Hilfert and Blumfield

[2013] FamCA 1160

FAMILY COURT OF AUSTRALIA

HILFERT & BLUMFIELD [2013] FamCA 1160

FAMILY LAW – CHILDREN – Interim orders – child to live with the mother and the mother to have sole parental responsibility after the father removed the child from the mother’s care and refused to return her.

APPLICANT: Mr Hilfert

RESPONDENT: Ms Blumfield

FILE NUMBER: CAC 1508 of 2013

DATE DELIVERED: 1 October 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 1 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hilfert represented himself

COUNSEL FOR THE RESPONDENT: Ms Burgess

SOLICITOR FOR THE RESPONDENT: Legal Aid ACT

IT IS ORDERED THAT:

1. L (“the child”), born on … 2012, will live with her mother.

2. Her mother will have sole parental responsibility for her.

3. a.   The child will spend time with her father on every second weekend from 11am until 2 pm on each of the Saturday and Sunday of that weekend, and in addition will spend every Wednesday between 4:30 pm and 8 pm with her father. 

   b.    In the case of the midweek time that the child spends with her father, her father will pick her up from her mother’s place and return her to her mother’s place.  In so far as the time that is being spent on the weekends is concerned, her mother will deliver her to the father at McDonald’s at Suburb D and the father will return her to the mother at McDonald’s at Suburb D at the end of the time that she spends with him. 

4. Each of the parties will undertake the intake program for the program known as ARCK – Assisting Responsible Care for Kids.

5. Notwithstanding the Order made above about the mother having sole parental responsibility, the mother will continue to keep the father informed of any medical issues relating to the child and will authorise and direct any medical practitioner or like practitioner upon whom the child should attend to provide information to the father upon his request and at his expense.

6. The mother will keep the father informed of any major issues in the child’s life.

7. The arrangements about the father spending time with the child on 23 November 2013 are suspended to enable the mother to be interstate for the weekend and the time that the child spends with her father in respect to that weekend will occur on the preceding weekend that is 16 November 2013, unless the parties otherwise agree.  The time that she then spends again with her father will be on 30 November 2013.

8. The matter is adjourned, for further determination and for directions as to trial, to 10 am on 31 January 2014, the parties and their lawyers are required to attend on that day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hilfert & Blumfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1508 of 2013

Mr Hilfert

Applicant

And

Ms Blumfield

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court have come on at short notice and deal primarily with what interim orders should be made about the arrangements for where L (“the child”) will live. 

2. The child was born in 2012 and was primarily living with her mother.  The relationship which gave rise to her birth had terminated some time previously and her conception was the result of an occasional meeting between her parents.  For the first part of her life she lived primarily with her mother.  Subsequently, when her father’s accommodation became inadequate he was invited to live in the premises of Ms Blumfield’s mother and moved into a garage which was subsequently converted for his use.

3. That arrangement terminated earlier this year and the father has now moved in with his friend Ms S.  He, having considered his relationship with her since March of this year, has determined that this is a serious and permanent relationship and he lives with her and two of her children in Canberra. 

4. The matter giving rise to this court proceeding took place last weekend when the father (it is common ground) removed the child from her mother’s place.  There was some argument about the extent to which this was with the consent of the mother; but certainly the circumstances were such as to provoke, in the words of the Family Consultant, considerable distress in the child, even if that was not observed or appreciated by the father.

5. Since that time, he has refused to return the child and the police and the Director of Child and Family Services has been involved.  I should indicate that I make the report from the Department exhibit J1 in these proceedings.  The report from the Department indicates that they have no particular or present concerns about the removal of the child from both parents at the very least and they will remain, I suppose, a feature in these proceedings until they are finally completed. 

6. One obligation under the Family Law Act 1975 (Cth) (the Act) is to make orders which take as their paramount consideration the best interests of the child.  They are not orders which are to take account of what either parent may regard as what is fair, or even what is reasonable.  I am to put the best interests of the child as being my primary consideration. 

7. Ordinarily, the Act requires under s 65DA that I should operate from a presumption that it would be in the child’s best interests for there to be joint parental responsibility. That presumption may be rebutted by a number of matters, including issues as to violence and, more broadly, the best interests of the child.  It may also be rebutted, not quite axiomatically but certainly relatively routinely in interim matters.  This is one.

8. In this matter I do not regard the present arrangements as providing a sufficient justification for a rebuttal of the presumption on the grounds of violence. However, the relationship between the parents, even in the short time that I was able to observe in court today, is such, that in my opinion, it is inappropriate that there should be joint parental responsibility. In any event in these interim proceedings, given that the mother will be the primary carer for the child on any version of the material, it is appropriate that she should have sole parental authority.  The father concedes that it is appropriate that the child should live principally with her mother and given her age and the primary attachment, which I am satisfied exists with her mother, this is an appropriate thing to do.

9. In making any order about her, as I indicated, I am to take account of her best interests and in this regard the Act prescribes a number of factors that I have to take into account in coming to that conclusion.

10. The first of these is that I am to place, as the foremost consideration, the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

11. In this regard there are a number of submissions made to me by each of the parties about these matters.  The father has asserted, both in his questioning of the mother, directly in his affidavit, and to me, that the child is in some physical risk from her mother because, he asserts, that her mother smokes marijuana with her mother; and that the smoke is likely to affect the child.

12. In this regard I have listened carefully to the answers given by the mother and I am satisfied that there is no risk in this area - so far as the child is concerned.  I am concerned that the father apparently asked these questions when it is clear from the past he felt nothing was wrong with his smoking marijuana.  This might have affected the child as well.  I note no questions were directed by him in contradiction of the issues raised in this regard by the mother.

13. So far as her physical and psychological harm is concerned, I am deeply troubled by the fact that the father apparently saw no difficulty in his removal of the child in the circumstances that he did.  Even if I were to accept his evidence over the evidence of the mother in regard, his insensitivity to the distress he may have caused to the child is a matter of grave concern to me. I put it down at this point (in charity to the father) as his being worried about what was happening and wanting to ensure that he had a relationship with his daughter.

14. If he does not find a proper way to understand a little more about his daughter and what her needs are at her age then it is questionable, in my mind, that he is likely to provide her with a benefit from his relationship with her.  It is about time you stopped feeling sorry for yourself, Mr Hilfert, and got on with the business of accepting your responsibilities as a father.

15. So far as the other matters are concerned, the Act says that I am to take account (as a primary consideration of the benefit to the child) of her having a meaningful relationship with both of her parents.  In this regard, I note that both parents want to have a relationship with the child.  This is to their credit.  I note also that the father has expressed, in the strongest possible terms, his desire to be part of the child’s life and while I do not think that at this stage he has thought through the extent to which he is able to contribute to her wellbeing, I am sure that is what he wants to do.

16. I am satisfied further that the child’s mother has taken appropriate steps to carry out her stated intention of ensuring that the child does have a proper relationship with her father.

17. I am also to take account of a number of other factors and I mention some of them briefly.  The others are not matters which are relevant in these proceedings. 

18. I am satisfied that the primary relationship of the child is with her mother.  I am also satisfied, from the evidence (limited though it has been today), that she has a good relationship with her father.  It is important, in this context, that she continue to have those relationships.

19. There are other people in her life.  The extent of her relationship with them at this point I am unable to comment about, but they include the mother’s mother, the father’s mother, various relatives of both sides and the new partner of the father.

20. I am satisfied that the father, during the time that he was living in the same, or approximately in the same dwelling as the mother and the child, did not take all the opportunities he reasonably had to participate with the child and communicating with her.

21. However, I accept, at this point, that possibly this is attributable more to a lack of his understanding of his actions than to any particular intention on his part.

22. To the extent that there has been an opportunity for me to gauge it, the mother has carried out her obligations about the child.  In the father’s case, I am less satisfied given the events as they have unfolded today and over the last weekend.  The separation of the child from her mother, in the circumstances of the evidence from the family consultant, would have been difficult and distressing for the child.  This is notwithstanding what the father may say from the Bar Table, at least, about the way he has handled this separation.  That, in itself, is a factor which needs to be taken into account.

23. It is obvious that the arrangements that the mother proposes, which have, to some extent, received approval from the family consultant as to being appropriate for the child at her age and understanding, will enable the parties to provide the relationship between the child and her father that is appropriate.

24. I am not satisfied about the father’s capacity to provide for the emotional and (particularly) the intellectual needs, of the child at this point.  I propose to order the parents enrol for the ARCK program with Marymead in the hope that this will assist them to sort out some of the issues between them and put the child at the forefront of their concerns rather than simply their own interests.

25. I do not take account of issues of family violence at this point.  I am not satisfied about the extent to which they apply.  In saying that, I should indicate I am certainly not satisfied that during the period of the child’s life, the father has been intimidated by the mother.  I regard that proposition as laughable.

26. On the basis of all of those matters, it seems to me that the proposal by the father is, in the circumstances, inappropriate for the child, at her age, and the proposal of the mother is appropriate and I propose to make orders accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 1 October 2013.

Associate: 

Date:  26 March 2015