They also enjoy spending time with their stepmother and half-brother. The children were observed by the Family Consultant in the presence of their mother and her partner, Mr P. The Family Consultant stated:
The atmosphere between them was warm and companionable.[18]
[18] Ibid [36]
Paragraph 60CC(3)(c) refers to the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues relating to the children, to spend time with the children and to communicate with them. The Father, by declining to participate in the assessment for the Family Report and by choosing not to attend Court, has clearly failed to take the opportunity to participate in making decisions about major long-term issues relating to the children. The evidence before the Court also shows that he had not spent time with the children or communicated with them for about two months.
The Mother is currently the children’s primary caregiver and she is making decisions about such long term issues as the children’s schooling.
There is no evidence about the failure of either parent to maintain the children, other than the Mother’s contention that the Father ceased paying child support in or about October 2010, as he was no longer working.
The children have had several changes of circumstances over the past couple of years. They have recently gone from living with their father back to living with their mother as a result of their father’s decision. He had not communicated with them, although his current wife had. This has been destabilising for the children, who have had to change schools and become used to a new locality. The evidence is that they are missing their father, their stepmother and their half-brother. They need stability and continuity in their lives.
The Mother now lives in the (omitted) and the Father lives in the Sydney metropolitan area. The distance between the parties’ homes will require some travelling time but does not pose insuperable difficulties in the children spending time with their father and his family.
Both parents appear to have the capacity to meet the children’s physical and intellectual needs. Ms S commented in the Family Report that:
Some of Ms Herman’s comments about Mr Dennis’ care seemed critical and undermining. For example, her concerns about supervision did not seem supported by the examples given. The children’s staunch insistence that they have no objections to being in their father’s home also raised questions about the seriousness of Ms Herman’s concerns.[19]
[19] Family Report [40]
The Father’s precipitate actions in handing the children back to their mother in May, followed by his decision not to participate in the final hearing and his apparent failure to communicate with the children over the ensuing weeks raise a concern about his ability to perceive and consider the children’s emotional needs. The likely confusion felt by the children and the possibility that they will feel rejected by their father is concerning.
The Family Consultant recommended that both children would be likely to benefit from seeing a child, adolescent and family professional to allow them to express their views and feelings about the current and past changes is worthy of serious consideration.
As has been previously mentioned, there are two children, both girls. Their dates of birth are (omitted) 1999 and (omitted) 2001, making them 13 and 11 years old respectively. They are from mainstream Australian culture and there are no special or unusual factors that need to be considered.
The parties’ attitude to the children and the responsibilities of parenthood has already been discussed, as has the issue of family violence.
It would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children. The parties have been involved in litigation about their children for a number of years. It would not be in the children’s best interests for the litigation to recommence except to meet some pressing and unforeseen situation.
It is in the children’s best interests that they have some stability in their lives. They should live with their mother and spend time with their father. It would cause them distress if they were not see their father , his wife and their half-brother on a regular basis, and orders will be made to allow that to happen. What the Court cannot do is to make the Father spend time with his children; it is up to him to do that.
Costs of the Independent Children’s Lawyer
In a Minute of Order handed up in Court on the second day of the hearing, the Independent Children’s Lawyer seeks an Order that each party pay the sum of $5,950.00 towards the Independent Children’s Lawyer’s costs. Whilst the application for costs is in time, the Respondent father has had no knowledge of it at all, as he did not attend Court. Consequently, it would not afford him procedural fairness if the Court were to proceed to hear an application for costs against him in his absence. If the Independent Children’s Lawyer wishes an order for costs to be made against the Father, arrangements will need to be made for an Application and any supporting document to be served on him.
The Mother is aware of the application for costs. Her counsel submitted that she opposes the Order, as it would be likely to cause her financial hardship. The Mother is not legally aided. She has had to incur legal costs and other expenses in respect of these proceedings.
The Mother’s counsel tendered without objection a document headed “Mother’s Finances”, in which she set out her current income, assets and liabilities, as well as a chronology of relevant financial events. It is noteworthy that the document refers to the fact that the father ceased paying child support in or about October 2010.
In considering what, if any, order for costs should be made under subsection 117(2) of the Act, the Court must have regard to the matters set out in subsection 117(2A).
There is evidence of the Mother’s financial situation, which shows that she is in strained financial circumstances. The Mother is not in receipt of assistance by way of legal aid. These proceedings do not concern a failure by a party to comply with a previous order of the Court, although there is an incomplete contravention application by the Father still in the list. As he has chosen not to participate in the proceedings, that application is deemed to be abandoned and will be dismissed.
The Mother has been successful in her application. There is no evidence of any written offer of settlement. To a great extent, these particular matters are not directly relevant to the question of costs of the Independent Children’s lawyer. The Court should have regard to the provisions of subsections (3), (4) and (5) of s. 117, which relate specifically to costs of the Independent Children’s Lawyer.
One matter that is relevant, however, is the conduct of the parties to the proceedings in relation to the proceedings, as provided by paragraph 117(2A)(c). It is disappointing that the proceedings managed to extend into a second day, when it was known to the Independent Children’s Lawyer that the Respondent Father had said that he would not attend Court or participate in any way in the proceedings.
It should have come as no surprise to the Independent Children’s Lawyer that the Father was not present on the first day of the hearing. Counsel for the ICL was initially unprepared to proceed with the hearing and suggested that the matter should be adjourned to await the outcome of the forthcoming apprehended violence proceedings in the Local Court. This was strongly opposed by counsel for the Mother as not being in the children’s best interests.
After counsel for the Independent Children’s Lawyer advised the Court that the Father had told the Independent Children’s Lawyer over the telephone that he would not be attending, I asked if the Independent Children’s Lawyer could give that evidence from the witness box. This seemed to be a simple request, but counsel sought a short adjournment to obtain instructions, and needed extra time. It took well over 20 minutes to obtain instructions about something that should have been dealt with in the witness box in less than five minutes.
Counsel for the Independent Children’s Lawyer did not produce a case outline to the Court until the afternoon of the first day and did not produce a Minute of Proposed Orders, about a situation of which the ICL was well aware days beforehand, until the following morning.
Counsel for the Independent Children’s Lawyer insisted on calling the Regulation 7 Family Consultant to give evidence about what the Court should do, which led to further delay. This was opposed by counsel for the Mother, unsurprisingly.
What should have been a half day proceeding extended into its second day, which led to a direction by the Court that the proceedings had to be completed by 11:30am. In my view, the proceedings were unnecessarily drawn out by the Independent Children’s Lawyer, who seemed unprepared to meet a situation that the parties well knew, that the Father was not attending and would not seek any orders.
In my view, this apparent indecision and unpreparedness on the part of the Independent Children’s Lawyer unnecessarily prolonged the proceedings. This will be reflected in the costs order to be made.
Taking all these matters into account, an order will be made requiring the mother to pay the sum of $4,500.00 towards the costs of the Independent Children’s Lawyer. It would cause the Mother considerable hardship if she were not given a lengthy period of time to pay. The Mother will be allowed nine months to pay the costs.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 13 September 2012
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