FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATENSON & MATENSON (No.2) | [2020] FCCA 1316 |
| Catchwords: FAMILY LAW – Parenting – undefended hearing – where the father filed a notice of discontinuance – where the Court heard submissions from all parties – family violence – allegations of abuse – risk – sole parental responsibility – children’s views. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC. |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 |
| Applicant: | MR MATENSON |
| Respondent: | MS MATENSON |
| File Number: | BRC 2083 of 2017 |
| Judgment of: | Judge Howard |
| Hearing date: | 19 February 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 19 February 2020 |
REPRESENTATION
| The applicant attended as a self-represented litigant: |
| Solicitors for the Respondent: | Cornerstone Law Offices |
| Counsel for the Independent Children’s Lawyer: | Ms Bertone |
| Solicitors for the Independent Children’s Lawyer: | TLG Law |
ORDERS
Previous orders
That all previous parenting orders are discharged.
Parental responsibility
That the mother have sole parental responsibility for the children X born 2002, Y born 2004 and Z born 2006 (“the children”).
Lives with
That the children live with the mother.
Spends time and communicates with
That the children spend time and communicate with the father at all times as they may express a wish to do so and by any means they choose.
That the father is at liberty to send the children gifts and cards on special occasions being the children’s birthdays, Easter and Christmas, sent only to the mother’s mailing address.
Exchange of information
That:
(a)the parties shall ensure that they each have the other party’s current mailing address, email and mobile phone number and advise the other of any change within twenty-four (24) hours of any change; and
(b)the mother shall notify the father of any emergency relating to the health and wellbeing of any of the children, as soon as practicable.
Passport
That the children shall have an Australian passport and this order is authority for the mother to obtain passports for the children in the absence of the father’s signature or authority.
Overseas travel
That the children be permitted to travel out of the Commonwealth of Australia with the mother.
Other
That all outstanding applications, including the father’s application for contravention filed 25 September 2018, be dismissed.
That the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Matenson & Matenson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2083 of 2017
| MR MATENSON |
Applicant
And
| MS MATENSON |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 19 February 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court relates to three children: X, born 2002; Y,…
Continue reading MATENSON & MATENSON (No.2)
Sign in free to access the full text
- AGLC
- MATENSON & MATENSON (No.2) [2020] FCCA 1316
- Case
- [2020] FCCA 1316
- Decision Date
CaseChat Overview and Summary
The court was required to determine what parenting orders were in the best interests of the children, considering the primary considerations under section 60CC(2) of the Family Law Act 1975 (Cth), namely the benefit of a meaningful relationship with both parents and the need to protect the children from harm. The court also had to consider the additional considerations under section 60CC(3), particularly the expressed wishes of the children, taking into account their maturity and understanding.
Judge Howard reasoned that the evidence before the court, including the family report, was largely unchallenged due to the father's discontinuance of his applications. The court placed significant weight on the children's expressed wishes, as detailed in the family report. Specifically, the eldest child, X, articulated significant distress and a desire to cease contact with the father, expressing nightmares and a wish to focus on her education. The court noted that X felt "heard" by the Independent Children's Lawyer and that her wishes were consistent with her maturity and understanding. The court also considered the father's previous allegations of harm, which were also unchallenged.
Consequently, the court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the children, and the children were ordered to live with the mother. The father was permitted to spend time and communicate with the children at all times as they expressed a wish to do so, and by any means they chose. The father was also permitted to send gifts and cards on special occasions to the mother's mailing address. The court also made orders regarding the exchange of contact information, notification of emergencies, and the children's passports and overseas travel with the mother. All outstanding applications, including the father's contravention application, were dismissed, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
Previous orders
1.
That all previous parenting orders are discharged.
Parental responsibility
2.
That the mother have sole parental responsibility for the children X born 2002, Y born 2004 and Z born 2006 (“the children”).
Lives with
3.
That the children live with the mother.
Spends time and communicates with
4.
That the children spend time and communicate with the father at all times as they may express a wish to do so and by any means they choose.
5.
That the father is at liberty to send the children gifts and cards on special occasions being the children’s birthdays, Easter and Christmas, sent only to the mother’s mailing address.
Exchange of information
6.
That:
(a) the parties shall ensure that they each have the other party’s current mailing address, email and mobile phone number and advise the other of any change within twenty-four (24) hours of any change; and
(b) the mother shall notify the father of any emergency relating to the health and wellbeing of any of the children, as soon as practicable.
Passport
7.
That the children shall have an Australian passport and this order is authority for the mother to obtain passports for the children in the absence of the father’s signature or authority.
Overseas travel
8.
That the children be permitted to travel out of the Commonwealth of Australia with the mother.
Other
9.
That all outstanding applications, including the father’s application for contravention filed 25 September 2018, be dismissed.
10.
That the Independent Children’s Lawyer is discharged.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Section 60CC then sets out how it is that a Court is to determine what is in a child’s best interests. The primary considerations are stated in section 60CC, subsection (2):-“Primary considerations(2) The primary considerations 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.(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” The children told certain things to the family report writer. They expressed their wishes, and they told the family report writer about their experiences with the father. This case proceeded as an undefended hearing. The correct approach is for the Court to take account of the evidence that is before it – especially from the family report writer. I cannot see that there is any other outcome other than the Court accepting what is contained in the family reports. In Leone & Cino [2016] FamCAFC 224 from paragraph 61 the Full Court – when dealing with a case where the father had discontinued his application stated, inter-alia:-“61…The evidence before the primary Judge was accordingly unchallenged…In a comprehensive judgment, the primary Judge dealt with all of the legislative matters required of her and applied the unchallenged evidence to the facts that she was required to determine and which underpinned her conclusion as to the appropriate orders to be made." Where one party has filed a notice of discontinuance (as in the present case) the evidence of the other party and, for instance, the evidence filed by an Independent Children’s Lawyer, is unchallenged. In relation to the allegations made by the children to the family report writer concerning harm which they say was done to them by their father, it seems to me that that evidence (because of the filing of the notice of discontinuance by the father) is unchallenged. If I am wrong about that, it makes no difference to the outcome for today’s purposes, because what is certain here is that the Court can have regard to the children’s wishes. Section 60CC, subsection (3), sets out various additional considerations, and subparagraph (a) is the most important section of the Act for the purposes of these proceedings. It is important for the Court to consider the expressed wishes of the children. Section 60CC(3)(a) states that the Court is to consider: –“60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;” In the most recent family report, I note the express wishes of X. In Ms C’s report, filed in November 2018 X’s wishes are stated from paragraphs 34 to 44 of the family report, which state:- “34. In addition to meeting with the ICL, X chose to meet with me alone at my invitation as part of this updated assessment. X presented to have gained emotional maturity from our initial meeting in 2017, and she was articulate, calm and engaging throughout our discussions.35. X commenced at E School for 2018. She feels she has settled well and is progressing well academically. Her focus currently is on her school work.36. Currently, X feels stressed. She relates this to the upcoming trial of this parenting matter. She feels stressed about a possibility of Mr Matenson ‘coming back’ into our lives’, X is having nightmares. ‘I wake with nightmares that I walk downstairs and he’s there’.37. X advised that she drove Y and Z to one of the visits at D psychologists. They stayed in the car and refused to go in. She noted, 'I saw how distressed they were. I told them to calm down, to do what they want. It was breaking my heart to see them like that'.38. When asked about Y's toe, X was unaware of the association of his injury. She believes he accidently kicked it at school.39. X advised that she had received a card from Mr Matenson for her birthday. It was a pink princess card. She offered that even has a young girl she was never into princesses. 'It felt like he picked up the first girly card he saw'.40. About Mr Matenson, she stated, 'I'm sick of giving him chances. I don't want to keep worrying about him. I want to focus on my education'. X remains focused on going to university. 'I don't want to keep thinking about Mr Matenson'.41. Regarding her mother, X advised that she has recently been unwell. This was a stressful time, but the family had good supports in place. She notes, 'she's always stressed'. Over the past two weeks, Ms Matenson's health appears to have stabilised.42. When asked about how much Ms Matenson discusses the proceedings with her, X advised, 'I'd like to know more. I want to read everything. Mum just says when Court's on but that's really all. I want to know because I'm an overthinker'.43. X was asked how she thought Ms Matenson would react if Y and Z did recommence time with Mr Matenson. She offered, 'When we were seeing him, she always said it was out choice. I think she'd let me see him if they wanted too'.44. X offered, 'I don't want to see Mr Matenson and I don't want him to have anything to do with me'. X reconfirmed that she appreciated Ms F making the effort to meet them. She 'felt heard today'.”