Knight and Knight

[2016] FCCA 308

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNIGHT & KNIGHT [2016] FCCA 308

Catchwords:
FAMILY LAW – Children – parenting Orders – best interests of the child – parental responsibility – sole parental responsibility – family violence issues – mental health issues – illicit drug issues.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:
Bright and Bright v Bright and Mackley (1995) FLC 92-570

Applicant: MS KNIGHT

Respondent: MR KNIGHT

File Number: SYC 3048 of 2013

Judgment of: Judge Scarlett

Hearing date: 15 February 2016

Date of Last Submission: 15 February 2016

Delivered at: Sydney

Delivered on: 15 February 2016

REPRESENTATION

Applicant: No appearance

Counsel for the Respondent: Mr Greenaway

Solicitors for the Respondent: John Spence & Associates

Counsel for the Independent Children's Lawyer: Ms Falloon

Solicitors for the Independent Children's Lawyer: Peter Baker Solicitor

ORDERS

1. All prior parenting Orders are discharged.

2. The child X born (omitted) 2010 is to live with the father.

3. The father is to have sole parental responsibility for the child X.

4. The Independent Children’s Lawyer is discharged.

5. There is no Order for costs.

THE COURT NOTES

A.It is the father’s intention to:

i.Use his best endeavours to provide information to the mother about X and provide her with photographs of X from time to time, including by email;

ii.Co-operate with the maternal grandmother to facilitate communication between the mother and X and for X to spend time with the mother if the father considers that to be safe and appropriate for X.

B.As at the date of these Orders the email address provided to the Court for the mother is (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3048 of 2013

MS KNIGHT

Applicant

And

MR KNIGHT

Respondent

REASONS FOR JUDGMENT

1. This has been a somewhat unusual case.  It dealt with a little boy called X, who is five years old.  He was five years old on (omitted).  He is now five years, one month and about a fortnight.  He is currently living with his father.  There has been a litigation history between the parents, where there had been orders by consent, and then the mother sought to reopen the proceedings.  It is regrettable, to say the least, the mother has either not seen fit or not been able to attend Court today. 

2. She did play a role in the proceedings. She attended interviews for a family report, filed documents, was ably represented by an experienced solicitor, Mr Cohen, was spending time with the children in accordance with the interim orders made by the Court, but in recent months things seem to have deteriorated significantly.  It became clear this morning that the suspicions that the other parties had, being that the mother was not going to attend Court or play any role in the proceedings, was going to come to pass.  Her solicitor had withdrawn for whatever reason, my guess would be an inability to obtain instructions, but that is no more than a guess. 

3. It has been disturbing and sad that evidence came through, admittedly from a third party but was given in Court by the father, that the mother had made it clear that she did not intend to attend Court, but worse, much worse, had set out an opinion that she did not wish to have a further involvement with her child.  One can only hope that that was a remark made in anger or in the grip of some other emotion and that the mother does not in fact wish to remain away from this little boy. 

4. Certainly there have been some issues in this case which have caused concern. They include a history involving family violence and allegations thereof, a history of drug abuse and a history of mental illness.  The family consultant, Ms M, was certainly concerned about these issues and was not in a position to make a definitive recommendation in the family report.  Ms M, of course, is an experienced family consultant, and for her to come to that conclusion indicates serious concerns.  It is hardly surprising that, in the absence of the mother attending Court or providing an explanation for attending Court or being represented, that the independent children’s lawyer, through her counsel, sought to cross-examine the father in considerable detail about these issues insofar as they concerned him. 

5. Mr Greenaway has said on behalf of his client that his client was a frank witness who at times made admissions against interest.  That should be qualified by the strong view that I hold that parties who, like the father today, at least tell the truth in the witness box, face the truth, face an account of a previous failing and are prepared to deal with it when they are giving evidence will usually do themselves a favour.  The father’s ‘warts and all’ evidence has significantly assisted his case. 

6. The exploration by counsel for the independent children’s lawyer of the anger issues and the father’s frank concessions that perhaps an anger management course may be of assistance to him in the future was, I thought, extremely helpful.  Now, it can be argued, but unfairly in this case, that because the mother did not turn up that the child staying with the father, and the child has been living with the father for some time, was in fact virtually a win by default. 

7. In my view, that is unfair to the father, because he has established in his evidence a commitment to his son.  He has remarried.  He has other children, and he wishes to provide his son, in this case, and his other children with a family atmosphere.  True it is that there have been difficulties involving anger, some of which in fact have involved the police, but the father, in my view, appears to have an insight into the need for a peaceful family relationship for the benefit of all of his children. 

8. It also emerged very clearly from the father’s evidence that X’s maternal grandmother, the father’s aunt, is playing a positive role in X’s life.  The father gave evidence that the child has been spending all day with his grandmother, three Sundays in a row, as recently as yesterday.  There is much to be said for this.  The father’s evidence about the relationship of X with his maternal grandmother was universally positive.  The Court is well aware of the advantages to children in having a strong relationship with grandparents and other extended family members. 

9. There is a well known decision called Bright and Bright & Bright and Mackley[1] where the Family Court made it clear that involvement with extensive family gives the children a grounding, a sense of being part of a larger family group, and it is clear that this child lives in a large family group, and his relationship with his grandmother is important.  It is important for another reason:  X’s maternal grandmother appears to be a conduit or a channel of communication between X and his mother.  In my view, this is important. 

   [1] Bright and Bright v Bright and Mackley (1995) FLC 92-570

10. Certainly the father has given evidence that the communication between himself and the mother is very poor, hardly more than non-existent, although he gave a commitment in the witness box to provide information to the mother from time to time about matters relating to this child’s care, welfare and development, which could include sending her emails.  I see no reason to disbelieve this evidence. 

11. The father appeared to me to be genuine in accepting the fact that this child should have a relationship with his mother, notwithstanding the fact that the evidence appears to be quite clear that the mother is going through some challenging parts of her life, which appear to involve a use of illicit drugs.  There is evidence showing that the father has produced urinalysis tests when required, indicating results where various illicit drugs have not been detected.  I cannot say the same about the mother, because I have no such evidence. 

12. If she attended any such urinalysis, the reports certainly have not been made available to the independent children’s lawyer, otherwise I would have them.  I have noted the submissions from Ms Falloon of counsel that the independent children’s lawyer can find no way to formulate orders that could be specific about X spending time with his mother.  As she said, we do not know where the mother is.  We do not know her current circumstances.  The mother, very sadly, is in a position where the state of her mental health is challenging and, as she says, exacerbated by the use of illicit drugs. 

13. The conclusion reached by the independent children’s lawyer was that it would be impracticable for there to be any orders for X to spend time with his mother or to communicate with her.  The evidence is clear that this child has an attachment to his father, his father has been his primary carer for some time, and appears to have significant relationships with his father, his step-mother and his two half-siblings, but he also has this relationship with his maternal grandmother, whom the father quite clearly trusts, and she is seen as a protective ally for the child when in her care. 

14. Mr Greenaway has made submissions about parental responsibility. He has drawn my attention to the presumption in section 61DA of the Family Law Act 1975 (Cth) that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child.

15. If I were to make such an order for equal shared parental responsibility, then it would follow that I would have to consider the matters set out in section 65DAA of the Family Law Act 1975. Mr Greenaway, however, for the father has submitted that the presumption is rebutted. He has submitted that this is a matter for sole parental responsibility, and, of course, it is a fact in final parenting hearings that under subsection (2) of section 61DA the equal shared parental responsibility does not apply in cases involving family violence, but under subsection (4), which is the area of the law to which I was drawn by counsel for the father, the presumption can be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for him.

16. This, Mr Greenaway submits, and rightly in my view, is just such a case.  The almost complete lack of communication emerges very clearly here.  There does not appear to be any basis when looking at the current situation in which the mother finds herself that the Court could be confident that any order relating to parental responsibility in her favour would be of the slightest benefit to the child.  It would not be in X’s best interests. 

17. The father, however, is here doing his best to be a parent to his child, and he acknowledges the need that, even though there is a rift between himself and his former wife, that his child needs to have a relationship with his mother.  The father has made efforts to deal with some of his less appropriate behaviours in the past.  He has admitted frankly that perhaps an anger management course or a continuation might be of assistance, as it has been in the past.  He has, of course, made efforts to remain away from the use of illicit drugs, as witnessed by the documents that have been tendered. 

18. I have had recourse to describe the provisions of section 61DA and 65DAA of the Family Law Act 1975. There are other matters in Part VII of the Act to which the Court must refer. Section 60B sets out the objects and principles of Part VII. Section 60CA contains the bedrock principle: ‘the best interests of the child must be the paramount consideration when a Court is considering making a parenting order in respect to the child’. Section 60CC is the lengthy section that sets out the way in which a Court decides what is in a child’s best interests.

19. Subsection (2) contains the primary considerations.  Subsection (3) contains the additional considerations.  When one looks at the primary considerations, the Court will see the benefit to the child of having a meaningful relationship with each of his parents.  X certainly has a meaningful relationship with his father.  He has some relationship with his mother, although the extent of benefit that he will gain from this relationship will depend very largely on the state of her mental health and whether or not she is involved with drugs and addiction. 

20. Subsection (3) of section 60CC deals with the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Family violence, of course, has figured prominently in the evidence today, and rightly so. In my view, if this little boy remains in the care of his father, there is no evidence to suggest that he would be subject to abuse. There is no evidence to suggest that he would be subject to neglect.

21. Provided that the father maintains his commitment to keep his anger under control, the evidence would suggest that this child would not be exposed to family violence, and there is no evidence to suggest that he has ever been subject to it.  There is a need for an end to litigation, especially in parenting proceedings.  The Court is required under subsection 60CC(3) to make the order that is least likely to lead to further parenting applications. 

22. Sometimes that is no more than a pious hope. However, on the information available to the Court today, it is quite clear that the orders sought by the father and supported by the independent children’s lawyer are the orders that will be least likely to lead to or allow for the institution of further parenting applications in respect of this little boy.  For X’s sake, one hopes that that is in fact the case.  The orders that are sought by the father are; an order discharging all prior parenting orders, that X live with father and that the father have sole parental responsibility. 

23. For the reasons given by counsel for the independent children’s lawyer, no specific orders are sought relating to the child’s communication or contact with the mother, but, however, there are notations on the minute of order tendered today by consent relating to the father’s intention to use his best endeavours to provide information to the mother about the child, including photographs;  to cooperate with the maternal grandmother; to facilitate communication between the mother and X and for X to spend time with the mother if the father considers that step to be safe and appropriate for the child. 

24. There is also a notation containing the mother’s apparent email address.  It is for all of these reasons that I propose to make the orders sought by the father and the independent children’s lawyer, which I have just summarised, and a sealed copy of these orders will issue out from the Court, I would hope, tomorrow.  I will require a transcript of my reasons for this decision, but I also want to raise another issue, which is that we have an independent children’s lawyer.  I would assume that the independent children’s lawyer may seek to be discharged. That being the case, the independent children’s lawyer is discharged with the thanks of the Court.

25. There will be no order for costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  16 February 2016