Hocking and Fisk
[2017] FCCA 3226
•22 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOCKING & FISK | [2017] FCCA 3226 |
| Catchwords: FAMILY LAW – Parenting – undefended hearing. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: Banks & Banks (2015) FLC 93-637 Goode v Goode (2007) 36 FamLR 422 |
| Applicant: | MR HOCKING |
| Respondent: | MS FISK |
| File Number: | PAC 4654 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2017 |
REPRESENTATION
| Appearing for the Applicant: | Mr Frost |
| Solicitors for the Applicant: | Horizons Family Law Centre Pty Ltd |
| Appearing for the Respondent: | No appearance |
ORDERS
The father have sole parental responsibility for X born (omitted) 2008 and Y born (omitted) 2011.
The children live with the father.
The children shall spend time with the mother as agreed in writing between the parents.
Each parent is to permit and assist the children to contact the other parent by telephone at any time the children express a wish to speak with the other parent.
The father is permitted to travel with the children or either of them outside of the Commonwealth of Australia provided he gives 28 days’ prior written notice to the mother.
Until further order, or else subject to the authenticated consent of the father, Mr Hocking, the mother, Ms Fisk born (omitted) 1979 her servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children X born (omitted) 2008 and Y born (omitted) 2011 from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with consent of the father.
Each parent is to keep the other informed of:
(a)Their residential address;
(b)Their mobile telephone number;
(c)A contact email address;
(d)Any significant injury or illness suffered by the children and details of all medical treatment given to the children; and
(e)All school, extra-curricular and sporting activities in which the children are involved.
The parents are to communicate about matters referred to in the preceding order, and/or any other matters relating to the children, by text message or email between the mother and the mother.
The mother is restrained by injunction from attending at or going within 500 metres of the children’s school.
Each parent is restrained by injunction from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of the children and both parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Hocking & Fisk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4654 of 2013
| MR HOCKING |
Applicant
And
| MS FISK |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant father and the Respondent mother in relation to the parties’ two children.
The final hearing, which occurred on 27 October 2017, was undefended, with the mother not taking part in the proceedings, that is, she had not filed any material nor did she appear.
The father was born on (omitted) 1976.
The mother was born on (omitted) 1979.
The parties were married on (omitted) 2006.
Their first child X, was born on (omitted) 2008.
Their second child Y, was born on (omitted) 2011.
In August 2012, the parties separated.
Between August 2012 and September 2013, the children lived with the mother but spent time with the father on a regular basis, with the father usually visiting them at the mother’s home during the week and having them each Saturday and Sunday from about 9am to about 4pm or 5pm in the afternoon.
In August 2013, the mother telephoned the father and said: “Do you want your kids back? Come and get the kids… Let them live with you.” The father went to collect the children on the day nominated, but when he arrived the mother said “No, I’m not giving them to you.”
From early September 2013 and for a period of approximately six weeks, the father did not spend any time with the children. This was due to the mother’s refusal for such time to occur, on the basis that the father’s family was interfering with her internet accounts.
In about mid October 2013, the children’s time with the father resumed pursuant to the arrangement that had been in existence previously. That is, the children were spending time with the father on a regular and almost daily basis at the mother’s home and every weekend from after school on Friday until Sunday afternoon at the father’s home.
The parties were divorced on 13 January 2014.
In March 2014, the parties attended mediation and agreed to a parenting plan which they signed. The children’s time with the father, pursuant to the parenting plan, now became each alternate weekend.
In about September to October 2014, the mother again, unilaterally stopped the children’s time with the father. When he asked her why, the mother answered “Because I can. Go to court if you want to see them.”
From November 2014 the children’s time with the father resumed, and they spent each alternate weekend with him until about July 2015. At that time, the mother alleged that the father’s family was hacking into her internet and Facebook accounts and for that reason stopped the children’s time for another four weeks. Time resumed between the children and the father in August 2015, namely, each alternate weekend.
In January 2016, the father sought to have a further mediation with the mother. The parties both completed the “Parenting after Separation” and “Kids in Focus” courses in early 2016.
Again, in August 2016, the mother put a stop to the father’s overnight time with the children for a period of four weeks. When asked why, the mother responded to the father “Go to court, go to court.” The father continued to spend time with the children at the mother’s home or in the park. When he did so, the mother filmed him with the children.
In September 2016, the mother would only allow the children to speak to the father through her front security door; this went on for about two weeks. She then stopped time and communication between the children and the father altogether. In about mid-September, when the father was at the mother’s home the census official arrived and the mother opened the door. The children ran out to the father and spent some time talking to him on the footpath in front of the mother’s house.
On 23 September 2016, the father was issued with a section 60I certificate.
The children’s time with the father was subsequently limited by the mother to occasions when the father made efforts to see the children on the way home from school, and occasionally saw them and spent time with them at the park.
On 4 November 2016, the father again saw the children on the way on from school. On that day X said to the father “Mummy isn’t allowed at school anymore. She has been getting into fights with other parents and filming them when they come to pick up their kids.”
As a result of what X said to him, the father telephoned the children’s school and spoke to the Principal, who said to him “I can’t tell you the details, but I have banned Ms Fisk from coming onto the school grounds.”
On 30 November 2016, the father filed his Initiating Application. After a number of Court events and orders, the father’s interim application was heard on 26 April 2017, and orders for the children to spend time with him were made on an undefended basis.
On 28 April 2017, the father attended the mother’s home to pick the children up for the purposes of spending time with them in accordance with the interim orders made on 26 April 2017. Upon arrival, the father showed the mother a copy of the orders to which the mother replied “They’re not real, they’re not from the government. You can’t take the children.” The mother refused to permit the children to spend time with the father.
After having his solicitors write a letter to the mother to notify her that the father would be spending time with the children in accordance with the Orders from after school on Friday, the father attended the mother’s home on 5 May 2017 to collect the children. When he knocked on the door the mother answered and he asked if he could take the children. Y ran out but the mother refused to allow X to go to her father. The mother refused to allow the father to take X, so the father asked Y to get out of his car and consequently neither child spent time with the father on that occasion.
Thereafter, the father continued to attend the mother’s home for the purpose of attempting to spend time with the children. It appears however, that the times at which the father attended were not always in accordance with the Orders. The mother would not allow him to take the children past the front gate, and consequently the father would stay in the yard for about 20 to 30 minutes, playing and talking to the children.
On 2 June 2017 the children spent the weekend with the father. It seems that the father had told the children that when they saw him on Friday after school, on their way home, they should come to him, which is what occurred. When the father returned the children on Sunday night, he found a rugby league jersey he had purchased for Y on the mother’s driveway, cut in half.
On 8 June 2017, the Principal of (omitted) School where the children attend, called the father and informed him as follows:
There has been an incident. The kids are fine, but Ms Fisk has been taken away.
Upon attending the school to collect the children, the father was told:
There has been a physical altercation between Ms Fisk and another parent. Ms Fisk was so aggressive towards the staff members who tried to calm her down. The police were called and Ms Fisk tried to resist arrest. She’s been arrested and is now in police custody. Don’t’ bring the children to school tomorrow. Just let them calm down.
That afternoon, the children went home from school with the father and have been living with him since.
The following day the father spoke to the Principal who said:
Don’t bring the children back next week until we know what’s going on with Ms Fisk. I’m worried about her coming to the school again. The children may need to change schools. You should talk to your lawyer.
On 12 June 2017, (omitted) Police telephoned the father and told him that the mother was in custody and that the police had concerns about her mental health.
The following day the father was advised by the children’s Principal that the mother had been banned from school grounds and that the school had cause to call the police on previous occasions due to the mother’s behaviour. The father was told that the children could return to school if the father wanted them to remain there, but that the school would act appropriately if the mother attended the school again.
That same day, X told the father that she was embarrassed by the way that her mother had acted. She also said “All my friends saw what mum did. What will the teachers think of me?”
On 14 June 2017, the children returned to school. That same day the father received a call from (omitted) Correctional Facility. He was told that the mother was being held there and that she was being uncooperative. The mother was then put on the phone and spoke to the father. The father says that because she was yelling at him, he hung up the phone. On 15 June 2017, the mother telephoned the father to speak to the children. The father facilitated such communication.
The following day, the father attended (omitted) gaol to collect the mother’s house keys and paperwork. He then learnt that the mother had been charged with three counts of assault and one count of unlawful entry. The father attended the mother’s home with the children and collected their belongings, and some items which the mother had requested.
On 20 June 2017, the father received a call from (omitted) Hospital and was told that the mother had been admitted. The mother then spoke to the father on the phone; however, his impression was that she was crying and that she did not seem lucid. On the following day the mother again telephoned the father. She still seemed very upset and confused.
On 4 July 2017, the Court heard on an urgent basis a further interim application by the father for the children to live with him. Such orders were made and the father was also granted sole parental responsibility on an interim basis.
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of the proceedings.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
Parental Responsibility
The mother has not taken part in these proceedings. On the father’s unchallenged evidence, the Court finds that the presumption of equal shared parental responsibility has been rebutted. Such a finding is made on the basis of the children’s best interest. The mother has not acted appropriately at the children’s schools, she has placed the children at risk of harm, and her circumstances appear to be of some difficulty at present. She has, in the past, acted unilaterally in restricting the children’s time with the father, without any reasonably objective basis for doing so. Given the mother’s actions at the children’s school the Court is sufficiently concerned about the mother’s reported behaviour that it finds it unlikely that the mother will be able to effectively communicate with the school in relation to the children’s education.
Best Interest Considerations
The father’s evidence is completely unchallenged.
The primary issue for the Court is to ensure that these two children are capably looked after and not placed in harm’s way. The mother does not appear to be a functioning parent, and for that reason, her actions in not only retaining the children in the manner she has done over the years without permitting them to spend reasonable time with the father, but also her bizarre statements about her internet accounts being hacked and her outrageous behaviour at the children’s school, at present speak against her ability to meet the children’s needs. It also speaks strongly of the need to protect the children from harm, particularly psychological harm but also potentially physical harm.
The orders which the father asks the Court to make may not necessarily result in circumstances where there is no future litigation. However, the Court considers that where the mother has had opportunity of joining in the proceedings and has not done so to date, for over 11 months while the proceedings were on foot, leaving the children’s living arrangements in a state of uncertainty is not in their best interest. The children need to know that they are safe and that their welfare is being looked after.
The father does not propose that the children do not spend time with the mother. Rather he proposes that the children spend time with the mother as agreed between the parents in writing. There is no evidence to suggest that the father would not facilitate time between the children and the mother. Indeed, it is the Court’s impression of the father that he is a person who is compliant with orders. He has shown extraordinary patience and respect in the way he conducted himself every time he appeared in Court, particularly on the occasions he was unrepresented.
From the father’s evidence the children appear to have a reasonably established relationship with him. They certainly seem to love and care for him, and he for them. The children will be living together and while the turmoil of their mother’s apparent illness is something they will have to learn to deal with, they will have their father, each other and a secure home. They will also remain at their current school and this ensures significant stability for them.
Conclusion
In all of the circumstances the Court finds that orders as set out at the forefront of these Reasons are orders in the children’s best interest.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 22 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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