Massey and Cooper

[2014] FamCA 574

FAMILY COURT OF AUSTRALIA

MASSEY & COOPER [2014] FamCA 574

FAMILY LAW – CHILDREN – Undefended – Where the father failed to participate in the hearing – Where the child has spent limited time with the father over the past year – Where the father is unwilling to communicate with the mother – Where the mother alleges the child has been mistreated in the father’s home – Where the mother seeks no specific order for the father to spend time with the child but a restraint on his partner being present during any future contact

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA
Family Law Rules 2004 (Cth) r 16.07

G & C [2006] FamCA 994

Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Massey

RESPONDENT: Mr Cooper

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: PAC 2198 of 2013

DATE DELIVERED: 25 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Claremont Legal

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother have sole parental responsibility for the child, E, born … 2001 (“the child”).

2. The child live with the mother.

3. The father be restrained from allowing or causing his partner Ms C to be present during any time that the child spends with him.

4. The parties be restrained:

   (a)from abusing, belittling, rebuking or criticising each other to or in the presence of the child and from permitting any other person to do so;

   (b)from discussing the proceedings in any way in the sight or hearing of the child, or permitting any other person to do so; and

   (c)from physically disciplining, striking or hitting the child and that they use their best endeavours to prevent any other person from doing so.

5. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2198 of 2013

Ms Massey

Applicant

And

Mr Cooper

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the long-term parenting arrangements for the child, who is 13 years old.

2. B’s parents had a two-year relationship and lived together for just over a year. the child, their only child, was born in 2001 and the parents separated just over a year later.

3. B was living in a “week about” arrangement for some time until about May 2013. Since then the child has lived on a full time basis with his mother, recently joined by the mother’s new husband Mr D. He has spent only one period of time with the father since May 2013, during the April 2014 school holiday period.

4. The father has also re-partnered and lives with his new wife, Ms C. They have three children together – E aged about 7, F aged about 6 and G aged about 4. Ms C also has two sons of a previous relationship, aged about 13 and 11 years.

5. The mother commenced these proceedings in May 2013 initially seeking positive orders that the child spend some time with the father. She has since amended her proposal and no longer seeks a specific order for time between the child and the father but seeks a restraint upon the father allowing his wife, Ms C, to be present during any future contact between them.

The father’s non-attendance

1. On the first occasion the matter came before the Court in late May 2013 there was no appearance by or on behalf of the father. The matter was identified as suitable for the Magellan Project at that stage. Several days later the father attended a directions listing before a Registrar by telephone.

2. The next listing was in mid-July 2013 and there was no appearance by or on behalf of the father. The Independent Children’s Lawyer had not received any communication from the father and the father had not complied with directions to file material in response to the mother’s application. The matter was stood over for a possible undefended hearing on 14 October 2013 and for the father to be notified of the adjourned date and the consequence if he again failed to attend.

3. There was again no appearance on 14 October 2013 by or on behalf of the father. Interim Orders were made for the child to live with the mother and for the child to spend time with the father as agreed between the parents in writing, but with a restraint upon Ms Cooper being present. The mother was directed to personally serve a sealed copy of the Orders and a copy of the Magellan Report upon the father. The matter was stood over for an undefended hearing or further directions and for the parties to attend upon a Family Consultant to prepare a Children and Parents Issues Assessment report.

4. An Affidavit of Service filed in these proceedings indicates that the father was personally served with a copy of the Orders of 14 October 2013 and a copy of the Magellan Report at a unit in N Street, Suburb I in late October 2013.

5. The father failed to attend upon the Family Consultant in January 2014 but was contacted by telephone in February 2014 following the child’s interview with the Family Consultant and was provided with some feedback. At that stage, the father appeared to indicate that he would not be participating in the proceedings because of his financial circumstances.

6. On 29 April 2014 the father again failed to attend a Court event. The father was to be notified of the outcome and the matter was stood over for an undefended hearing.

7. On 2 May 2014 the mother’s solicitors sent a letter to the father at two different addresses – a unit in H Street, Suburb I and a street address in J Street, Suburb K. In those letters the father was notified of the outcome of the 29 April 2014 Court event, was put on notice of the matter being adjourned for undefended hearing on 30 June 2014 and that the matter would proceed on that day in the event of him being absent. He was put on notice that the mother was seeking no specific order for time between him and the child and if orders were made on a final basis in her favour, he would need to then demonstrate a significant change in circumstances to apply to the Court in future to reconsider the child’s arrangements.

8. The matter came before me on 30 June 2014 in a duty list. There was again no appearance by or on behalf of the father. The mother and the Independent Children’s Lawyer pressed for the matter to be heard and finalised in the father’s absence. They each made brief submissions in support of the orders proposed by the mother.

9. As is evident from the history outlined above, the father has only attended one Court event by telephone and that was shortly after the proceedings were commenced. He has failed to participate in the proceedings since mid-2013 and indicated to the Family Consultant that he would not be participating.

10. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

    (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

    Note: The court may dispense with compliance with a rule (see rule 1.12).

    (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

11. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the father’s absence. The father has been given ample opportunity to engage in these proceedings and has been clearly notified of the consequences of his non-attendance. It is evident from his actions and his statements to the Family Consultant that he does not wish to participate in the proceedings or oppose the orders sought by the mother.

    [1] [2014] FamCAFC 14

    [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

12. In light of the matter proceeding on an undefended basis, only the mother’s affidavit has been read.

The Uncontested Facts

Matters relevant to the child and his future parenting arrangements

1. In April 2013 the child was diagnosed with Attention Deficit Disorder. He currently takes Ritalin. He was recently asked to participate in a research study relating to the condition, but following an interview between the child and a Professor of the L Hospital, the Professor indicated that he would be making a report to Community Services about disclosures the child had made to him and would not allow the child to continue in the research program because of concerns he had of “signs of depression and/or abuse”.

2. Since May 2013 the child has been attending upon a psychologist. Initially appointments were more frequent but are currently about once a month.

3. The mother remarried in 2014 and her husband now lives with the child and the mother. Her husband Mr D has three children of a previous relationship who do not live with him. They commenced a relationship around the beginning of 2013 and commenced cohabitation around the beginning of 2014.

4. Currently, the child is attending M School and is in Year 7. He is receiving tutoring to assist him with his academic progress.

Concerns in respect of the father’s home

1. A Magellan Report was prepared by the Department of Family and Community Services on 11 July 2013. In that report the Department indicated they did not intend to intervene in the proceedings. The report set out two reports in respect of the child which had met the risk of harm threshold.

2. The first report of “psychological mistreatment” is dated 21 May 2013. The report alleges the child being subjected to unfair treatment by his step-mother and that his school performance is poor and attitude is affected. The matter was not investigated and closed due to “competing priorities”.

3. The second report of “psychological mistreatment and physical harm” is dated 3 June 2013 and arises from the mother’s filing of a Notice of Risk of Abuse, Family Violence or Risk of Family Violence in these proceedings. The mother alleges the child has reported being physically assaulted by the father. the child specifically has reported that his father bent his wrists back so far he felt they were going to break. There are also allegations that the child’s step-mother has verbally abused him and made derogatory comments towards him, has thrown a skateboard at his head and treats him differently to his siblings. The mother reported that she had seen bruising on the child following time with the father. The allegations were not investigated.

4. In her affidavit the mother says the child had complained to her that the alleged physical and verbal abuse he experienced in the father’s home is “getting worse and worse”. To the Family Consultant the mother reported that the treatment started when the child was four or five years old but it had gradually worsened as time progressed. She says that the child first starting making disclosures about his time at the father’s when he was nine or ten years old. She says that the child became distressed and panicked when he was to go into the father’s care, that he did not want to go and reported feeling sick in his stomach when his father was mentioned.

5. In addition to the bending back of the child’s wrists on numerous occasions, the mother says she had seen bruising on the child’s limbs following time in his father’s care, which she says the child reported to her as being caused by the father.

6. As to Ms Cooper treating the child differently to the other children in the father’s home, the mother says the child had reported that he has to make his own lunch for school but the other children have their lunch made for them, that he is not allowed access to the fridge but the other children are, and that Ms Cooper hugs the other children but not him. the child also reported being teased by Ms Cooper and the other children, for example, singing a made up song about him or asking him to spell words he may struggle with spelling. Further, the child reported that after an incident when he fell of his skateboard and his knee and elbow were bleeding he had asked Ms Cooper for help but she would not help him.

7. The mother says that the child had reported to her being questioned by the father about everything he does when not in the father’s care, including about his visits to his psychologist.

8. To the Family Consultant the father denied that the child has been physically and verbally abused in his home.

9. The mother raises concerns that in the past the child has reported going to the father’s workplace before school, at approximately 6.00 am, and again after school until dinner time, and spending weekdays during school holiday periods at the workplace when in his father’s care.

10. Further, the mother raises concerns about hygiene in the father’s home, saying the child has had a history of boils and has returned from the father’s on many occasions in dirty clothes.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it, set out in section 60B, form the framework for dealing with parenting matters.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring 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 child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a 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 (such as grandparents and other relatives); 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 (including the right to enjoy that culture with other people who share that culture).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:-

   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. 

   These proceedings were commenced after the amendments to the Act in June 2012 and therefore greater weight is to be given to the later consideration.

2. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [4] (2007) Fam LR 518

   [5] [2006] FamCA 994

3. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

4. Both parents are of the view that the child should spend some time with the father, without Ms Cooper being present. The Family Consultant recommends that the child spend some time with the father and the Independent Children’s Lawyer supports the mother’s proposed orders that there be no specific order for time between the child and the father, but that they be at liberty to arrange time to be spent together informally and independent of Court Orders. Despite the mother seeking no specific order, her proposed orders would not preclude them spending some time together and this appears to be envisaged for the future.

5. The Family Consultant proffered the view that it may assist in respect of the child and the father’s time resuming for them to involve a third party, such as a counsellor, and this is something that could be explored by the parties if necessary. The father has indicated to the Family Consultant that he would be willing to engage in some form of counselling with the child to repair their relationship.

6. As to protecting the child from harm, the evidence raises concerns about the child’s treatment in the father’s home. The mother’s proposed order that Ms Cooper be restrained from being present at any future contact between the child and the father would assist as a protective measure in this regard.

7. B is currently seeing a psychologist and he says this is to deal with issues that arose in the father’s home. To the Family Consultant the child reported getting headaches a lot when he was at his father’s, but they had now ceased, and that he had often been sick when at his father’s.

8. The mother proposes that the child and the father spend outings together, away from the father’s home. This could be managed by the mother giving her consent to time together only in these circumstances. The restraint on Ms Cooper attending appears appropriate in the circumstances for the child’s wellbeing.

Additional considerations

1. Section 60CC(3) sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

B’s views

1. B has expressed a wish to resume some contact with his father, but not to necessarily live with him. He has also expressed a wish to see his siblings on the paternal side. In the past the child has been scared of his father and appears to have experienced some emotional distress and difficulties in the father’s home. Upon seeing a photograph on Facebook of the father’s family at around Christmas 2013, the child expressed that he felt sad about missing out.

2. B has expressed a wish to not resume contact with Ms Cooper, but also said he would be happy to return to a week about arrangement if Ms Cooper was “nicer”.

3. Having regard to his age, some weight is attached to his views.

Nature of the child’s relationship with each parent and other significant persons

1. The Family Consultant formed the view that the conflict between the two households led to the difficulties that arose between the child and those in the father’s home.

2. To the Family Consultant the child reported a positive relationship with both of his parents and the mother’s new husband. He reported that Ms Cooper was “not nice” and treated him differently to the other children in the father’s home. The father conceded that there was some negativity between the child and Ms Cooper. The father has indicated he is happy to spend time with the child without Ms Cooper being present, which is in accordance with the restraint sought by the mother.

3. B also reported a generally good relationship with his siblings but they sometimes “made fun of [him] and punched [him]”. It would be important for the child to continue a relationship with his siblings, and the mother appears to support this but is concerned that facilitation of their relationship may be impacted by Ms Cooper. It would be appropriate for the father to include the child’s half-siblings at times when they are spending contact together in future.

Extent to which each parent has taken or failed to participate in decision-making or spending time or communicating with the child

1. The mother alleges the father has made little effort to keep in contact with the child since they stopped spending time together in mid-2013. However, the mother also reported to the Family Consultant that she was the one who had ceased telephone contact between them because of what she says was the father interrogating the child, and she also restricted the child contacting his father through Facebook. It appears such restrictions no longer exist and the child has been communicating with his father at times via Facebook. The mother says she has encouraged the child to spend time with or have telephone contact with the father, but he has been the one who has not wished to do so. She now wishes for them to have regular contact and for the father to play an ongoing role in the child’s life, but without specific orders being put in place given the father’s failure to commit to fixed times and failure to participate in these proceedings.

2. Since about April 2013 the mother says the father has refused to communicate with her regarding the child and has instead contacted the child directly. The only occasion of time in 2014 was arranged between the child and the father, independently of the mother.

3. The mother is seeking that she have sole responsibility for decision making because of what she describes as the father taking a “passive role” in the child’s life. The Family Consultant reported the parents have a strained relationship and currently do not communicate with each other regarding the child or otherwise.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. Having regard to the “week about” arrangement that was in place for the child up until about May 2013, the parties would have each been taking responsibility for maintaining the child whilst he was in their respective care. Since that arrangement has no longer been in place, the mother appears to have been solely responsible for maintaining the child and she says that on an occasion in November 2013 when she sought financial assistance from the father to pay for one of the child’s school trips the father responded via text message to the child to the effect that he did not want the mother to contact him anymore.

Likely effect of change in the child’s circumstances

1. B previously lived in a week about arrangement up until about May 2013. Since then the child has lived in his mother’s full time care and has only spent one occasion of time with his father in April 2014. Interim Orders made in October 2013 provided for the child to live with the mother and spend time with the father as agreed between the parents, and those Orders also provided for Ms Cooper to be restrained from being present during any such time.

2. The mother’s proposal does not change the current situation other than there will be no specific order in place for the child to spend time with the father, but this does not restrict him from doing so. It appears that given the lack of communication between the parents and the child and the father having directly arranged the last contact, it is appropriate for there to be no orders in place requiring the parties to agree in respect of the father’s time.

3. It is the mother’s case that it will be more stable for the child to have only one home and this arrangement has assisted improve his academic progress immensely over the last year.

Practical difficulty and expense in the child spending time/communicating with his parents

1. This is not of particular relevance in this case and no practical difficulties have been raised in respect of the mother’s proposal. It appears that the child and the father will be able to arrange contact between themselves, as they have done in the past, and the mother will encourage and facilitate this.

Capacity of the parents to provide for the child’s needs, including emotional and intellectual needs

1. The evidence before me puts in question whether the child’s needs, particularly emotional and intellectual needs, were being met in the father’s home when the “week about” arrangement was in place. There is no evidence that the child’s needs are not being met in the mother’s care.

2. The mother has reported having Adult Attention Deficit Disorder, depression and anxiety and taking medication to manage these conditions. The mother admits previously having a dependency upon alcohol and cannabis, but has undergone treatment and overcome these dependencies. There appears to be no current concern in this regard.

3. The mother alleges that the father has been previously charged with driving under the influence of alcohol on several occasions but no independent evidence is put forward in support of these matters.

4. The Family Consultant has recommended that the parents may benefit from each attending counselling with their respective partners and children, if appropriate, in respect of step-families. The mother has indicated that she has taken this step in her home with respect to her new husband joining the family.

Attitude and responsibilities of parenthood demonstrated by each parent

1. The father’s attitude and responsibility to parenting the child is put in issue in him failing to participate in these proceedings and only having spent one occasion of time with the child since May 2013, when the child had previously been in his care each alternate week.

2. Further it appears that the father may have either abrogated or ignored some responsibility in attending to the child’s wellbeing when he was living in his home on a “week about” basis, particularly regarding the child’s treatment by his wife and at times by his other children.

Family Violence

1. The mother raises allegations of the child being physically harmed by the father and potentially by Ms Cooper and also being emotionally harmed within the father’s home. These allegations are denied by the father. The Department declined to investigate the allegations raised by the mother in her Notice of Child Abuse, Family Violence or Risk of Family Violence and also did not investigate earlier allegations made to the Department in May 2013 of a similar nature. I am unable to determine on the evidence before me whether there has been family violence within the father’s home but it does appear that, having regard to the child receiving some counselling because of issues arising within the home, that his wellbeing was somewhat affected within that environment.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings

1. The mother’s proposal puts in place some certainty as to the child’s future arrangements but does not prevent the child resuming to spend some time with the father informally. The father has not participated to seek specific orders and appears to be amenable to spending time with the child informally and without a set regime. The restraint in respect of Ms Cooper being present during any such time has been in place since October 2013 and, having regard to the negative relationship between the child and Ms Cooper and the father’s agreement for such restraint to continue, it does not appear to be an order that would likely reignite future proceedings.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In this matter, the mother is seeking sole parental responsibility and the Independent Children’s Lawyer supports such an order being made.

2. The starting point where the Court is to determine parental responsibility is s 61DA. The section 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 child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility (subsection 61DA(4)).

3. As noted above, I am unable to determine whether the claims of the mother and the child in respect of his treatment within the father’s home fall within the definition of family violence as defined in the Act. In any event, in this matter the mother has been solely responsible for decision-making regarding the child since about May 2013. The parents have not been able to communicate effectively for some time and the father appears to not wish to have any form of contact with the mother in future. In these circumstances, equal shared parental responsibility is clearly unworkable and the presumption is rebutted. It is in the child’s best interests for the mother, who has the primary care for him into the future, to have sole parental responsibility for him and an order will be made accordingly.

4. Having regard to all of the factors in relation to the child’s best interests, I make orders in accordance with the orders proposed by the mother and as supported by the Independent Children’s Lawyer.

5. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 July 2014.

Legal Associate:       

Date:    25 July 2014