Leven and Waite

[2011] FamCA 147

FAMILY COURT OF AUSTRALIA

LEVEN & WAITE [2011] FamCA 147

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Leven

RESPONDENT: Mr Waite

FILE NUMBER: MLC 2959 of 2010

DATE DELIVERED: 23 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Womens’ Legal Service Victoria

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lampe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That there be orders of the Court in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That all outstanding applications are otherwise dismissed.

3. That pursuant to s.65DA(2) and s.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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2959 of 2010

Ms Leven

Applicant

And

Mr Waite

Respondent

And

Mr Lampe
Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is a most unusual application involving three children, X who is now 15 years of age, Y who is 13 years of age and Z who is eight years of age.  The children had been effectively split into two households:  X with her mother, and the two boys with their father subsequent to separation.  It does not matter now why that was so, but last year there was a particular night where the two boys, fortuitously, were not staying with their father when his house was attacked by a group of men, one of whom it was asserted by the father, was the mother’s stepfather.

2. I understand that is a contentious issue, although it seems common ground that Mr L has been charged with various criminal offences and there are criminal proceedings pending in the Victorian Courts.  As a result of that attack, the father and his partner along with the two boys, moved from the home in which they were living to a secure location unknown to the mother.  Late last year, this Court dealt with some contravention issues and other parenting issues, and at that time, I was uncomfortable about the fact that the two boys were effectively excluded from having any relationship with their mother by virtue of the removal of the children to the secure location.

3. The father had declined to participate in any proceedings and certainly not with the preparation of any material that might have assisted the Court.  The matter came to a head when I directed that the father attend the Court with the children on 17 December last year.  I gave reasons at that stage as to why it was appropriate for the two boys to join their sister and live with the mother.  I do not propose to reiterate those reasons, save that I had difficulty in balancing the protection of the children and the question of their entitlement to have an ongoing relationship with their mother.  Those two pillars, as they have sometimes been described in section 60CC of the Act, were very much in conflict.

4. To a very large degree, the father took the matter out of my hands by indicating that it was an “all or nothing” situation to the extent that if I was contemplating making an order that the boys spend time with their mother, she could have them.  He has, unfortunately for the boys’ sake, been true to his word and the only contact that has occurred between the boys and their father since 17 December has been a telephone discussion for 10 or 20 minutes on Christmas Day.  The father made it abundantly clear on 17 December that he was serious about his safety and that of his partner and her child or children, and he pointed the finger very much at the stepfather of the mother as the instigator of the problem.  No doubt in the fullness of time, the law will work out just exactly what did happen and who was responsible.

5. One of the orders I made on 17 December was that Mr L, the stepfather of the mother, in other words the grandfather of these children, not be brought into contact with them pending the determination of the criminal proceedings.  The independent children’s lawyer has, I think, properly today asked for that order to be varied to indicate that upon the conclusion of the criminal proceedings against Mr L, the mother be restrained by injunction from leaving the children unsupervised in the company of Mr L.  It is a draconian step to preclude a grandfather from spending unlimited and unrestricted time with a grandchild, but as I have indicated in discussion, I was concerned about the fact that the assertion against Mr L was that he has association with a motorcycle group and there are suggestions of involvement that might involve contact with the police.

6. I have no intention of casting any aspersions on Mr L’s character.  I have no intention of being seen to be concluding that he was involved in any criminal proceedings.  My only intention is to be concerned for the welfare of these two boys, that they are not put into a position where they are confronted by something that would obviously be terrifying for them, whether it be association with violence or criminal activity of motorcycle groups or the intervention of police.  As I said, it was fortuitous that they did not witness what must have been an horrendous event last year when the father’s house was, to use the expression, “run through”.

7. I have already previously articulated the need for the children to have a relationship with both parents and the proposed orders of the mother are that the children have time with their father as agreed with her and that there be the usual arrangement that the children be able to contact the father by telephone, cards, letters, email and other communications.  I am satisfied that the mother’s evidence shows that that is already happening.  She seems to be the one who orchestrated the telephone contact on Christmas Day and that happy medium, the internet, seems to be being used by Y to communicate with his father’s partner and that is being subjected to the supervision of the mother.

8. I take into account that Y is 13 years of age and would no doubt have an interest in the activities of his father. 

9. Any order of a parenting nature must be made on the basis that it is in the best interests of the children.  Section 60CC requires me to consider all of those matters.  There is nothing in any of the material I have read that would indicate that the mother is anything other than an appropriate parent regardless of what I had read about why the children were left in the father’s care previously.  I am satisfied that she is an appropriate parent in terms of responsibility and capacity to care for these children.  The evidence today suggests that the children have settled and are doing well.  I am unable to make any finding in relation to the father’s capacity and responsibility having regard to the fact that, perhaps for good reason, he has chosen to exclude himself from the children’s life on a physical basis.

10. I am satisfied in those circumstances that it is appropriate to make orders as outlined by the mother and the independent children’s lawyer.  One of the orders sought by the mother is that the father be restrained by injunction from consuming or being under the influence of any illicit substance during a period of 24 hours prior to and at any time whilst the children are in his care if that occurs in the future.  I have some reservations about that having regard to the fact that the evidence indicates that the mother was aware of the father’s drug usage since he was 14 years of age and it was a regular feature, presumably, in their household.  Again, it is not my function to indicate the policy of the community in relation to drug usage including marijuana.  My function is to determine what is best for these children.

11. The evidence is that the father lacked interest in the children when he had been using marijuana, and in addition to that, was aggressive when driving a motorcar affected by it.  The community’s views about the irresponsible use of marijuana are well known and that it has a severe impact on vulnerable children including children of the age of X and Y.  I think it is appropriate in these circumstances to make an order;  to the extent that it can be enforced is another issue, but it must be brought home to the father that if he is going to be a responsible parent, he cannot put the children at risk by using any illicit substance.

12. When I make a parenting order, the Act requires me to start from a presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them. 

13. There are two bases upon which that presumption is rebutted:  the first is that the orders are of an interim nature and there cannot be any findings and the second is that it is not in the best interests of the children to make an order.  The second of those applies here. 

14. There is no communication of any nature about the children between the mother and the father.  I make no comment about whether that is a good thing or a bad thing having regard to the father’s chosen position to protect himself and his new family.  However, it is clear that there cannot be a sharing of the responsibility between the father and the mother in the way that section 65DAC would anticipate.  In those circumstances, it seems appropriate to make an order that the mother have the sole responsibility for making decisions about the welfare of the children.  The mother, to her credit, has indicated that she would be prepared to consent to an order that she will make a reasonable attempt to consult the father about her decisions relating to the major long-term decisions about children and I propose to make orders in those terms as well.

15. I have an application by the mother that the father pay her costs of today and of 17 December when I reserved them.  Section 117 of the Act provides that each party bears their own costs unless there are circumstances justifying an order to the contrary, and if, in fact, that occurs, then the Court must consider the matters set out in section 117(2A).  The difficulty I have with that order is that the evidence is lacking in relation to the financial circumstances of the father, in particular.  However, it seems to me that he has had ample opportunity to sort the problem out and the proceedings on 17 December were, in fact, brought about by his refusal to have any part in the proceedings.  I think I adopted a position at that stage that his refusal was unreasonable having regard to the fact that it involved children.

16. In this case, there are justifying circumstances for making an order for costs.  I have some dilemma about the financial issues in section 117(2A) but that is only one of the factors that the Court has to take into account.  The Court has to also consider the questions of conduct, whether somebody has been wholly unsuccessful and also the legal aid considerations.  This is a case in which an order for costs should be made.  The quantum sought is $880 being the brief fee for 17 December and a very significantly reduced brief fee for the day of $400.  It seems to me that in the circumstances that is well below what the scale fees might have been sought and it is appropriate to make an order that the father pay the mother’s costs of $1280.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 February 2011.

Associate: 

Date:  4 March 2011