JJC v RMS

[1999] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A49 of 1998

B e t w e e n -

JJC

Applicant

and

RMS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 AUGUST 1999, AT 10.46 AM

Copyright in the High Court of Australia

MS J.J.C:  I am the mother, appearing in person, your Honour.

MR M. AGAR:   If it please the Court, I appear for the respondent.  (instructed by Michael Agar)

GUMMOW J:   We have this system, you might have observed, that each side gets no more than 20 minutes.

MS JJC:   Yes.  Your Honours, this matter has come before this Court because the Family Court is applying the Family Law Act in such a way as to be extremely biased against those mothers who are left holding the baby, while the father goes on his own way, ignoring the responsibilities he has in relation to his child, and in such a way as to unnecessarily interfere with an established family unit and the upbringing of the children within that unit.

GUMMOW J:   What was the actual point of the Full Family Court decision?  What did they do that you complain of?  What order did they actually make?

MS JJC:   It is a contact order, your Honour.

GUMMOW J:   Yes, and it dealt with what, the Christmas‑New Year period, did it?

MS JJC:   Alternate weekend-overnight contact.

GUMMOW J:   Yes.

MS JJC:   The Full Court of the Family Court correctly found, at application book page 22, at lines 7 and 8, that I had virtually been the child’s sole parent from the birth of my first child in 1988 until my first appearance before the court in 1998.  The Full Court of the Family Court also correctly found, in application book page 22, lines 16 to 21, that the father, in 1991, had not wanted to share in guardianship and custody of the children being willing for me to solely take on all the parental responsibilities of raising the children.  In other words, your Honour, for 10 years – five years with the help of my husband – while I took on all the responsibilities of feeding, clothing, nursing, educating, protecting and guiding the children, the father pursued his own interests, enjoying the company of the children once a fortnight, without him ever having to make one parenting decision, or performing one parenting task.

There are two main points I wish to make in support of my written arguments; in particular, to the questions raised which are numbers 3 and 4.  Firstly, your Honours, the Family Court and the Full Court of the Family Court failed in their duty to recognise the reality of the childrens’ situation.  In relation to this duty I refer your Honours to page 10 of the documents book, being the matter of Re Adoption Application by Clark (1987) 11 Fam LR 962 at 972 in the Adelaide Childrens Court.

Their Honours stated at page 10:

the desirability of the law is to recognise a family unit that has been established and in particular to recognise the status of a person or persons who have in reality reared a child.

Your Honours, the reality in this case is that the children have two united parents, myself and my husband, who has been their step‑father since 1993.  The reality is that the children live in a long‑established family unit consisting of myself, their step‑father, the two children in question, and their younger half‑brother. 

GUMMOW J:   Am I right in thinking that the result you want to obtain is a refusal of any order for contact?  Is that right?

MS JJC:   That is correct.  Unless I see fit, as the childrens’ sole parent, yes.

The children know the other party as their biological father, but do not regard him as a parent.  He has had no input into, or influence upon the childrens’ upbringing.  Secondly, and following on from this point, is the failure of the Family Court and Full Court to recognise that the term “parent” cannot logically be applied to a birth father who has not fulfilled a parenting role over a significant period of 10 years.  As Mr Dickey, QC states in his book Family Law, Third Edition, at page 414, which is at page 26 in the documents book:

In the context of the assumption that contact with a child’s parent ordinarily promotes the welfare of the child, the title “parent” should not be taken strictly.  It is clear from the cases that this assumption concerns not a biological parent but a person who has performed the role of a child’s parent.

Furthermore, your Honours, at page 39 of the documents book, the Australian Law Council, in its 1992 report Patterns of Parenting After Separation, recognised at paragraph 9 that one of the circumstances in which orders for the contact have been refused has been the:

lack of a previous significant relationship between the access parent and the child, especially when combined with the child’s attachment to a substitute parent figure:

Your Honours, the Family Court, the Full Court at application book page 38, lines 6 to 10, unfairly dismissed my suggestion, without any reason being given, that birth father could not be properly regarded as a parent because he had never performed the role of a parent.  In the first court, Justice Dawe, on page 6, lines 21 to 22, said, as part of her judgment that:

they –

the children -

will be in a position to develop a good and healthy relationship with their father.

At line 24:

the children have a right to develop a strong bond with both of their parents –

But, in making a contact order for this reason, the Family Court is again ignoring reality in an attempt to create a situation as the court thinks it should be, rather than how it is.  The children’s lives have not been static.  They have had to get on with their lives without their birth father in a parenting role.  It is too late, now, even if it was desirable to replace the step‑father in the childrens’ affections. 

As Justice Waddell, page 17 of the documents book, said in the case of N and Another v M (1983) 8 Fam LR 984, page 989, when considering the question of contact:

in the nature of things he cannot really hope to form a father‑daughter relationship in any full sense with her while she remains, as inevitably she will, emotionally committed to her present family situation.

In the matter of Jarman v Lloyd (1982) 8 Fam LR 878, page 888, page 21 of the documents book, in the Supreme Court of New South Wales, Justice Wootten referred to and accepted expert evidence in relation to bonding that had been given in an earlier case:

“By bonding, I mean the commitment to a child in a one way flow of affection and concern.  Bonded parents rarely act selfishly where the child is concerned.  The child’s welfare takes priority with little sense of sacrifice or conflict.  To be bonded is to have a willing and irresistible commitment.

Justice Wootten goes on to say at page 22 of the documents book at page 889:

On the child’s side the bonding is not a result of the physical realities of conception and birth…..The child’s tie is to the psychological parent who cares for it:

Your Honours, the evidence before the Family Court and the Full Court was that the birth father had rejected being involved in rearing the children, and had, in actuality, if not strictly in the legal sense, given up his rights to share guardianship and custody of the children. 

Your Honours, parenting is a commitment, and not something one takes up or puts down when it suits.  That is not fair to the children, or the mother in this case, who has solely had the responsibility of raising the children. 

The Family Court and Full Court is wrong to allow the father to manipulate the situation and exploit the wording of the Family Law Act.  The Family Court is wrong to promote a biological connection in circumstances that warrant a different approach.

In the case previously mentioned of Re Adoption Application by Clark, page 10 of the documents book, at 972, their Honours stated at the end of the third paragraph:

the relationship between a child and natural parent is not necessarily absolute in determining what is in the best welfare and interest of the child.

Their Honours went on to refer to the High Court decision of Mace v Murray (1955) 92 CLR 370. Their Honours cited, with approval:

considerations of a natural bond between a child and natural parent can give way to other considerations and, in that case, particularly where a natural parent has renounced such rights and that has only somewhat belatedly desired to regather them again.

There is much more that could be said, but I shall close my argument by pointing out two important inaccuracies in the judgment of the Full Court.

GUMMOW J:   Yes, we had better look at those.  What is the first one?

MS JJC:   In the application book, page 36, line 2, the Full Court said that children have a:

statutory right to know and be cared for by both parents –

but, there is no statutory right that a child can seek to be enforced if the parent is unwilling to co‑operate.  Number two, application book, page 38, lines 3 to 5.  The Full Court rejected my claim that it is unusual for a person “to have sole parental responsibility” for both the day-to-day and long‑term care, welfare and development of a child.  However, the Australian Law Council, on page 41 of the documents book, paragraph 6.13, said in its report on Patterns of Parenting After Separation, joint guardianship, now long‑term care, welfare and development, “is rarely severed”.

There are many problems with the judgment of the Full Court.  I seek leave to appeal so that the questions raised may be addressed.  Thank you.

GUMMOW J:   Thank you

MR AGAR:   Your Honour, I have very little to add to the written summary of argument.  The only matter that the applicant has said that attracted my attention was that the father has exploited the wording of the Family Law Act.  That appears to me to indicate that the mother disagrees with the meaning of the Family Law Act and is disagreeing with federal Parliament in what it said in the Family Law Act.  That is not something this Court can deal with.  Apart from that, I have nothing to add to the written summary of arguments, your Honour.

MS JJC:   I disagree with the interpretation of the word “parent”, which has already been explained, your Honour.

GUMMOW J:   We will take a short adjournment.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.10 AM:

GUMMOW J:   The applicant seeks to have this Court displace orders made by the Family Court of Australia and to achieve a result whereby there is no contact order in favour of the respondent biological father.

Disputes of this character have been allocated by the Parliament of the Commonwealth for resolution by the Family Court of Australia.  The decisions of the Family Court and the Full Court of the Family Court depended upon a range of discretionary factors.  This Court rarely intervenes in such cases. 

In all the circumstances, it has not been shown to have been wrong to conclude, as in effect the Family Court did, that the contact be afforded the biological father would disrupt the close family ties which have been established by the applicant, her husband and the children.  Accordingly, the application is dismissed.

MR AGAR:   I seek the respondent’s cost of this matter, your Honour. 

GUMMOW J:   There were no costs in the Full Court, were there?

MR AGAR:   No, and furthermore, the applicant’s argument was partially successful there.  I expect that was part of the reason.

GUMMOW J:   Yes.  What do you say about costs?

MS JJC:   In the event that this application is refused, I do not believe an order for costs should be made in favour of the respondent for the following reasons:  (a) I have not been served with an appearance by the respondent.  I am married to an unemployed man and, prior to my marriage in 1994, I had not been employed for approximately eight years; (c) I have had to bear more than 90 per cent of the expenses of raising the children.  The respondent’s total contribution over 10 years has been $11,561.  The respondent has not paid any child maintenance since September 1997.  The respondent earned approximately $30,000 per annum from and including 1994 to 1997.  He was employed for several months during 1998.  The respondent has a partner and her 20 to 21‑year‑old daughter lives on the premises.  There are three incomes coming into his household and no dependent children.

MR AGAR:   All those facts are disputed, your Honour.  The applicant has come here of her own free will.  Furthermore, the applicant chose to present oral argument.  Upon presentation of the applicant’s original appeal the reply from myself said no oral argument, exactly the same as the applicant had first put forward.  In other words, I do not want to come here either.  The applicant, of her own will, has chosen to come here.  That burden should not fall on the respondent.

GUMMOW J:   Yes, I am afraid the order has to be with costs.  The application is dismissed with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED