Jenkins and Cresswell
[2011] FMCAfam 173
•24 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JENKINS & CRESSWELL | [2011] FMCAfam 173 |
| FAMILY LAW – Parenting – undefended hearing – whether child should live with father and spend no time with the mother and not communicate with the mother – interim reversal of care after mother failed to attend court to answer contravention application – mother ceasing to participate in proceedings – orders sought by father supported by Independent Child's Lawyer. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424 |
| Applicant: | MR JENKINS |
| Respondent: | MS CRESSWELL |
| File Number: | PAC 954 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 24 February 2011 |
| Date of Last Submission: | 24 February 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 24 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Jenkins In Person |
| Counsel for the Respondent: | No Appearance |
ORDERS
All prior parenting orders in relation to the child [X] born in 1996 are discharged.
Orders are made in terms of paragraphs 2 and 3 of the final orders sought in the father’s amended application, filed on 22 November 2010.
The child shall spend no time with the mother and shall not communicate with the mother.
IT IS NOTED that publication of this judgment under the pseudonym Jenkins & Cresswell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 954 of 2007
| MR JENKINS |
Applicant
And
| MS CRESSWELL |
Respondent
REASONS FOR JUDGMENT
Today marks a further step on the long and tortuous path of these proceedings, which concern the care of a young child, [X], born in 1996. The parties to the proceedings are [X]’s parents. The matter is listed today for the hearing of the father’s application for final orders. I did not describe this as the final step in the long and tortuous path of these proceedings because I am not at all confident that it will be.
The orders that the father seeks are that all previous parenting orders be discharged in relation to the child, that the child live with him and that he have sole parental responsibility in relation to the child. He proposed no orders that the child spend time or communicate with the mother. That position was supported by the Independent Children’s Lawyer.
When I sought to clarify the position of the father as to whether it was the case that at this stage, because of uncertainty as to the mother’s position, she not participating in the proceedings, he was unable to frame orders that may facilitate a relationship between the daughter and her mother or whether it was the case that he was satisfied on the current evidence that there should not be any time spent or communication between the daughter and her mother, he said it was the latter. That position is supported by the Independent Children’s Lawyer. This is an extreme and fairly rarely taken step in orders under the Family Law Act and I need to consider it very carefully.
The matter is, as I mentioned, proceeding in the mother’s absence. As I have also mentioned, the proceedings have had a very long history in my list. The matter relevantly came into my list initially in relation to contravention proceedings brought by the father asserting that the mother with whom the child was then living under the then operative orders, was not making the child available to spend time with him in accordance with those orders. The mother then lived in New South Wales and the father lived in Queensland.
Although I was ultimately satisfied that the mother had been served with the father’s contravention application, the mother did not come to court and despite my adjourning the matter more than once to give her an opportunity to come, she still did not come. I ultimately formed the view that it was necessary to have her before the Court to properly deal with the matter as it was raised and I therefore issued a warrant for her arrest. She was duly arrested and taken to the nearby Local Court and bailed by that court to appear in this Court on the then next adjourned date. The mother still did not attend court. By then the father filed an application to reverse the care arrangements for this child and on 11 December 2009 I made orders, including a recovery order, to effect an interim reversal of the care of the child. I otherwise suspended the then existing parenting orders. The recovery order was executed and the child passed into the care of the father where she has remained ever since.
Since I reversed care of the child, the matter has continued on with the mother attending court on some occasions and on other occasions not. For some time after the child was removed from the mother's care she filed no documents in relation to the father’s application that the child lived permanently with him. On one occasion, 11 October 2010, the mother was represented at court by counsel. By then the mother had in fact filed some documents. The directions that I made on that occasion were that the mother was to serve sealed copies of her response and affidavit evidence filed on the 3 September 2010 on the father’s then solicitor and the Independent Children’s Lawyer within seven days. The matter was then adjourned until 15 November 2010.
On 15 November there was no appearance by or on behalf of the mother. On that occasion I directed that the father file a further amended application and any further affidavit evidence within seven days and ordered that it would be sufficient service on the mother if the father forwarded the documents to the mother by ordinary prepaid post care of [suburb omitted] Post Office and to a post office box in [suburb omitted]. There was at that stage according to the father reason to believe that the mother might not have been at the address for service that had been indicated on the documents that she had filed a few months earlier and that was the reason for notice to go to two separate addresses to try and make sure that they reached the mother.
I am satisfied by the affidavit of the father filed on 29 November 2010 that on that date he sent copies of his affidavit, the affidavit of his wife and an amended initiating application and a notice of address for service to the mother by post to the two addresses that I have specified. Whilst that was one week out of time under the orders that I made on 15 November, I am nonetheless satisfied that it was amply well before today’s listing for the mother to have considered the documents sent to her and if she wished to respond to them and to attend or be represented to actively participate in the hearing today, which I fixed when the matter was before me on 15 November. I note today’s listing date is endorsed on the front of the amended initiating application.
In the circumstances I am satisfied that the mother is fully aware of these proceedings. She is clearly aware what they relate to, she is aware of the material that the father has placed before the court and seeks to rely upon, and I am satisfied it would not entail a denial of procedural fairness to her to proceed in her absence.
Despite the very long history of this matter, the evidence in support of the father's application is relatively brief. The father indicates that since the child has come into his care, she has settled well into the new household, that he has a warm and loving relationship with her, that she is doing well at school.
The father's occupation takes him away from the home for some days at a time, and hence much of the day to day care of the child falls to his wife. She deposes as to the relationship she has with the child. She clearly is identified as the child’s step-mother, not as the child’s mother, the child calling her by the step-mother’s given name or an abbreviation of it. The step-mother has clearly addressed appropriately the particular medical needs of this child who suffers from [medical condition omitted]. As long ago as 2006, in anticipation of the child spending holiday time with her and the father, she undertook self-education in relation to [medical condition omitted]. More recently, in June 2009, she has joined the [organisation omitted] so that she can network with others and stay current on recent advances in modalities of care and treatment of this particular [medical condition] and also new research and therapies being studied and trialled.
Since passing into the father's care in December 2009, the child has re-established contact with her extended paternal family and the evidence indicates that she takes great delight in talking about the members of that family that she refers to as “my family.”
The step-mother deposes to the fact and corroborates the evidence of the father that the child transitioned well and quickly from her former residence with the mother into her new home and she is described as “happy,” “resilient,” “well liked by her peers,” and accepted by them. Despite her disability it is said that she forms friendships on her own and socialises within her capabilities and otherwise she is progressing well. Steps have been taken to secure appropriate specialist paediatric care for her in relation to her particular needs and she is also receiving on-going care with an orthodontist. The child is being fitted with a corrective appliance.
It is clear on the evidence that the father and his wife are meeting this child’s needs and the child is thriving in their care.
The orders that I am asked to make are parenting orders. The child’s best interests are the paramount consideration in determining what orders should be made. In determining where the child’s best interests lie I must have regard to those of the matters under section 60CC, particularly subsections (2) and (3), but also including the other subsequent subsections, as are relevant to the case. In assessing those particular considerations I must have regard to the objects and principles of Part VII of the Family Law Act 1975 as set out in section 60B. I must have regard to section 61DA in relation to the rebuttable presumption in relation to equal shared parental responsibility, and if an equal shared parental responsibility order is to be made, I must consider the provisions of section 65DAA in the terms of the section and in light of the High Court guidance in MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424.
It is clear that the orders that are proposed would in effect preclude a relationship between the child and the mother. It is therefore a serious and extreme step to take. It may, in the medium and longer term, if not also in the shorter term, have profound adverse effects upon the child. I certainly note the various provisions of section 60B and section 60CC(2)(a) that speak in terms of both parents being involved in the life of a child and the child having an opportunity to benefit from a meaningful relationship with both parents. However, that is always subject to the overriding qualification that it must be in the child’s best interests, and in some, albeit quite rare cases, it is not in a child’s best interests to have a relationship with a parent. That may be, for example, because, using the language of 60CC(2)(a), the significance of the relationship to the child might not be a beneficial one.
There is no evidence to suggest that this child since moving into the father’s care has made any enquiry after her mother at all, and in fact the father asserts at the bar table that she has not done so. There is some evidence in the affidavit of the father’s wife that suggests that on one occasion at court when the mother was accompanied by a support person, the support person made comments - and I am referring to paragraph 9 of the step-mother's affidavit - made comments that are suggested to have perhaps raised some questions about the mental health of the mother. In my view, that evidence is insufficient for me to make any finding or draw any inference adverse to the mother about her mental health.
The mother was clearly aware of the order reversing the care of the child as the child was removed from her care by the police. The matter was adjourned from 11 December 2010 to 16 April 2010, on which date Henderson FM made further interim orders suspending the prior parenting orders and placing the child in the father's care with no orders for the child to spend time or communicate with the mother. Despite knowing the court had reversed the prior parenting orders and suspended the mother’s time with her daughter, it took the mother some time before she attempted to participate constructively in the proceedings. She did not file an application to reinstate any time with her daughter until 9 June 2010.
It has now been some fourteen months since there has been any order in force for the mother to spent time with the child and despite her coming before me on various occasions and protesting very vehemently about the lack of an order to spend time with the child, ultimately she has not pressed any application to enable her to pursue an on-going relationship with the child and she has not put evidence to the Court to show that it would promote the welfare of the child to do so.
The difficulty that the Court faces, therefore, is assessing what if any positive influence the mother might have upon this child if there was to be a relationship facilitated through spending time or communicating with her. The evidence at the moment does not enable me to assess that there would be any. It is, as I have said, an extreme step to cut off all time between a child and a parent but in my view reluctantly I am left with no alternative in this particular case.
Turning to the remaining relevant considerations, as I say, I take into account subsection 60CC(2)(a) and the seriousness of the step that I am taking.
There is no evidence before me in relation to the child’s wishes one way or the other except to the extent to which an inference might be drawn from the child’s failure to enquire after her mother or to seek to have any involvement with her since she passed into the father’s care. That is not necessarily the same as saying that she does not want to do so but certainly the evidence satisfies me that it is most unlikely that there would be an environment within the father’s household that would dissuade the child from raising it with the father if she wished to do so. And it is on that basis that I am prepared to draw an inference that the child’s silence is not an indication of feeling unable to express to the father a wish to have some involvement with her mother but an indication that she is indifferent at best to having a relationship her mother.
But that does not conclude the matter. Despite indifference, it might of course in some cases be appropriate that a relationship exist but quite serious allegations have been made against the mother in the past. They are not repeated in the evidence relied on by the father now and therefore I cannot take them into account. But is not now participating in these proceedings. I certainly take into account that one of the relevant considerations is the actions, or steps that have been taken by a parent to be actively involved in the life of their child, to paraphrase the wording of section 60CC, and it is clear in this case that since this child was removed from the mother’s primary care, she made some attempt, after some delay, to seek orders to spend time with the child but she ultimately has not pressed any application to reinstate any time with the child or to communicate with her.
In the circumstances I am not satisfied that it would be in this child’s best interests for there to be an order for equal shared parental responsibility and I am satisfied that the presumption under section 61DA is in fact rebutted. It would seem to me to be a futile exercise to expect the father to attempt to communicate with the mother where the mother herself is not indicating a desire to be involved in the life of the child.
As I have said the evidence satisfies me that the child is thriving in the care of the father. I am concerned that the history of these proceedings before me may indicate that the only way this child can have a relationship with her father is to live with her father, not with the mother, but in any event the fact is that the mother is not participating in these proceedings and suggesting that she can provide better care for the child. I am satisfied that it is in her best interests to remain living with her father.
And so far as spending time, or communicating with the mother is concerned, likewise, where the mother herself does not seek to do so, and where the child has not indicated any desire to do so, I am satisfied, extreme though this step may be, that it would be in the child’s best interests that the child spend no time and have no communication with the mother.
ORDERS DELIVERED
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 9 March 2011
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