LEWIS & GASPER

[2016] FamCA 688

FAMILY COURT OF AUSTRALIA

LEWIS & GASPER [2016] FamCA 688

FAMILY LAW – CHILDREN – Best Interests – Where the father has not sought to spend any time with the children for some time – Where the mother realises the importance of the relationships between the father and children – Where the father declines to participate meaningfully in the children’s lives – Where the father’s engagement with the mother over important issues concerning the children has been inconsistent – Where the father does not participate in the litigation – Where the father does not demonstrate the same capacity to meet the children’s needs as the mother – Where the children are not exposed to risk of harm while in the father’s care – Where the mother proposes the children be supervised when with the father for fear he will withhold them – Discussion of orders to allow the father an opportunity to participate in the children’s lives – Where the mother seeks to relocate to Darwin – Where there is no certainty as to when the relocation will occur – Where the relocation will not impinge upon the children’s current relationships with the father – Orders provide for the children to spend unsupervised time with the father, depending on the proximity of his residence to the children’s residence with the mother – Where those orders are discharged if father does not comply on three successive occasions

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility – Where the father shows an inability to cooperate or compromise with the mother – Where the father withholds a child from the mother – Where the presumption of equal shared parental responsibility is rebutted – Order that the mother should have sole parental responsibility for the children 

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE

M v M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582
U v U (2002) 211 CLR 238

APPLICANT: Mr Lewis

RESPONDENT: Ms Gasper

FILE NUMBER: NCC 2688 of 2010

DATE DELIVERED: 19 August 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Rice More & Gibson Solicitors

Orders

1. All former parenting orders in respect of the following children (“the children”) are discharged:

   1.1B, born … 2005;

   1.2C, born … 2010; and

   1.3D, born … 2012.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Subject to Order 5 hereof, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   4.1Whilst ever the father lives within 300 kilometres of the mother and children:

   4.1.1On the second, fifth, and eight weekends of each school term, from 10.00 am Saturday until 4.00 pm Sunday;

   4.1.2For the first four days of the Autumn, Winter, and Spring school holidays, commencing at 10.00 am on the first Saturday and concluding at 4.00 pm on the fourth day thereafter; and

   4.1.3For one week each year, commencing at 10.00 am on 3 January and concluding at 4.00 pm on 10 January.

   4.2Whilst ever the father lives more than 300 kilometres from the mother and children:

   4.2.1For the first four days of the Autumn, Winter, and Spring school holidays, commencing at 10.00 am on the first Saturday and concluding at 4.00 pm on the fourth day thereafter; and

   4.2.2For one week each year, commencing at 10.00 am on 3 January and concluding at 4.00 pm on 10 January.

5. In the event the father does not comply with Order 4 hereof on three successive occasions, Order 4 is discharged.

6. For the purpose of implementation of Order 4 hereof:

   6.1The mother shall deliver the children to the father at the place nominated by her in writing at the commencement of the time to be spent by the children with the father; and

   6.2The father shall deliver the children to the mother at the same place at the conclusion of the time spent by the children with the father.

7. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by “Skype” internet communication program (or telephone if Skype is unavailable) with the father at 5.00 pm (local time for the mother and children) on each of the following occasions, for which purpose the father shall contact the children on the telephone number or internet connection provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number or connection at that time:

   7.1Each Saturday;

   7.2The children’s birthdays;

   7.3The father’s birthday;

   7.4Father’s Day; and

   7.5Christmas Day.

8. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

9. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

10. The mother shall authorise and request the principal of any school or pre-school attended by the children to provide to the father, at the father’s expense, copies of all school and pre-school reports and photograph order forms relating to the children.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewis & Gasper has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2688 of 2010

Mr Lewis

Applicant

And

Ms Gasper

Respondent

Ex Tempore

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the three children of the applicant father and respondent mother.

2. The father commenced the proceedings seeking parenting orders in respect of the children, but later withdrew from the proceedings. In February 2016, he filed a Notice of Discontinuance and then, in April 2016, he orally informed the Court he no longer intended to contest the proceedings and would disengage from them.[1] The procedural orders of the Court, foreshadowing determination of the proceedings in his absence,[2] were forwarded by the Court to the father’s last known address so he cannot complain about any procedural unfairness.

   [1] Notation A made on 29 April 2016

   [2] Notation B made on 29 April 2016

3. The mother, however, still wants the proceedings determined and orders made in respect of the children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). In essence, she wants sole parental responsibility for them and for them to live with her, but for them to spend some supervised time and to communicate with the father.

Application and evidence

1. The mother prosecuted the application contained within the Amended Response she filed on 26 May 2016.

2. In support of that application, she relied upon:

   (a)The affidavit she filed on 15 March 2016;

   (b)The affidavit she filed on 28 April 2016;

   (c)The affidavit she filed on 16 August 2016; and

   (d)The affidavit of her solicitor filed on 16 August 2016.

3. The affidavit of the mother’s solicitor simply proved the father had been served with the mother’s Amended Response filed on 26 May 2016 and was therefore fully aware of the relief still sought by the mother.

Short history

1. The mother is East Asian and came to Australia in 2001 on an academic scholarship to an Australian university.

2. The parties began their relationship in 2001, married in 2002, and finally separated in July 2015. During that period they lived in both East Asia and Australia.

3. Their three children were born in 2005, 2010, and 2012 and are now respectively aged eleven, six, and four years. The eldest child was born in East Asia but the younger two were born in Australia.

4. Although the parties argued over the residence of the eldest child following their separation, the eldest child has lived with the mother and his siblings since March 2016.[3] That arrangement was confirmed by interim orders made on 29 April 2016, providing for the mother to have sole parental responsibility for the children, for the children to live with her, and for her to decide if and when the children spend time or communicate with the father. The father has not sought that the children spend any time with him.

   [3] Mother’s first affidavit, paras 266-267; Mother’s second affidavit, para 1

5. Both parties remain resident in the same country township of E Town, NSW,[4] but it is the mother’s express wish to relocate with the children to Darwin, NT at the end of this year.[5]

   [4] Notation A(d) made on 29 April 2016

   [5] Mother’s first affidavit, para 268

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. There can be no doubt about the benefit the children derive from their meaningful relationships with the mother. The two youngest children have lived with her continuously and, but for a period of months between July 2015 and March 2016, so has the eldest child. The father must accept the children benefit from their relationships with the mother, for otherwise he would not acquiesce to the continuation of that arrangement.

2. The nature of the children’s relationships with the father is quite different. Following the father’s return of the eldest child to the care of the mother in March 2016, the father has not sought to spend any time with any of the children. The only communication he initiated was a text message he sent to the mother’s mobile telephone for the middle child on her birthday in 2016.[6]

   [6] Mother’s second affidavit, para 2; Mother’s third affidavit, paras 2-3

3. Notwithstanding the hiatus in the children’s relationships with the father, the mother realises the significance of them to the children. She understands it is important for the children to have strong relationships with both parents,[7] though the father cannot be practicably compelled to allow the children to spend time with him against his will.

   [7] Mother’s first affidavit, paras 230, 272

4. Despite the father’s present disinclination to participate meaningfully in the children’s lives, the orders made by the Court should ensure the opportunity for the father to re-engage with them. It is axiomatic that children benefit from the development of good relationships with both parents, provided the relationships are not abusive (U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76).

Section 60CC(2)(b)

1. Shortly after these proceedings were commenced, the mother deposed to past suicide attempts by the father, which were said to have occurred between 2001 and 2010 while the parties’ marriage was still intact.[8] Assuming that evidence to be correct, it remains unclear why it was adduced. The mother did not contend it to be the evidentiary foundation for a finding that the children are at unacceptably high risk of harm by exposure to family violence committed by the father. The only reason she proffered for the children to be supervised in the father’s care in the future was her fear he would again withhold one or more of them from her.[9]

   [8] Mother’s first affidavit, para 215

   [9] Mother’s third affidavit, para 8

2. The mother did not contend any of the children were in need of protection against any form of physical or psychological harm that might result from their subjection or exposure to any abuse, neglect, or family violence.

Children’s best interests – additional considerations

1. The evidence adduced in these proceedings was reasonably concise and did not address every factor prescribed under s 60CC(3) of the Act which might affect decisions about the children’s best interests. Consequently, it is only necessary to address those factors the mother considered to be relevant to the outcome (SCVG & KLD (2014) FLC 93-582 at [79]-[91], [98]-[103]).

2. The most significant issue is the father’s voluntary disengagement from the children’s lives, which reflects poorly upon his parenting capacity and attracts attention under several statutory factors (ss 60CC(3)(b), (c), (f), (i)).

3. For reasons known only to the father, he has all but withdrawn from the children’s lives since March 2016, notwithstanding he still lives in the same country township as the mother and children. For the period between July 2015 and March 2016, when the eldest child lived with him, he was similarly withdrawn from the lives of the two youngest children.[10]

   [10] Mother’s first affidavit, para 242

4. The father’s engagement with the mother over issues of importance to the children has been puzzlingly inconsistent. The mother’s numerous approaches to the father about the baptism of the two youngest children and re-arrangement of their financial affairs with Centrelink and Medicare have been met with impassive silence by the father,[11] yet the father has provided her with birth certificates and passport applications at her request.[12]

   [11] Mother’s first affidavit, paras 252-256; Mother’s second affidavit, para 4; Mother’s third affidavit, para 9

   [12] Mother’s third affidavit, para 13

5. The father has plainly failed to take every opportunity to participate in important decisions affecting the children’s lives and forsaken the opportunity to spend time and communicate with them. His relationships with them will likely deteriorate as a consequence. In all likelihood, some deterioration will have already occurred, for which he only has himself to reproach. The father has not participated in the litigation to explain his conduct, but the most probable inference is that he prioritises his own needs above the children’s. Whatever the explanation, he has not demonstrated the same capacity as the mother to meet the children’s emotional needs, nor does he demonstrate the same positive attitude as the mother to the responsibilities of parenthood.

6. For some time it has been the mother’s explicit intention to relocate her residence with the children from E Town, NSW to Darwin, NT. Her reasons are clear and understandable: she has no family support in E Town; she has relatives and close friends in Darwin; her past employment history suggests her employment prospects are better in Darwin; and it will be considerably cheaper and easier for her to travel between Darwin and East Asia to visit family.[13]

   [13] Mother’s first affidavit, paras 269, 270, 273, 274; Mother’s second affidavit, para 5

7. It will, of course, be more difficult for the father to maintain face-to-face interaction with the children if they live in Darwin instead of E Town, where he apparently still lives, but by his own choice he is already eschewing the opportunity to have such face-to-face interaction. Consequently, the mother’s voluntary imposition of much greater distance between the residences of him and the children will not cause any greater impingement upon their existing filial relationships. On the evidence adduced, there is no warrant to restrain the mother’s choice of place of residence for herself and the children.

Conclusions and orders

1. The presumption of allocation to the children’s parents of equal shared parental responsibility for them is rebutted (s 61DA(4)). The father’s inability to consistently consult, cooperate, and compromise with the mother is best exemplified by his past decision to withhold the eldest child from the mother for about nine months and his wilful failure to respond to the mother’s requests of him to cooperate over such things as the youngest children’s baptism and re-organisation of the family’s financial entitlements from Centrelink and Medicare. The mother should have sole parental responsibility for the children, since there is no dispute they should live with her.

2. The mother explained how her relocation with the children will likely occur at the end of this year.[14] She did not propose that she be restrained from changing the children’s residence until then so, absent complaint from the father about it, there is no justification for the imposition of such an injunction. However, it is as well that the mother understands the move might cause some short-term instability for the children and so it would be advisable for any such move to occur at the end of the current academic year so as not to disturb the children’s sense of security at school or pre-school.

   [14] Mother’s third affidavit, para 10

1. The vexed question was the manner in which the children will spend time with the father (if he deigns to allow them to do so), regardless of whether they live close to or far from him.

2. The mother proposed that any face-to-face interaction between the children and the father in the future should occur at a contact centre.[15] The reason for that proposal was not satisfactorily explained and it suffered from incongruence with the evidence the mother adduced.

   [15] Amended Response 26/5/16, Orders 7-8

3. During the parties’ relationship, there were occasions when the children were left in the sole care of the father for extended periods. Immediately following their separation, the mother acquiesced to the children, either individually or collectively, spending unsupervised time with the father.[16] From July 2015, the father withheld the eldest child and left the two youngest children with the mother. The mother did nothing to redress that situation. These proceedings were commenced by the father months later in January 2016. In the Response the mother filed in March 2016, she proposed that all the children be re-united in her residential care, but that they spend unsupervised time with the father. In the affidavit she simultaneously filed, she proposed the children spend unsupervised time in the father’s care.[17]

   [16] Mother’s first affidavit, paras 227-231

   [17] Mother’s first affidavit, para 272

4. On the mother’s own evidence, nothing has since transpired which could be rationally posited as a reason for the imposition of supervision upon any face-to-face interaction between the children and the father. The mother’s only stated concern was her fear the father may again withhold one or more of the children. Of course, if that occurred, she could easily enforce orders that provide for the children to live with her.

5. The children are not exposed to the risk of harm in the father’s care and the desirability of them deriving benefit from their formerly meaningful relationships with the father is the only primary consideration of relevance in these proceedings (s 60CC(2)(a)). The orders will, therefore, provide for the children to spend unsupervised time with the father. The amount of time they are able to spend with him will be determined by the proximity of their residences. An arbitrary radial distance of 300 kilometres is used to delineate that proximity. The mother proposed radial distances of between 300 and 350 kilometres,[18] but gave no evidence to justify her proposals. Regardless, the distance of 300 kilometres is about the limit of a comfortable road journey within one day.

   [18] Amended Response 26/5/16, Orders 7-8

6. The frequency and duration of the children’s visits with the father are tempered by the current circumstances, given the father cannot bring himself to allow the children to visit him even though they live in the same township. The children’s ongoing face-to-face interaction with the father will be conditional upon him making himself available for that purpose. If, as is currently occurring, the father fails to meet and receive the children on three successive occasions then the order making provision for them to spend time with him will be discharged. The children cannot be left to expect visits with the father and then be perpetually disappointed by his failure to collect them. Their psychological health might be irreparably damaged by such an eventuality.

7. Although the mother still harbours a desire to move with the children away from E Town to Darwin, she may change her mind. In the absence of certainty about if, when, and where the mother will relocate with the children, the orders leave the choice of changeover venue to her.

8. The mother proposed quite reasonable orders about electronic communication between the children and the father.[19] Orders to that effect are made.

   [19] Amended Response 26/5/16, Orders 9-10

9. The mother proposed other orders designed to preserve harmony in the family and to keep the father appraised of the children’s progress.[20] Orders to that effect are also made.

   [20] Amended Response 26/5/16, Orders 4-5

10. The mother sought orders concerning the father’s cooperation in the procurement of passports for the children, their international travel, and the return of the eldest child’s birth certificate.[21] There is no need to make such orders since she has sole parental responsibility for the children and she now holds the eldest child’s birth certificate and executed passport applications.[22] The mother reasonably wants the children to enjoy connections with their maternal family members in East Asia.[23] On the available evidence, there is no reason to impede their ability to do so.

    [21] Amended Response 26/5/16, Orders 13-14

    [22] Mother’s third affidavit, para 13

    [23] Mother’s first affidavit, para 275

11. On the evidence placed before the Court, the orders set out at the commencement of these reasons meet the children’s best interests.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 August 2016.

Associate: 

Date:  22 August 2016