Lindell & Ranteri
[2010] FamCA 52
•27 January 2010
FAMILY COURT OF AUSTRALIA
| LINDELL & RANTERI | [2010] FamCA 52 |
| FAMILY LAW – CHILDREN – Parental responsibility |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Lindell |
| RESPONDENT: | Mr Ranteri |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 2638 | of | 2008 |
| DATE DELIVERED: | 27 January 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 27 JANUARY 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS WEINER |
| SOLICITOR FOR THE APPLICANT: | BAYSIDE SOLICITORS |
| THE RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR GRIGG |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | PERRY WESTON |
Orders
That the mother have sole responsibility for the major long-term issues concerning the children N born … July 1996, B born … July 1996 and E born … September 1998 subject to the following paragraph.
That prior to making any major long-term decision concerning the children, the wife advise the husband in writing in a communication book of her proposal.
That the husband have seven (7) days after receiving the communication book to respond to the wife’s proposal.
That if the wife does not thereafter agree with the husband’s proposal, she shall notify the husband of her decision and give written reasons why she has rejected the husband’s proposal and she may thereafter implement her decision.
For the purposes of the handover of the children under orders of the Court made 27 January 2010, the wife shall deliver the children to the husband at McDonalds at A at the commencement of all periods and the husband shall return the children to the wife at the conclusion of such periods at the same location.
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 Lindell & Ranteri is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2638 of 2008
| MS LINDELL |
Applicant
And
| MR RANTERI |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The parties resolved most of their parenting dispute about N and B both born in July 1996 and their brother E born in September 1998. Orders for the husband to recommence face to face time with those children were made by consent of the parties and with the endorsement of the Independent Children’s Lawyer.
The two issues argued and to which these reasons relate were:
(a) The question of equal shared parental responsibility; and
(b)Who was to do the travelling and for what portions for the contact between the husband and the children.
A further issue concerning property remains unresolved as well. The position adopted by both parties was far from satisfactory but in the end, each asked me to leave that issue alive. The wife’s position was that she wanted 75 per cent of the “total superannuation”. She did not know what that meant in dollar terms. When the case was before me in November 2009, little attention was paid to property. When the matter was mentioned on 22 December 2009 and again the following day on 23 December 2009, it was clear that no attention had been paid to it. The solicitor for the wife indicated that his funding only related to parenting matters and I expressed my complete dissatisfaction with that explanation at the time. To make matters more difficult, the Court was then advised that the wife was about to or had just entered into, bankruptcy.
Between 22 December 2009 and the commencement of this hearing, nothing occurred which could satisfy me that an attempt was made to address the property issue.
Counsel for the wife indicated that she had no instructions about property. In fairness, she endeavoured to obtain them but later indicated to me that the husband did not want to discuss matters.
The husband had done nothing about property matters either. His initial position was that he “didn’t give a rat’s backside” about the matter. After lunch however that was altered to the fact that the wife had done many things such as taking money and giving it to her lawyers as well as kept his personal property such as a pocket knife. He said it was agreed that whilst the wife may not now have any property, any such entitlement would be offset against his superannuation.
There was no indication of what the superannuation trustees position was in respect of any such splitting order. No orders such as those that would normally be made in a superannuation splitting arrangement had been filed, served nor provided to the trustee of the fund.
In the circumstances despite considerable reservation about wasting the Court’s time, I propose to keep the issue of property alive but to adjourn the matter to a registrar on a date to be fixed. The parties will be given sufficient time to get their material together. I direct that the Registrar will not list the matter for final hearing as a part-heard matter before me until such time as he or she is satisfied that the parties have done all of their necessary investigations, prepared their proper affidavit material in support of any application they seek and set out with precision exactly what orders they propose to ask the Court to make.
The remaining issues therefore relate to parenting responsibility and the question of where the handover point was to be concerning the children.
The wife’s position was that the husband should do all of the travel. When pressed however, her counsel conceded that she could compromise if the handover point was McDonalds in A by which she meant the building at the corner of … and … in A.
The husband’s position was that he wanted an “equal sharing” of the travel. Despite a number of attempts to elicit exactly what that meant, his view was that each party should do an equal arrangement. The Independent Children’s Lawyer’s position was that somewhere in the A area was appropriate and both parties had access to that area without significant inconvenience.
The wife may now be receiving child support but it is clearly nominal. The husband said that he was not working and as such, not only could not afford to pay child support nor could he afford to waste money on travelling backwards and forwards for the arrangements that had been agreed. The absence of finance in the hands of the husband does not ameliorate the wife’s cost of having to drive the children to any location. The wife has the greater day to day burden of caring for the children and I see no reason why she should not have that burden lifted on an issue such as this where the husband is making little contribution to the financial support of the children. The husband did not provide a financial statement and I am not in a position to judge his financial position. However, he gave no indication of how the future would be addressed other than he wanted the travel “shared”. It seems to me in the circumstances that as a matter of discretion, I ought to give the wife some latitude because of her greater parenting responsibility and the fact that she will no doubt be running the children round for most of the time. In so far as the husband has limited funds, he has had no obligation over the last twelve months to travel and in those circumstances, I see no inconvenience or inappropriateness in making an order that the handover point be the McDonalds at A.
The remaining issue concerns parenting responsibility.
The wife’s position as that she should have sole responsibility. The husband’s position supported by the Independent Children’s Lawyer was that there should be equal shared parental responsibility.
The evidence in respect of the issue was very limited. Neither party required the other for cross-examination.
Despite clear directions as to the filing material and the rules of this Court, the wife filed an Outline of Case document in which she relied upon every affidavit effectively that had been filed since the start of 2008. It was unhelpful.
The husband relied upon an affidavit filed on 19 November 2008 which did not address any of the issues necessary to assist me to make a decision.
The Independent Children’s Lawyer relied upon the family reports prepared by family consultant Mr V in August 2008 and March 2009.
The mother’s position was simple. She said that the husband was supposed to go to Gordoncare for counselling pursuant to orders of the Court. He failed to do so. This was a case where the parties were in high conflict. The husband’s failure to attend that counselling eliminated a mechanism by which the relationship between the parties could have been improved. Counsel for the wife put it simply that there was no prospect of counselling now or that the relationship would occur in the future. Whilst that is very sad having regard to the fact that the husband stood in court espousing that he was willing to sort matters out, the history says that there is little prospect of success.
To make matters more difficult, there is a significant history of family violence. Whilst the husband said that a lot of that was disputed, he did not challenge the wife’s evidence. In addition, subpoenaed material produced from the Victorian Police force was relied upon by the wife. It suggested that the husband is currently facing “criminal charges” which amount to six counts of assault and one count of breaching an intervention order. The police information indicated that the charges were laid on 14 January 2009. Counsel from the bar table indicated that her client had obtained information that a warrant for the husband’s arrest was issued in August 2009 for his failure to attend the Ringwood Magistrates Court. The husband’s response was that he knew nothing about the matters other than that he was able to tell me the name of the police informant and that he had spoken to the informant and nothing further had been done about the matter. I am obviously not in a position to take any of those matters into account as they are not evidence of any substance and clearly in dispute. However, the very fact that there has been a history of police intervention in the lives of the parties other than those to which I have just mentioned, indicates that there is little love lost between them and certainly no trust.
Counsel for the wife also indicated that the husband would not negotiate about property matters which ultimately resulted in a receiver being appointed by the Court. There is in the wife’s material which I accept, a history in relation to matters which would suggest that the parties lost money as a result of the business being placed in receivership. The wife pointed to the fact that that lack of negotiation meant that the prospect in the future of any negotiation on issues as significant as the decisions about their children, was similarly problematic.
Counsel for the wife also pointed to the reports of family consultant Mr V. In August 2008, Mr V wrote a comprehensive report for the Court. At paragraph 85, he wrote that he had minimal confidence in the capacity and commitment of the parents to communicate or cooperate with each other about the children. He said that there were significant challenges for the parties in being able to implement an equal or even substantially shared parental responsibility arrangement. Mr V was presented with not only the material of the parties filed at that stage but had the opportunity to interview them both. His recommendation at that stage was that there should not be equal shared parental responsibility.
Mr V completed a second family report on 26 March 2009. In the second report, the dispute seemed to have escalated. The family consultant indentified issues about the children believing that their father was involved in possible drug use and dealing and that there had been incidents of heightened tension which included the husband damaging a table. Mr V reported that at that stage, the children were adamant that they did not want to spend any time with the husband in the foreseeable future. Mr V described the case as one of a significant and long history of complex difficulties within the family. He described them as being well documented and reported in affidavit material as well as previous professional assessments. He said it was a matter where the history had been fraught with various and regular crises and often at a time when court ordered assessments had been due. Importantly, he made the observation that the assertions about these crises coincided with the various assessments of the Court. That indicates a heightened level of anxiety about not only court events but also about decisions concerning children.
Thus, in March 2009, Mr V strongly recommended that the children and the parents actively engage with counselling services to provide them with individual and family counselling. From the husband’s perspective, that has not occurred. The husband’s explanation has consistently been that he did not have the capacity in a financial sense to be able to do so.
The whole object of parental responsibility is to ensure that parents make decisions together. The focus of that decision-making process must be on the welfare of the children. There is no sign in any of the evidence that I have read and no suggestion made by the husband in these proceedings that could convince me at the moment that there is any successful prospect of that occurring.
Despite that, Mr Grigg of counsel on behalf of the Independent Children’s Lawyer pointed with concern to what seemed to be a record of the children making observations about what their father needed to do to get his house in order. Mr Grigg said that an order for sole parental responsibility sent a message to the children that the husband was outside of the family unit and that he was being downgraded in the hierarchy of the family.
Mr Grigg then pointed out that despite my concerns about the capacity of the parties to communicate, it was clear from what had recently occurred and in particular on the very day that I heard the matter, agreement could be reached about the husband seeing the children. Whilst I appreciate that, I can only also draw on my knowledge of the various hearings prior to the final day in which it was made abundantly clear that there was no communication between the parties and certainly no trust such that they could work together.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out that one of the objects of Part VII of the Act is to ensure that the best interests of children are met by ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The underlying principle concerning that object is set out in s 60B(2) which requires that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that they should agree about the future parenting of their children. Those objects and principles are laudable but they are clearly designed for people who have the capacity to undertake those serious tasks and responsibilities. The evidence in this case militates against that.
Section 61C sets out that each of the parents of a child under the age of 18 years has parental responsibility for that child. That is subject to any order of a court.
Section 64B(2) sets out that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child.
Section 61B of the Act says that parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Commonsense dictates that those duties and responsibilities include not only things such as health and education but general direction in life that is so important for children in teenage years. What the law expects of parents in relation to decision-making is set out in the s 4 definition which reads:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Section 61DA provides that when making a parenting order in relation to a child, 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 that child. That presumption however does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence or that there is evidence to satisfy the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
I find in this case that the presumption is clearly rebutted. There is family violence which has permeated the whole proceedings. The question of why it happened and who was entirely responsible becomes irrelevant in these proceedings. There is an intervention order in place against the husband. He did not challenge any of the evidence of the wife in respect of these issues. In addition, there is no evidence that I could find to show that the parents could work together in a cooperative way for their children. As such, I could not be satisfied that it would be in the best interests of the children to have decisions made for their future delayed whilst their parents squabble over those issues.
Section 65D provides that in proceedings for a parenting order, the court may, subject to s 61DA to which I have referred in relation to the presumption of equal shared parental responsibility, make such parenting order as it thinks proper. In my view, proper simply means that the court should make an order which is realistically appropriate having regards to all of the evidence. Whatever the parties may espouse about their future intentions, the history of their behaviour particularly in relation to important issues such as decision for children can be seen by what has happened. I have no confidence that the parties in this case will change.
Whilst I have been very negative above, it is obviously in the hands of the parents to put down the cudgels and start to work towards the future of their children. The husband faces possible criminal charges which seem to involve the wife in some way. If there are no such charges, the husband needs to contemplate the fact that there is an intervention order that might preclude him from having meaningful dialogue with the wife.
All of this does not mean that the husband should not at least be consulted about important decisions in the lives of the children.
Section 60CC provides in a parenting case a number of matters for consideration by the court in determining what is in a child’s best interests. These are the matters that need consideration when deciding whether or not the equal shared parental responsibility presumption is rebutted.
Section 60CC is divided into primary considerations and additional consideration.
The primary considerations are the benefit to the child of having a meaningful relationship with both parents. I am satisfied in this case that that is occurring by virtue of the parties’ agreement. However the second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is conceivable in this case on the history of the parties’ relationship that bringing them together potentially exposes the children to psychological harm from watching the deteriorating relationship of their mother and father.
The other relevant additional considerations concern the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. There is no evidence of either party adopting a position in which I could say they were willing to undertake that. Issues about the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs was a very contentious subject in this case. Each accuses the other of damaging the children emotionally. For the parties to have a role where they are expected to negotiate and agree upon issues for the children with that background, seems most unlikely.
Each parent accused the other of being an irresponsible parent. The husband said that the wife was trying to exclude him from the lives of the children and the wife made assertions about violence. Each of those indicates a problem about the attitude that the parents have to the responsibilities of parenthood and in the light of that, it is hard to see how either could be expected to focus on the future needs of the children having regard to the definition to which I have already referred.
Section 60CC also refers to the court taking into account and as serious consideration, family violence. Family violence is destructive of relationships particularly if children are witnesses to that conflict. In this case having regard to the evidence of the family consultant, it is clear that the children are very much aware of the dispute between the parents relating to violence. With those background facts, it is impossible to expect the parties to simply negotiate and agree on issues associated with the future of their children.
Using those yardsticks, it must be said that it is not in the best interests of the children that their parents have equal shared parental responsibility and accordingly, the presumption is rebutted.
I have set out the aspiration of the law concerning parental responsibility. It is a serious step to remove the right of a parent to fulfil the responsibility. Ultimately however, pragmatism has to take precedence over desire. The only solution open to me to enable the husband to have some say in the future of his children is that each of the major long term issues be communicated as proposals by the wife in a book to travel with the children and for the wife not to make any such decision for a period of seven days thereafter enabling the husband to make a serious written contribution as to his views about any such issue. Normally on the basis that there was still disagreement, one might expect the parties to go to counselling and have a mediator endeavour to resolve the impasse. That has not worked in the past and notwithstanding what the husband suggested in submission about going to “Lifeworks”, I have no confidence that that would be cooperatively approached. I take into account that the husband has consistently said that he had no funds to be part of the travelling that the wife wanted and his child support obligation is nominal. He does not have a lot of money on the basis of what I have been told such that significant funds could be put into a counselling arrangement. The fact that the Gordoncare arrangement failed because of financial considerations would strongly suggest that another attempt would be equally problematic. That is not to say that the parties could not organise this amongst themselves if they so desired. I have to make the decision on the basis of the evidence presented to me. Accordingly, I find that there should not be equal shared parental responsibility but that rather the wife have sole parental responsibility after giving the husband an opportunity to have some input and failing agreement, she ultimately make the decision.
I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 1 February 2010
18
0
1