Leroy and Dreifer
[2008] FamCA 1020
•6 November 2008
FAMILY COURT OF AUSTRALIA
| LEROY & DREIFER | [2008] FamCA 1020 |
| FAMILY LAW – CHILDREN – with whom a child lives and spends time – parental responsibility – undefended hearing – where father has not seen child since separation in 1996 and did not attend hearing – child to live with mother and spend time with father as agreed – no order as to parental responsibility – s 61C to apply |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA & 65DAA |
| APPLICANT: | Ms Leroy |
| RESPONDENT: | Mr Dreifer |
| FILE NUMBER: | ADC | 1161 | of | 2007 |
| DATE DELIVERED: | 6 November 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 November 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms D Droulias |
| SOLICITOR FOR THE APPLICANT: | Aboriginal Legal Rights Movement Inc |
| COUNSEL FOR THE RESPONDENT: | No appearance |
Orders
That all previous orders be and are hereby discharged.
That the child … born on … June 1995 (“the child”) shall live with the mother.
That the father be restrained and an injunction be granted restraining him from removing the said child from the State of South Australia.
That the father spend time with the said child as agreed between the parties.
That all applications and responses be dismissed and removed from the active pending cases list.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Leroy & Dreifer is approved pursuant to Section 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1161 of 2007
| MS LEROY |
Applicant
And
| MR DREIFER |
Respondent
EX TEMPORE REASONS
Introduction
This matter is listed before me as an undefended hearing and I need to dwell on the history of that for the moment. The proceedings commenced with the mother filing applications, including an application seeking final orders, on 5 March 2007. The father then responded by filing a response on 9 May 2007.
Orders were made initially on 3 April 2007 by Forbes JR, when the father appeared by telephone, he living, as I understand it, in Queensland. The orders made were that the child the subject of the proceedings live with the mother, that she have sole parental responsibility for the day-to-day care, welfare and development of the child, that the father be restrained from removing the child from South Australia and that the father file and serve responding documents, and also, importantly, that the parties attend family dispute resolution. The case was then adjourned to 14 May 2007.
I note that the father complied with the order for the filing of responding documents, as I have already indicated. Then, on 14 May 2007 the father again appeared by way of telephone link‑up and Ms Droulias appeared for the mother. Orders were made, until further order, that the child live with the mother, restraining the father from removing the child from South Australia, for the father to communicate with the child at times to be agreed and subject to the child’s wishes and orders were made in relation to parentage testing. That was an issue raised by the father in his response. There was also a further order made for the parties to attend dispute resolution on 16 May 2007.
On 16 May 2007 the father and the mother attended mediation via a telephone link-up. The mother's affidavit that is before me tells me that it was agreed as to where the child would live and as to the child spending time with the father. The details of that are not in the affidavit, but Ms Droulias has told me from the bar table that the terms of the agreement were that the child remain living with the mother and that the father have telephone communication with the child on the basis of him telephoning when he was able to.
Subsequently the father did have sporadic telephone communication with the child up until Christmas 2007 but since then there has been none because he has not telephoned the mother or the child. I note, separate to that, that the father has not in fact seen the child since separation, which was in 1996.
The case next came before Registrar Paxton on 29 July 2008. The father did not attend, it was noted that the mother would consider proceeding on an undefended basis on the next occasion, and the matter was adjourned to 16 September, with the court to notify the father of that listing.
The Court sent a letter to the father, and on 16 September 2008 the court officer telephoned the father prior to the hearing and spoke to him. In Court, the court officer telephoned the father again but the call went to a message bank.
In relation to the issue of parentage testing I note that that has not in fact taken place. The father was to bear the cost, and the mother's solicitor attempted to ascertain from the father where he proposed to have the parentage testing undertaken and have him secure payment for it, but, I am told by Ms Droulias, nothing further was done by the father about that.
On 16 September, in the circumstances that were presented to the Registrar, she made an order that the response filed by the father on 9 May 2007 be struck out for want of prosecution. The matter was then adjourned to today to be heard as an undefended hearing on the mother's application. The mother was ordered to file an amended application if so advised and she was also ordered to file an affidavit regarding the present care arrangements for the child.
The father was advised by the court, by letter, of the orders made on 16 September 2008 and he was advised of the undefended hearing listed for today. However, when the matter was called on today the father did not appear. There has been no communication from him, and no request by him to attend this hearing by way of telephone link, for example. On that basis I am prepared to proceed to deal with this matter on an undefended basis as ordered by the Registrar on 16 September.
In terms of the orders sought, there is of course the formal application still before me of 5 March 2007, but the wife's counsel has handed to me a minute of order which sets out the orders that she seeks today. They are that all previous orders be discharged, that the child live with the mother, that the father be restrained from removing the child from the State of South Australia, and that the father spend time with the child as agreed between the parties. In submissions though Ms Droulias has indicated that her client would also seek an order that she, the mother, have sole parental responsibility. Indeed that is an application made in the Application for Final Orders.
Factual Background
The mother was born in April 1970 in South Australia and is now aged 38 years. The mother is aboriginal. The mother’s mother (now deceased) identified with a Northern Territory tribe, while the mother’s father identifies with a South Australian tribe.
The father was born in July 1976 and is now aged 32 years.
The parties met in 1992 in South Australia and the father moved into the mother’s home.
The mother alleges she suffered a miscarriage in 1994 after the father assaulted her.
The mother alleges the father was abusive to her during their relationship.
The child was born in June 1995 and is now aged 13 years. The mother was diagnosed with post partum depression following the child’s birth and she was voluntarily admitted to F Hospital.
The mother returned to work as a health care worker when the child was six weeks old. The mother’s aunt helped care for the child.
The parties separated in 1996. The father moved to Queensland shortly thereafter where he continues to live. The child remained in O in South Australia with the mother.
In 1999 the mother commenced employment with the South Australian public service. During her training the child remained in O with the mother’s sister.
In 2003 the mother became severely depressed following an incident in the course of her work and she was subsequently diagnosed with post traumatic stress disorder. The mother was unable to continue her employment and lodged a WorkCover claim.
The mother alleges in October/November 2004 she began receiving threatening telephone calls from the father and his partner, Ms E, with respect to child support payments and as a result she obtained a private telephone number. However, the mother alleges she still continued to receive harassing calls regarding the payment of child support.
In late 2004 the father sent a letter to the mother outlining that he wished to pay child support directly to the child and did not want to go through the Child Support Agency. The father also outlined that he wished to have contact with the child by way of letters, phone calls and visits.
In December 2004 the mother proposed that the father travel to South Australia to spend supervised time with the child. This did not occur.
In January 2005 the father, through his solicitor, requested a DNA test to establish his paternity of the child.
On or about the 14 June 2005 the mother asserts that the father’s partner threatened to take the child away from her.
In September 2006 the mother ceased to be on WorkCover and undertook employment training with a company in C. During this time the child was in the care of the mother’s cousin.
Following the completion of her training in December 2006 the mother was offered employment at P, which she declined due to allegations that she had neglected the child whilst she was away. The mother says she was told by the father that the principal of the O School had contacted him and advised him that the mother had left the child unattended. According to the mother, she was told by the father’s partner that she had contacted the police, welfare and Centrelink. The mother states she was advised by police at this time that the father had been making inquiries about her.
The mother commenced proceedings on 5 March 2007 and I have already outlined the procedural history of this matter since then in my introduction.
Evidence
The evidence that is before me comprises the affidavits of the mother, respectively filed on 5 March 2007 and 30 October 2008.
Current circumstances of the parties
The father has not filed any documents with the Court since May 2007. Therefore there is no evidence before the Court regarding his current circumstances.
In terms of the circumstances of the mother and the child, there is the mother’s most recent affidavit filed 28 October 2008 which addresses this issue.
The mother and the child live in O, where they reside in a rented three bedroom home.
The child attends the O School where he is currently in year 8. According to the mother he is well settled and progressing well. In the mother’s first affidavit she indicated that the child participated in extra curricular activities including horse riding, archery and football. In the mother’s most recent affidavit she says the child’s extra curricular activities include horse riding and motor cycle riding.
The child has a strong attachment to his maternal grandfather who takes the child camping and hunting in the bush. The maternal grandfather teaches the child about his cultural heritage and language, including fishing and hunting practices.
The mother currently works on a casual basis as a child care worker. The mother says that she is in good health, that her depression is well managed under the guidance of her general practitioner and she is not taking any medication. The mother is no longer required to attend counselling with a psychiatrist as her depression has stabilised. The mother is not in a permanent relationship.
The issues
Given that this matter is undefended and the only application before me is that of the mother, the issue which arises for my determination is whether the orders sought by the mother are in the best interests of the child.
The applicable principles
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975 (Cth). The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
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;
(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);
(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;
(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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order 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. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence 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 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
Section 60CC of the Family Law Act 1975
I do not propose to refer in detail to each and every one of the factors arising from a consideration of section 60CC of the Family Law Act but generally to address the relevant matters.
With respect to the first of the primary considerations under Section 60CC(2), on the mother’s evidence she has a close and meaningful relationship with the child. She has cared for the child since separation. While there is likely to be a benefit to the child in having a relationship with his father, as indicated previously, the child has had no relationship with his father since separation when he was only a few months old, other than very sporadic telephone communication, which has not occurred since Christmas 2007. The orders proposed by the mother provide for the father to spend time with the child as agreed, which would allow some form of relationship to develop between the father and child if the father chooses to be involved in the child’s life.
While the mother has made allegations of abuse by the father prior to separation in 1996, and allegations of verbally abusive and threatening behaviour since separation, there is insufficient evidence to establish that there is any need to protect the child from abuse, neglect or family violence.
Turning to the relevant additional considerations in subsection (3), there is no evidence before me regarding the views of the child other than the affidavit of the mother in which she states that the child has not asked to see or speak with his father.
I have outlined above the nature of the child’s relationship with his parents. Also relevant to a determination of the child’s best interests is the child’s relationships with other persons. I am told the child has a strong attachment to his mother’s extended family, but in particular his maternal grandfather, with whom he goes camping and hunting. It is his grandfather who teaches him about his cultural heritage and language.
The orders proposed by the mother provide for the father to be able to spend time with the child as agreed. I note that there may be some difficulty and expense involved if the father is to spend time with the child given that he lives in Queensland and the child in South Australia. However, this is not a new occurrence, the father has lived in Queensland for almost the entirety of the child’s life and the father has not seen the child since 1996. I am satisfied though that the father can maintain a relationship through telephone communication with the child if he so chooses. The mother says she has encouraged the child to contact his father by telephone.
With respect to the capacity of the parents or other persons to provide for the child’s needs, it is the mother’s evidence that she has always met the child’s needs and has cared for him full time since the child’s birth except when she was working. Whilst the mother has in the past suffered depression and post traumatic stress disorder, her depression is now managed under the care of her doctor and she is not taking any medication with respect to this. The mother is no longer required to attend counselling with a psychiatrist. The father has not cared for the child or been involved in his life since shortly after his birth, thus his capacity to provide for the needs of the child is unknown. I note the father has three other children, however.
The maternal grandfather also provides for the needs of the child through educating the child with respect to his aboriginal heritage. Related to this issue, subparagraph 60CC(3)(h) is relevant and recognises the child’s right to enjoy his aboriginal culture. The mother refers to the importance of the child knowing about his cultural heritage. The mother learnt about her aboriginal heritage, culture and language from her family and says this must be passed on to her son, so he in turn can pass it on to his own children. I am satisfied the orders proposed by the mother will not impact on this right and that the child will continue to benefit from learning and being exposed to this culture.
With respect to the attitudes of the parties to the child and the responsibilities of parenthood the mother has cared for the child since separation and says she takes her role as a parent very seriously. Conversely, the father has effectively failed to participate in any aspect of the child’s life since separation. Whilst the father has provided financial support for his son, he has not seen his son since 1996 and has now not had telephone communication with him for some 10 months. The father has not attended today to pursue his response despite being advised of the hearing. All of these factors lead to the unfortunate conclusion that the father has no interest in pursuing orders with respect to his son.
Parental responsibility
The mother sought an order for sole parental responsibility.
As indicated previously, when the Court makes a parenting order the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. That presumption does not apply though if the circumstances set out in paragraph 61DA(2) are met. Here there is evidence that the father has engaged in family violence and thus the presumption does not apply. However it is still necessary to consider what if any order I make for the parental responsibility of the child.
Counsel for the mother submitted that an order for sole parental responsibility was justified in the circumstances given that the father has not seen the child since separation in 1996, has only had sporadic telephone communication, which has not occurred since Christmas 2007, and has effectively “shown no interest” in the child’s life.
I raised with Ms Droulias, however, that while the father may not have played a role in the child’s life, he has recognised his responsibility to the child by continuing to pay child support.
I inquired of Ms Droulias if I was disposed to involving the father in the parental responsibility of the child, whether I should order that the parties have equal shared parental responsibility or make no order with respect to parental responsibility, in which case the default position of Section 61C would apply, namely that both parents will have parental responsibility for the child. Ms Droulias indicated she was in favour of no order being made. Section 61C provides:
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
In the circumstances I do not consider it is in the best interests of the child for the parties to have equal shared parental responsibility for the child given the father’s lack of involvement in the child’s life and failure to pursue orders in this Court. However, I also do not consider it appropriate to make an order for the mother to have sole parental responsibility for the child on the available evidence and given that the father continues to provide financial support for the child.
In the circumstances I have determined not to make any order with respect to parental responsibility. Therefore the default provisions of Section 61C will apply and both parents will have parental responsibility for the child.
As I have concluded it is not in the best interests of the child for the mother and father to have equal shared parental responsibility, I am not required pursuant to Section 65DAA to consider whether the child should spend equal or significant and substantial time with both of his parents. I again note the orders as sought by the mother provide for the father to spend time with the child as agreed and consider this is in the best interests of the child.
Conclusion
I am satisfied it is the best interests of the child to make the orders sought by the mother.
I certify that the preceding 64 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 6 November 2008.
Associate
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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