Levy and Howard

[2009] FamCA 664

FAMILY COURT OF AUSTRALIA

LEVY & HOWARD [2009] FamCA 664

FAMILY LAW – CHILDREN – Final orders – Undefended hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Levy

RESPONDENT: Mr Howard

INDEPENDENT CHILDREN’S LAWYER: Philip Theobold, Barrister-at-Law

FILE NUMBER: HBC 1335 of 2007

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Justice Fowler

HEARING DATE: 27 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Theobold by consent

RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Mr Theobold

Orders

THE COURT NOTED THAT:

A.       The matter was called and there was no appearance by the father.

B.The mother wished to seek on a final basis the orders she sought in her Application in a Case filed 19 March 2008.

C.       The following material has been read in the proceedings:

a.        Affidavit of the mother filed 1 November 2007

b.        Application in a Case filed by the mother on 19 March 2008

c.        Affidavit of the mother filed 19 March 2008

d.        Counselling Report dated 1 July 2008

e.Confidential Court Report signed by Ms S dated 14 December 2007.

D.The father is not available for cross examination on his affidavit filed 8 May 2008 and is not read in the proceedings.

AND IT IS ORDERED THAT:

1. The father’s Response to an Application for Final Orders filed 8 May 2008 is dismissed.

2. The matter proceed as an undefended hearing.

3. All existing Orders are discharged.

4. The mother have sole parental responsibility for the child … born

   
   

   … August 2004.

5. The child live with the mother.

6. The child spend time with the paternal great grandmother from Friday, 10.00 am until Sunday, 4.00 pm, each alternate weekend.

7. The child spend no time with the father presently.

8. The father’s right to apply for orders in relation to spending time with the child is reserved.

9. 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.

10. On the oral application of the Independent Children’s Lawyer, the appointment of the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 1335  of 2007

MS LEVY

Applicant

And

MR HOWARD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Being no appearance, I dismiss the father's Response to the Application for Final Orders.

2. I note the mother wishes to proceed on her Application in a Case as to the orders she seeks on a final basis.

3. I note that I have read the affidavit of the mother filed on 1 November 2007.

4. I note that I have read her Application in a Case filed on 19 March 2008.

5. In the absence of the appearance of the father I dismiss his Response to the Application in a Case dated 8 May 2008.

6. I read the affidavit of the mother filed on 19 March 2008.

7. I note the father is not available for cross‑examination on his affidavit filed on 8 May 2008 and accordingly do not have regard to it.

8. I read the counselling report dated 1 July 2008 and the report of 14 December 2007 signed by Ms S. 

9. The proceedings before the court seek orders with respect to the parenting of the child, a son, born in August 2004, who is a child of the relationship of Ms Levy, the mother, and Mr Howard, the father.  The child and the circumstances under which the child has been cared for has come under notice since 2004, some two years after his birth. 

10. The mother seeks orders that the child live with her and that all existing orders be discharged and that she have sole parental responsibility for the child;  and the child spend time with his paternal grandmother from Friday, 10.00 am until Sunday 4.00 pm each alternate weekend;  and that there be no order presently made for the child to spend time with his father, but that that issue be reserved for further determination on an application if made by the father.

11. The court has had the benefit of the counselling report referred to and it is a report of observations and summarises some considerations.

12. The reporter, who has provided that document, recommends that:

    Prior to any future contact between [the child] and his father, [the father] will need to demonstrate to [the child] that he is a protective and safe parent.  Despite [the child] feeling sad that his father is sick he has consistently demonstrated that he and those around him feel unsafe in his presence.  [The child] should not be required to have contact with [the father] whilst he is incarcerated. [The child’s] developmental stage is very concrete and he perceives that people who have done something bad are in gaol.  If [the child] were required to go to gaol he would internalise that he had done something bad also. 

    [The child] is not of an age where he can conceptualise gaol as a place where he might feel safe.  The future contact between [the father] and [the child] should it be deemed appropriate be conducted in a controlled environment such as the Children's Contact Service or some other mutual body.

    Those statements, I summarise from that report.

13. 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 interest of the child as the paramount consideration.  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.

14. 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.  I will also be guided by section 60B which sets out the objects of the part of the Act dealing with children and the principles underlying it. 

15. 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. 

16. Section 61DA requires that when making a parenting order in relation to a child the court must apply a presumption that 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:

    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.

17. Given the current place of accommodation of the father in gaol, the position of the mother, the history of violence and the allegation contained in the mother's affidavits, I find that it would be impossible for these parties to cooperatively discharge, at this time at least, the joint exercise of parental responsibility and I decline to make such order.  I make instead an order that the mother have sole parental responsibility for the child.

18. 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 are to have equal shared parental responsibility.  Since I have declined to make that order I am not obliged to take those matters into account.

19. I do have to take into account the matters referred to in section 60CC for the benefit of the child having a meaningful relationship with both of the children's parents.  Certainly in the general run of cases such benefit is obvious and would be expressed as a trite comment.

20. In this particular case, however, given the circumstances in which this child has lived his life as set out in the evidence before me, and the difficulties of both his mother and father in parenting, and the matters that I have earlier referred to, it does not seem presently possible, without danger to the child, that he have a relationship with his father on a face-to-face basis. 

21. It is hoped of course that times will change and that the father's position will change and the circumstances will be such that this child may benefit from a relationship with his father, but at the present time I cannot say that he would benefit from seeking to establish that relationship at this time.

22. Accordingly, I made the order, that I hereafter make, that the child spend no time with the father.

23. There is a need to protect this child from physical and psychological harm or from being subjected to or exposed to abuse, neglect, or family violence.

24. The position in this matter is that there is a history of violence.  It is clear that the child will not benefit by currently visiting his father and the evidence is, from the Family Consultant, that such an arrangement would provide psychological danger to the child in the form of damage to his self-esteem.

25. The child is too young to express any particular view except that I do note that he is inferentially expressing a view that going to gaol is a bad thing and that bad people go to gaol.  I do not see that as being an expression of view that I should take into account solely as a determining matter.

26. It is clear that the mother has had the primary relationship with the child.  Although her parenting has been at times less than perfect she appears at the present time to be the best alternative available for this child, and given that position and the relationship of the child with her, I believe that it is important that the child be placed in her care and vital in his interest that he be so placed.

27. I note that the mother seeks an order that the paternal grandmother, who has played some part in the child's life, should be a person with whom the child has a relationship.  I commend her for seeing the importance of a child having access to his history and it seems to me that on the evidence before me that order is justified.

28. It is noted that I am obliged to take into account 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.

29. Whilst in the present circumstances the mother seeks no contact between the child and the father and does not have a current willingness for that to take place, that is justified otherwise by the evidence, and in reserving the father's position she adopts a perfectly proper position in relation to facilitating that contact at some time in the future should circumstances change.

30. It seems to me that in taking into account the likely effect of any changes in the child's circumstances I would take into account that the child is living in a settled environment and movement from that environment would be likely to cause insecurity and the other problems referred to in the counsellor's report.

31. I do not see that the current situation poses a practical difficulty of contact with the father except to the extent that he is currently in gaol. 

32. Whilst, as I say, the mother's parenting has not been perfect, it does seem as though she is able to provide for the needs of the child including the child's emotional and intellectual needs. 

33. The child has, apart from his unsettled background to which I have referred and which is referred in the reports, no specific need for any particular cultural tradition to be preserved. 

34. It seems that the mother has demonstrated to a degree which is satisfactory a positive and appropriate attitude to the responsibilities of parenthood.  Whilst she has had her own difficulties she has, it appears, moved a long way along the path of resolving all those.

35. I have taken into account the family violence which is asserted in the documents and which is not before me gainsaid. 

36. I believe that the order I make, whilst allowing of the father to make an application to the court for further contact, is the best order that can presently be made and least likely to be leading to further litigation.

37. I think that the conduct of the parties since the date of separation is a matter which was set out in the affidavits and I have referred in part to the mother's efforts to provide proper parenting the child and the environment in which this child can flourish;  that there have been some failures in the past would be something which I hope is well behind her and it does seem that that is so. 

38. Balancing the matters set out in section 60CC, and the evidence referred to above, I concluded that the orders I propose will operate to the best interests of this child for the reasons specified above. 

39. I therefore make orders in accordance with the orders sought by the mother in her application in the case filed on 19 March 2008. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  27 January 2009