Jacobs and Sitch

[2015] FamCA 1229

FAMILY COURT OF AUSTRALIA

JACOBS & SITCH [2015] FamCA 1229

FAMILY LAW – CHILDREN – INTERIM ORDERS

APPLICANT: Mr Jacobs

RESPONDENT: Ms Sitch

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

FILE NUMBER: MLC 10230 of 2009

DATE DELIVERED: 13 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Weerappah

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN”S LAWYER	Mr Eidelson
SOLICITOR FOR THE INDEPENDENT CHILDREN”S LAWYER	McKean Park Lawyers

Orders

The orders in the matter of Jacobs & Sitch are:

1.I grant leave to the wife to make oral application for interim orders conferring upon her sole responsibility to make major long term decisions in relation to the health and education of the child X born … (“the child”).

2.Until further order, the mother have sole responsibility for major long term decisions in relation to health and education for the child X born … 2004.

3.For the avoidance of doubt, the extant parenting orders for time spent being paragraph 1(b) of the Order made on 17 December 2014 and varied pursuant to paragraph 1 of the Order made on 13 February 2015 continue in full force and effect so that the child spend time with the father:-

a)      each alternate Saturday from 9.00 am to 5.00 pm on an unsupervised basis and in the absence of the father’s partner, Ms J; and

b)      at any other times as agreed between the parents in writing.

4.I reserve liberty to apply to the father to seek orders varying or discharging this Order or as he may be advised.

5.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and distributed to the parties.

6.This proceedings be otherwise struck out and removed from the pending cases list maintained by the Court.

7.In the event that the father makes application to the Court for a reinstatement of the parenting proceedings, or other parenting orders, that application be listed before me promptly in the event that I am reasonably available.

8.The order for the appointment of the independent children’s lawyer be and is hereby discharged.

9.That pursuant to Sections 65DA(2) and 62B the particulars and 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 the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

10.That the email communication received by the Court from the father and dated 12 August 2015 be marked Exhibit “A” and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Sitch 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 MELBOURNE

FILE NUMBER: MLC 10230 of 2009

Mr Jacobs

Applicant

And

Ms Sitch

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me for mention, having been referred by the Senior Registrar on 22 June 2015. The proceedings concern the child X, who is 11 years old, and for much of his life has been the subject of proceedings in the Family Court concerning parenting arrangements. The matter was transferred by the Senior Registrar following a transfer to this court from the Federal Circuit Court, where parenting issues were contested and determined and then rested with the final parenting orders of Lucev J made on 7 March 2013, following a hearing of five days in August and September 2013.

2. Subsequently, there were contravention proceedings, also determined by Lucev J. Those were proceedings in which the father had alleged that the mother had failed, without reasonable excuse, to comply with orders to spend time with the child. They were determined by Lucev J and are the subject of reasons for decision delivered in August 2014. There has been a determination in relation to costs and an appeal.  I do not think the costs issue is currently a live issue.

3. The parenting proceedings entitled the child to spend alternate weekends and half school holidays and special days with the father. It appears that largely as a result of protective concerns about the exposure of the child to attitudes of the father and the father’s partner, Ms J, that the father now spends time with the child which is only a fraction of what was ordered by Lucev J in March 2014. At the moment, the father is spending time with the child each second weekend from 9 am to 5 pm, and he is not permitted to bring the child into contact with his partner, Ms J.

4. Today, the mother attends court, as does her solicitor, Mr Weerappah, and the independent children’s lawyer has retained Mr Eidelson of counsel. Mr Eidelson of counsel also appeared before Lucev J in the parenting proceedings.  There is no appearance by or on behalf of the husband. Yesterday, an email was received by the Court from the husband at 11.04 am, and it reads, “I write to inform the court that I will be attending a mentions hearing for this matter … set down for tomorrow before Bennett J, due to emotional trauma”. There then follows the father’s name, a mobile telephone number, and an email address.

5. I have not caused any calls to be placed to the father to chase his attendance today. The father, as a self-represented litigant, should know about the possibility of seeking to attend by electronic means, but it appears from what he says it is not a matter of location or distance which is preventing his attendance today, rather it is “emotional trauma”. 

6. The proceedings are very troubling. There has been a long period in which the mother has made allegations against the father of sexual impropriety in relation to the child.

7. On my reading of the documents on the court file, which I stress are by no means all the documents on the court file, it appears that those allegations have been without foundation, and for some time were not reasonably held by the mother. Her solicitor today says that she is now over those allegations, and does not press them. I could only say that if that is true, it is for the benefit of the child. He has not been served well by her adherence to the allegations in the past.

8. The father has been in a relationship with Ms J for about four years. After the parenting determination by Lucev J in March 2014, the father’s partner wrote a series of emails to most everyone she could possibly send emails to, including the judge, the judge’s associate, the independent children’s lawyer, and the mother. Most of which were inappropriate; all of which referred to her disillusionment, disappointment, and disgust with the final resolution of the matter, which in her eyes was that the mother had made frightful allegations against the father of sexual impropriety, none of which had been proved, yet still had managed to retain primary residence of the child. Further, that at that stage the mother had not disavowed the allegations that she had made against the father.

9. To my mind, a poorly-behaved litigant or a poorly-behaved agent of a litigant does not necessarily make a poor father or a poor parent. How people act in court and in proceedings does not necessarily reflect how they act and can relate to, and what benefits they can bring to a child by way of having an ongoing and meaningful relationship. It is a fine distinction, and one which has to be examined on a case-by-case basis. What makes this case difficult is that the father has decided not to attend today, in circumstances which leave me with the impression that he is withdrawing somewhat from the proceedings, rather than just not attending on this particular day. I may be wrong.

10. In the case that I may be wrong, the orders that I will make today will be perfectly capable of being reversed in the event that the father does make application in a reasoned and deliberate manner, and attends court to prosecute it. I consider it would be in the interests of the child for the proceedings then to go back on track. However, absent the father wishing to participate, I am overwhelmingly convinced that further proceedings in this court and further assessments of the child are not going to be in the child’s best interests, either in the immediate or short-term, and probably even in the long-term.

11. Whereas the court will take application from the father, and I would have considered favourably any application for priority he sought to press today, these are things that I am not going to do in a vacuum. It is a court of private law, and it takes at least two parents to bring a parenting dispute before this court and to prosecute it responsibly. I certainly hope that the father continues to see the child each second Saturday between 9 am and 5 pm. 

12. It would probably be good if it was for a longer period, but there is the difficulty at the moment of the child being brought into contact with Ms J. There is an intervention order under state family violence legislation which precludes that occurring. One of the matters that the Senior Registrar referred to when sending the matter to me for mention was that Ms J and the father had either discussed or were attending upon a counsellor from whom they would be in a position to adduce evidence that the concerns which Ms J’s emails gave rise to could be assuaged.

13. There is no sign of that counsellor’s report at the moment. In the event that the father does wish to participate in proceedings in this court, he should make application explaining his absence today, identifying the orders he does in fact seek, and addressing directly how the child can be protected from any risk of emotional harm posed by the attitude of his partner, Ms J, to the mother, the courts, the experts, and the independent children’s lawyer, and, of course, very significantly, to the child himself.

14. I will be making an order that the matter be removed from the pending cases list, into which it will be reinstated if and when one of the parties makes a parenting application. That parenting application can come before me. 

15. As the proceedings may now, in a de facto sense, be finalised, counsel for the mother seeks to tie up all ends. He sought leave to make an oral application that his client have sole parental responsibility in relation to the child. That would mean that the mother would have sole power to make major, long-term decisions affecting the child, including matters to do with his education, health, his name, and where he lives generally. That application is not an application that she has made previously. It is not an application of which the father has any notice today. It goes without saying that it is not within the contemplation of the father that such an order would be made today. In those circumstances, I refuse to grant leave for an oral application to be made in relation to sole parental responsibility.

16. There is, however, some sense in not requiring the mother and father to come back to court unless they particularly need to. There is a great deal of evidence before the court and, indeed, findings which satisfy me that the parents are unable to communicate with one another. It appears that they would, therefore, be unable to work together in the way that parties who share parental responsibility are supposed to work and, indeed, must work in order to bring up their child adequately. Mr Eidelson for the independent children's lawyer submitted that, in his view, it would be impossible for these parents to work together to share parental responsibility in any real sense. 

17. I am convinced that there is some merit in the mother being able to go about the business of obtaining necessary medical treatment or counselling for the child and to be able to enrol him in educational institutions without having to seek out the father and try to procure his cooperation as she would be bound to do in the event that they shared parental responsibility. At the moment, they do share parental responsibility as a result of Lucev J’s orders. Were it not for those orders, they would each have parental responsibility independently of the other and the mother could conceivably operate on that basis but, at the moment, there is an order by Judge Lucev for shared parental responsibility.

18. In the circumstances, I will grant leave to the mother to make an oral application for an interim order conferring upon her sole responsibility to make major long-term decisions in relation to the child’s health and education. That will enable her to function appropriately and in his best interests.

19. This is also an order which can be disturbed by an application made by the father in an appropriate form and appropriately prosecuted, in the event that I consider it is in the child’s best interests. Therefore, I am not locking the father out by this order. I am trying to empower the mother to be able to work effectively to parent the child.

20. As with any parenting order made by this court, it is the child’s interests which are the paramount consideration.  I take into account the need to protect the child from emotional and physical harm. In this case, the harm is undoubtedly emotional. Historically it has stemmed from the mother’s allegations in relation to sexual impropriety which were levelled at the father and found not to be substantiated. More recently there has been emotional harm as a result of the imprudent email communications by the father’s partner. 

21. I take into account the benefit to the child of having a meaningful relationship with both parents which obviously includes the father. What I have read indicates that the child should be seeing more of the father than he is currently. However, into that equation I would be having regard to the father as a fully functioning, compassionate and empathetic parent. If it is the case that the father is overborne by his partner, Ms J, or decided to follow and support her rather than to maintain a relationship with his son, then that would say volumes about his parental capacity which, in turn, would impact significantly upon the benefit which I would determine there is for the child to be seeing his father on an ongoing basis.

22. As to the additional considerations, I have no doubt that the child would like to see more of his father than he is at the moment. I do not see a way forward if his father has not bothered to come to court today and does not in the future, however, if the father does, then the situation might change. 

23. More than anything my impression is that the child wants to feel permission from both parents and their agents that he can love and have regard to them as well as to the other parent. In other words, the child’s view would be that, when spending time with his father, he does not want to be troubled by the negative attitudes of the father’s partner towards his mother and other people in his life. Likewise, when the child is with his mother, he would like to be able to feel that he can love and have regard to his father without upsetting her, or exciting in her what appear to have been inappropriate concerns about sexual misconduct.

24. The orders that I will now leave in place do not represent a significant change for the child. They are, in fact, probably the least worse result at this stage in relation to ongoing time, although, if the matter were before the court again, there is obviously evidence at the moment which would support the father seeing more of the child, providing the child can be safe from adverse emotional impacts.

25. I am satisfied that the orders that I now make are in the child’s best interests.  As I am making interim parenting orders within a very narrow ambit, it is not appropriate, nor necessary, in my view, for me to consider a substantial or significant care or shared care arrangement and I do not do so.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 August 2015

Legal Associate: 

Date:  29 March 2016