Kamika and McCormack

FAMILY COURT OF AUSTRALIA

KAMIKA & MCCORMACK

[2008] FamCA 120

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms McCormack

RESPONDENT:

Mr Kamika

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

3613

2002

DATE DELIVERED:

21 February 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

14 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

RESPONDENT:

There was no appearance by or on behalf of the father

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

Orders

Orders 3, 4, 5, 6 and 7 of the orders herein made on 7 March 2007 be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Kamica & McCormack is approved under s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3613 of 2002

Ms McCormack

Applicant

And

Mr Kamika

Respondent

REASONS FOR JUDGMENT

Introduction

The application before the court is an application by the mother for orders varying orders previously made that the father have face to face contact with his daughter, the effect of which is to suspend the operation of that order. Those orders were made by the court on 7 March 2007 and a copy of them is as set out hereunder.
“BY CONSENT IT IS ORDERED:
1.        That all previous Parenting Orders be discharged.
2.That the child, […], born […] March 2001 live with the mother.
3.        That the child spend time with the father as follows:-
(a)From 5.00 pm., to 6.00 pm., on Tuesday, 13 March 2007 with the father to collect the child from the mother at the front of […] Restaurant at [N] and the father to return the child to the mother’s residence at 6.00 pm;
(b)From Sunday, 18 March 2007 and each week thereafter, alternating between a Saturday and a Sunday, from 9.00 am., to 12.00 noon;
(c)From Saturday, 5 May 2007 and each week thereafter, alternating between a Saturday and a Sunday, from 9.00 am., to 3.00 pm;
(d)From Sunday, 10 June 2007 and each alternate Sunday thereafter from 9.00 am., to 5.00 pm.
4.That for the purpose of these Orders, unless otherwise specified, the father is to collect the child from the mother’s residence at the commencement of his time with the child and the father is to return the child to the mother’s residence at the conclusion of his time with the child.
5.In the event that the father’s time with the child falls on Easter Sunday, then the father’s time with the child shall be suspended on that day and the father shall have time with the child on Easter Monday from 9.00 am., to 5.00 pm., instead.
6.That in the event the father’s time with the child falls on Mother’s Day, then the father’s time with the child shall be suspended for that day.
7.In the event that the father’s time with the child does not fall on Father’s Day, then the father shall spend time with the child from 9.00 am., to 5.00 pm., on that day.
8.That from the date of these Orders the mother shall have liberty to remove the child from Australia for period of not longer than six (6) weeks, each alternate year, but not before June 2008, for the purpose of an overseas holiday to the United Kingdom and the father’s time with the child pursuant to Order 3 above be suspended for that period and the father have makeup time with the child as agreed between the parties.
9.For the purposes of Order 8 above, the mother provide the father all travel details, including itinerary, accommodation details, flight details, contact telephone numbers and overseas addresses not less than fourteen (14) days prior to her departure.
10.That the mother provide to the father not less than six (6) weeks’ notice in writing of her intention to travel overseas.
11.That the father have telephone communication with the child each alternate Thursday between 6.00 pm., and 7.00 pm., and to facilitate this telephone communication the mother shall initiate the telephone call on behalf of the child; such contact to commence Thursday 22 March 2007.
11A.That the father have contact each alternate Thursday between 5.00pm and 6.00pm (to take the child to dinner) the collection point being intersection of […] St and […] St [N] commencing Thursday 29 March 2007.
12.On occasions when the child is overseas, as referred to in Order 8 herein, then the mother is to facilitate the child to telephone the father each Wednesday between 7.00 pm., and 8.00 pm., Sydney time, and the mother is also to set up an email address for the child and provide details of her email address to the father for the father to communicate with the child via email.
13.That both the mother and the father are restrained from denigrating, criticising or speaking in a derogatory fashion about the other, either to or in the presence of the child.
14.That both the mother and father shall use their best endeavours to ensure no third party denigrates, criticises or speaks in a derogatory fashion about the other parent either to or in the presence of the child.
15.That during any period which the child is spending time with either parent, in the event of the child being hospitalised or receiving medical attention for serious illness or injury, then that parent shall notify the other parent as soon as practicable after the child’s first contact with either the Medical Practitioner, Medical Centre or hospital.
16.That the mother within fourteen (14) days of the date of these Orders and with fourteen (14) days of the child subsequent enrolment at any school, do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the father:-
(a)      Copies of each of the school reports and merit cards;
(b)Any written material pertaining to the child’s academic and extra-curricular activities;
and the father shall be permitted to attend at the school, all parent/teacher nights, school plays and other functions to which parents may ordinarily attend.
17.That both the mother and the father shall advise the other in writing of any change of address or telephone contact number no later than fourteen (14) days prior to any proposed change, including the details of a new residential address or telephone contact number.
18.That the mother inform the father in writing as soon as practicable of any specialist medical appointments, including any speech therapist (hereafter referred to as “Consultant”) in relation to the child and further that the mother do all acts and things to ensure that the father is provided with all reports by any such Consultant.”

On 28 September 2007 a direction was made that the application be set down for hearing for one day in consultation with the parties.
By letter from the List Clerk of this court dated 17 October 2007 the father was advised this matter was listed before the court for hearing on 14 February 2008.
Tendered to the court at the commencement of the hearing by the Independent Children’s Lawyer was a bundle of communications from him to the father. In the first of those communications dated 8 November 2007 he informed the father”:
“The Court has advised that this matter is now scheduled for a final hearing on 14 February 2008 at 10.00 am at the Family Court at Sydney.”
In subsequent communications on 5 December 2007, 19 December 2007, 1 February 2008, and 12 February 2008 the Independent Children’s Lawyer advised the father to the effect that if he were not to be present on the hearing date it would be his application that the matter proceed on an undefended basis.
To those letters the father responded in the following terms:
a)By letter dated 4 February 2008:
“I think I have made it very clear to you. I dont (sic) have time to stop. Not even for 1 second. I am always busy providing for [the child]. You can check my records you have requested but dont (sic) do it for me. Do it for yourself.
I will not event be there as I said at the final hearing. I do not have time to stop.”
b)By letter dated 6 February 2008:
“Clelland I dont (sic) want to listen to your shit anymore, because on the 14-2-08 Valintines (sic) Day whilst you are sitting on your fat arses talking about making money. I will be out there making it. And I just wont (sic) stop.
…
Just dont (sic) keep taking (sic) about it for over 6 years now. Make it. And just do it.
Leave me alone I am sick of your garbage.”

The court received a letter from the father dated 14 February 2008 stating:
“…
I will not be in court today. My deepest apologies.
As advised in writing to Clelland Sperling Legal Aid before matter went into Court last.
…”

The letter purports to give reasons for his non attendance. I reject those reasons as being sufficient to justify that event. The father has known since at least December 2007 that the matter was set down for hearing on 14 February 2008. He has been notified on at least five occasions in writing. He has declined to attend and for those reasons I directed that the matter proceed before me undefended.
Evidence was given in the form of an affidavit filed by the mother on 1 August 2005. Three expert reports were before the court namely Dr W dated 7 June 2004 and Dr R dated 2 September 2005 and 7 December 2006.
The mother also gave oral evidence and was cross-examined by the Independent Children’s Lawyer.

Background Facts

The father was born in April 1958. The mother was born in February 1965.
The parties entered into a relationship in March 1998. Of that relationship there was one child born in March 2001. The relationship ceased in November 2001.
In 2000 the mother became aware that the father was a cross dresser.
Proceedings were first commenced in this court in May 2002 in which the mother sought to remove the child to the United Kingdom from July to September 2002. At that time permission was given and travel orders were made that the child live with the mother, that the child have contact with the father between 9.00 am and 5.00 pm each Saturday and that there in addition be telephone contact.
There were difficulties in contact between November 2002 and in January 2003 and the father sought orders for defined contact.
In February 2003 orders were made at the Local Court that the father have contact with the child each Sunday and that the proceedings be transferred to the Family Court where an Independent Children’s Lawyer was appointed. In June 2003 the mother was given leave to take the child to the United Kingdom until 9 August 2003.
Orders were made in the Family Court in October 2003 for the preparation of an expert’s reports by Dr W.
In November 2003 the proceedings were commenced by the mother in the New South Wales District Court seeking orders adjusting property rights under the New South Wales Property Relationships Act. They were resolved by consent orders being made in that Court.
In May 2004 the mother asserts that the child was returned from contact with a black ‘cat o nine tails’’ whip. There are assertions thereafter made by the mother of inappropriate touching of the child by the father but as a result of reports it seems that that issue is no longer a live issue before me.
Hearing dates were allocated for the matter for 4, 5 and 6 May 2005 but were vacated in April 2005.
Between April and September 2005 contact occurred at the C Contact Service on a total of 20 occasions.
On 28 September 2005 interim consent orders were made which provide for supervised contact between the child and the father.
On 2 September 2005 Dr R provided her first report.
On 7 December 2006 a second report by Dr R was provided.
In March 2007 the orders sought to be varied were made. The variation now sought is that the operation of orders 3, 4, 5, 6 and 7 be suspended. Those are orders for face to face contact between the child and the father on a weekly basis.
No order is sought varying any of the other provisions of that order and in particular orders 15, 16 and 18.
Following the making of the orders the father spent some time with the child but 1 April 2007 was the last occasion upon which he spent time with her face to face.
The father subsequently had telephone communication with the child on a few occasions but they were few in number and limited in scope and the evidence is that the child expressed a desire not to continue with telephone calls.
The mother received a facsimile transmission from the father in the following terms through her solicitors:
“Please advise mother that all contact to my daughter including phone contact to cease. I would like to advise the mother to advise the child (my daughter […]), I will not be home to take these calls in future do not bother to ring.
I am simply sick of lawyers wanting money even when I am prepared to pay.
I am happy to deminstrat (sic) to the courts even if no contact was given I would still be prepared to pay for [the child].
Stop taking the issues out on [the child]. She is a child, she is not to blame.
Until further notice in writing or see you 30 July 2007.
P.S. I would not want the Legal system thinking I am trying to rip them off over a 40 cent phone call.”

The mother also received a number of text messages from the father.
On 5 January 2007 she received at 7.48 am from his mobile number a message to the effect “Do not ring me until further instructions. Save your 40 cents. [The child] needs it. I do not.”
On 11 April 2007 the father sent a text message to the mother from his mobile number saying words to the effect “I cannot see [the child] tomorrow. The legal system has said words to the effect that they are acting with intents to harm her.”
On 26 April 2007 at 4.10 pm the mother received from the father’s mobile a message which said “Don’t get [the child] to ring me or contact me until I notify you in writing. The legal system said that they would harm [the child] even over a 40 cent phone call.”
It seems on the evidence that the child has not seen her father for the period from 24 September 2006 until March 2007 and no acceptable explanation has been given by the father for that. From 1 April 2007 until July 2007 there was no contact between the child and her father. The father did not give an acceptable or indeed any explanation as to why it did not occur. Since April 2007 there has been no face to face contact.
The mother expresses anxiety about the father’s stability; points out that he has not seen his daughter for a considerable period of time; and believes that the delivery of the whip with the child is an indication of his lack of stability. Although she says it is not now relevant to the question of whether the orders should be suspended she has in the past had concerns that the father may give rise to his fetish of cross dressing in the presence of the child and that he had in the past done so.
Since 8 August 2007 the mother has tried to initiate calls to the father and indeed the child was able to speak with her father in November and December of 2007.
The mother has not made any further attempts after discovering that his message banks both on his mobile and landlines were full.
The mother gave evidence that the child expresses a reluctance to talk to her father. She says to encourage her she prompts her by saying “ask him what he is doing.” On most occasions she has hung up, on other occasions she has engaged in conversations with her father.
It was submitted by the Independent Children’s Lawyer Mr Sperling that the orders for the child to spend time with her father should be suspended. He said that this was a matter of significant disappointment since the early reports had indicated that the child could have a happy time with her father but the father’s continued cutting off of contact between himself and the child put her in danger of psychological distress as a result of this repetitive abandonment.
That distress has now become apparent and it seems that the child has been reluctant to have contact with her father by telephone although she clearly knows who he is and her relationship with him.
The mother says she has a trusting communication with her daughter and that she has told her daughter that she may at any time raise with her the question of contacting the father.
She assures the court that she has not said anything against the child’s father and has encouraged the child to speak to and about her father.
The Independent Children’s Lawyer urged upon me that the child in these proceedings needs stability. In future there may be an option for the father to have contact with the child but not at this stage, when the child is likely to be further traumatised by contact and then unexplained absence.
The child has been isolated from her father by his conduct, not by the conduct of the mother.
The Independent Children’s Lawyer said that the child has a clear picture of who her father is and she may later be curious about the reasons why he did not continue to have contact with her, and seek him out.
The father’s unilateral decision that he will not see his daughter and his demonstrated lack of understanding of the effect it has had on the child, both directly (and indirectly because of the effect it has on the mother and therefore the child), indicates that he has not clearly understood the responsibilities and duties of parenthood and he certainly does not appear to demonstrate an understanding of what is appropriate for contact with his child.
Dr R in her report refers to: “children who have these experiences (father in and out of life) think they are not loved.”
It is a pity that although the child has had a positive relationship with her father he has withdrawn from the relationship.
There is no evidence other than that the child’s physical wellbeing is adequately catered for by her mother. The mother appears also to be able to well cater for her emotional wellbeing but the uncertainty of the present situation is such that I am concerned that without creation of some certainty there will be continuing anxiety for both the daughter and the mother.
Whilst expressing that concern it is my hope that the father will develop insight into the necessity of maintaining regular and appropriate contact with his daughter should the time come when that can resume on a face to face basis.
It is not my intention (nor is it sought) that there be any present interference in the telephone contact order and indeed the mother has undertaken to the court from the witness box that she would seek to implement that contact in accordance with the order.
The father will have the benefit of receiving information from the child’s school as to her progress and there is no prohibition on the father communicating with the child appropriately in writing.
The orders for non denigration will remain in force.
The child has a clearly close relationship with her mother and her family as is set out in the reports upon which reliance is placed. The child has not expressed any view but her failure to refer to her father or to communicate with him it is suggested is an implicit expression of a view. I do not rely upon that. I think it is simply an acceptance by the child of the situation as it is. Even had a child of this age expressed a view the weight it would carry would I think certainly not be decisive.
Perhaps the security afforded by the orders I propose to make and the certainty that it will bring into not only the child’s life but that of her mother will provide a basis where at some time in the future consideration might be given to exploring the possibility of resumption of the contact. At the present time it is my view that an abandonment of face to face contact is not only in the interests of the child’s welfare but also less likely to lead to further litigation. Orders in this matter made for the provision of contact have clearly been extensively ignored by the father.

The proposals set out by the mother for the care of the child in her affidavit are noted. Her seeking of appropriate medical advice for the child when required is also noted.
The mother says that the child suffers from no current health difficulties.
She is attending school at F School and she is there in Year 2. She is progressing well at school and the school reports have been sent by the mother to the father. She had in the past suffered from night terrors but they have now ceased.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
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 paramount (see section 60CG).
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 under 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.
Section 61DA(1) 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 for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children 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 are to have equal shared parental responsibility.
There appears no issue between the parents that the parents should have equal shared parental responsibility.
In circumstances where the husband has by his conduct repudiated orders that the children spend time with him it is not reasonably practicable for the children to spend equal time with him nor indeed the time already the subject of pre-existing orders.
It is not in the child’s best interests that she continually be reminded of the rejecting conduct of her father. It is not in the child’s interests that the mother be continually subjected to a situation in which there is doubt as to whether or not the father will conduct contact in accordance with any order let alone an order for equal time.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

I have considered that the child could have a meaningful relationship with both parents if the father acted differently to the way in which he does. There would then be some possibility of the contact with the father being meaningful. The present process of neglect and abandonment does not make such a relationship possible for the time being.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The orders that I propose to make would in my view protect the child from psychological harm and being exposed to neglect. The psychological harm arising for the child is that referred to in the report of Dr R.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

I refer to my earlier comments on this subject.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a close and loving relationship with her mother. It appears she has been unable to by reason of the father’s failure to be available for contact develop a continuity of the relationship which on reports was at one time a happy one. At present the nature of that relationship is somewhat blurred. It does appear that the child at best has a somewhat tentative relationship with the father at the present time.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I accept that the mother has done her best to facilitate a relationship between the child and the other parent. Regrettably the father has not done his best it seems to facilitate that relationship between the child and himself.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders that I make will not, having regard to the circumstances in which the child now finds herself, represent any significant change from a situation which has existed now for a long period of time.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There seems to be no reason on the evidence as to why the child could not maintain direct contact with both parents on a regular basis save the unwillingness or incapacity of the father to make that contact.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
I accept that the mother on the reports provides well for the child’s physical and emotional and intellectual needs. The father makes no such provision it seems. There is in my view the order that I make is less likely to lead to the institution of further proceedings for the reasons set forth in this judgment.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has demonstrated irresponsibility in the exercise of his parental role by his failure to maintain meaningful and regular contact with the child.
For the reasons set forth above I make orders as asked by the mother and suspend the provision of face to face contact pursuant to the provisions of 3, 4, 5, 6 and 7 of the order herein made on 9 March 2007.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 21 February 2008

[2008] FamCA 120

21 February 2008

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Appeal

Costs

Remedies