Jordan and Green

[2009] FamCA 663

FAMILY COURT OF AUSTRALIA

JORDAN & GREEN [2009] FamCA 663

FAMILY LAW – CHILDREN – Final orders – No appearance by father

Family Law Act 1975 (Cth)

APPLICANT: Ms Jordan

RESPONDENT: Mr Green

INDEPENDENT CHILDREN’S LAWYER: Ogilvie Jennings

FILE NUMBER: LNC 231 of 2008

DATE DELIVERED: 29 January 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Justice Fowler

HEARING DATE: 29 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mooney

RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Mr Turnbull excused from attendance

Orders

THE COURT NOTED THAT:

(A)the father does not appear this morning at 9.15 am when this matter is listed for hearing.

(B)the Independent Children’s Lawyer does not appear pursuant to leave granted to him not to do so.

(C)the Independent Children’s Lawyer has informed the Court that he has considered the mother’s position and supports her application.

(D)     the following material has been read in the proceedings:

(a)the mother’s Amended Application for Final Orders filed 23 January 2009

(b)Affidavit of the mother filed on 6 August 2008

(c)Affidavit of the mother filed 23 January 2009

(d)Children & Parents Issues Assessment dated 26 August 2008

(e)Single expert’s report of Dr R filed 22 December 2008

(f)Affidavit of Ms Z filed 5 November 2008.

AND IT IS ORDERED THAT:

1. The father’s Response to Initiating Application filed 18 June 2008 is dismissed.

2. The applicant/mother, Ms Jordan (the mother) have sole parental responsibility for the child, … born … September 2006 (the child).

3. The child live with the mother.

4. The respondent/father, Mr Green (the father) be and is hereby restrained from approaching the mother directly or indirectly (including by telephone, SMS or email) save and except to spend time and communicate with the child in accordance with the terms of these Orders or subsequent Orders of this Court or a Court of competent jurisdiction.

5. The father spend time with and communicate with the child on a supervised basis at the Hobart Children’s Contact Service at times and on dates nominated in the sole discretion of that Service, but not more than one occasion in every fourteen (14) day period.

6. Pursuant to Section 65DA(2) and Section 62B, the particulars of 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 these particulars are included in these Orders.

AND THE COURT NOTED that the mother does not press for an order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Jordan and Green is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 231  of 2008

MS JORDAN

Applicant

And

MR GREEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings before the court are parenting proceedings commenced by the mother of the child, a daughter, born in September 2006.

2. Orders are sought by the mother as set out in her Amended Application for Final Orders filed on 23 January 2009.  Those orders are that the child live with her and that the father be restrained in terms of his dealings with the mother and that the father, if he spends time with the child, does so through a Children's Contact Service.

3. The background facts are that the respondent and the applicant commenced a relationship in November 2005.  The child was born of that relationship.  The respondent and the applicant separated in August 2007 at which time the child and the mother left Western Australia and came to reside permanently in Tasmania.

4. Since the parties separated the father has spent some time with the child but appears, after the commencement of this litigation, and filing an answer and affidavit in response to hers, divorced himself from the processes of the court.  He failed to keep appointments with the independent expert appointed in this matter.  He failed to participate in the proceedings and the matter therefore proceeds today in his absence.  I have already dismissed his Response.

5. Various affidavits of the mother are read onto the record and they set forth a history of a high conflict relationship which is clearly one in which there has been abusive and aggressive conduct by the father to the detriment of both the mother and the child.

6. The mother's history is detailed and lengthy, and particularly having regard to the affidavit of a Ms Z, a woman with whom the father formed a relationship after separation from the mother, which sets forth corroborative evidence of the allegations of the mother and details an abusive and violent history in that relationship.

7. The violence by and large has not been physical violence but is violence, temper, intemperance of language, and in the relationship with Ms Z, included some physical outbursts.  Ms Z also details inappropriate behaviour between the father and her children.

8. The mother has not been without her problems.  She has been diagnosed in the past as suffering attention deficit hyperactivity disorder although the independent expert upon examination, believes that that was an incorrect diagnosis and that the prescription of drugs prescribed for that particular disorder were inappropriate in any event to it in the dosages that were provided.

9. The mother has suffered from significant depression which the independent expert describes as being a waxing and waning condition.  The mother is aware of the condition.  The mother reacts appropriately when the condition is upon her, takes the necessary prescription medicines, and appears to be able to both identify it and seek appropriate treatment for it.  I do not believe that on the evidence the depressive illness from which she suffers is likely to impede her capacity to successfully parent the child.

10. The principles governing this case are set out in the Family Law Act.  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration.  In determining what is in the child's best interest I must consider certain matters under section 60CC.  Those matters are the primary considerations and the additional considerations set out in that section.

11. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child's best interests being treated as the paramount consideration. 

12. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.  I am required to consider matters set out in section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

13. Section 61DA requires that when making a parenting order in relation to a child 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 for the child.  Subsection (4) provides as follows:

    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility of the child. 

14. Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents have equal shared parental responsibility, and for the reasons to which I have already referred and here again deal with, it is not my intention to make such an order.

15. I have come to this conclusion because of the evidence which sustains total lack of civil communication between the father and the mother and the inability of the parties to effectively communicate in a high conflict relationship with each other.

16. It is also of concern to me that there has been a violence of temperament on the part of the father and an inability to control himself.  It is not in my view in the interests of this child that the parties should jointly share the responsibility for making long-term decisions in relation to her.

17. Obviously it is of benefit to any child to have a meaningful relationship with each of her parents.  In this particular case, however, the relationship between this child and her father is problematic having regard to his past conduct; and certainly whilst there is clearly established on the evidence before me a relationship between the child and the father, it does not seem to me that that can be sustained other than in an environment in which the child and the mother are protected from the excesses of the father.

18. Whilst I had some doubt about whether I should proceed to make an order that the child spend time with the father, I am persuaded by Ms Mooney that it is appropriate in all the circumstances, given the nature of the order I propose to make.

19. There is a need to protect a child from physical and psychological harm and from being subjected to, exposed to abuse, neglect, or family violence.  It seems to me on the evidence that I need to make the order that is sought because such an order will, in the interests of this child, afford that protection to her.

20. The child's views are not relevant, in my view, in these proceedings other than generally speaking.  The child does have a relationship with her father and that would sustain an order of the type sought by the mother that the child spend some time with the father.  Apart from that her views are, in my view, irrelevant to the decision-making.

21. The child has a close relationship with the mother who has been, it seems, her primary carer, although she also has a relationship with the father who has cared for her from time to time but not consistently so.

22. It does appear from the documents filed that the mother has sought to facilitate a relationship between the child and the father and she continues to do so but it seems to me that the father, for his part, has acted in a way which would seek to impugn the closeness of the relationship between the child and the mother.

23. I do not think this child would benefit by any change in the circumstances in which she presently lives, namely with the mother, particularly because that is where she has received consistent care. 

24. I do not know where the father presently resides.  He was residing in Victoria.  He may be residing now elsewhere.  Certainly if he continues to reside in Victoria spending time with the child would involve expense and some difficulty.

25. I am informed by Ms Mooney that it is believed that he may now be living in the Devonport area and I thank her for so informing me.  Even that, whilst in the same state and not a state of gigantic size, would no doubt pose some difficulties for regular communication with the child.

26. It seems to me that having considered the capacity of the mother to care for the child, I am satisfied that she has that capacity.  I do not observe at the present time any current evidence which would make me comfortable with the father's capacity to care for the child.

27. This is not a child who has any particular cultural tradition or background which needs to be promoted, so far as I am aware, and so that issue is not relevant to my determination and the child is not an Aboriginal child or a Torres Strait Islander child. 

28. It seems to me the mother has demonstrated consistently an appropriate attitude to the responsibilities of parenthood and to the contrary it does not seem to me that the father has done so.

29. I have already referred to the family violence issues in this matter and I think the order that I propose to make is justified by that history which is uncontested at this time.

30. I think the order that I make, particularly the one relating to the child spending time with her father, is one which would be the least likely to lead to an institution of further proceedings in relation to the child; and in all the circumstances I consider that the order that I make would be in the best interests of this child and promote those interests. 

31. I have touched on a number of matters which fall within consideration under section 60CC(4) and (4A), particularly relating to the conduct of the parties post-separation, and I do not need to further, I think, adumbrate those matters. 

32. Balancing the matters set out in section 60CC, and the evidence recited in these proceedings, I conclude that the orders I propose will operate to foster this child's best interests for the reasons specified.

33. Section 61DA recites a presumption which is required to be applied by the court unless one of the excluding factors apply.  The section requires that the court presume that it is in the child's best interests that the parents have equal shared parental responsibility for the children. 

34. On the facts of this case, as I have already said, it is not my intention to make such an order for the reasons I have already referred to.

35. Given that I am not making such an order, it is not necessary for me to make an order or to consider making an order for equal time, and the order that I make is, I think, appropriate to the child's interests.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  29 January 2009