Matthews and Matthews

[2010] FamCA 880

FAMILY COURT OF AUSTRALIA

MATTHEWS & MATTHEWS [2010] FamCA 880

FAMILY LAW – CHILDREN – Allegations of family violence – Older children – Resisting time with father – No time with – Best interests

Family Law Act 1975 (Cth)
APPLICANT:	Ms Matthews

RESPONDENT: Mr Matthews

INDEPENDENT CHILDREN’S LAWYER: Ms M. Agresta

FILE NUMBER: MLC 12232 of 2007

DATE DELIVERED: 16 August 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 16 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Blewitt

SOLICITOR FOR THE APPLICANT: Rigoli Lawyers

COUNSEL FOR THE RESPONDENT: Ms D. Wiener

SOLICITOR FOR THE RESPONDENT: Whyte Just & Moore

Orders

IT IS ORDERED BY CONSENT

1. That all previous parenting orders in respect of R born … May 1995 and G born … July 1996 be discharged.

2. That the wife have sole parental responsibility for the children.

3. That the children live with the wife.

4. That the children or either of them spend time and communicate with the husband in accordance with their wishes.

5. That in the event that the children express a wish to spend time with the husband, the wife do all acts and things necessary to facilitate the child or children spending time or communicating with the husband.

6. That the husband be at liberty to send gifts and cards and letters to the children by posting same to their home address at all reasonable times.

7. That the wife keep the husband advised of the schools attended by the said children from time to time and authorize such schools to provide to the husband (at the husband’s expense) copies of all school reports, school photographs, application forms and other notices and papers of a kind usually disseminated to parents and authorize such schools to discuss with the husband issues concerning the welfare and education of the said children or either of them.

8. That the wife notify the husband of any serious illness or serious injury suffered by the said children or either of them as soon as practicable.

9. That the husband be and is hereby restrained from consuming alcohol for a period of 24 hours prior to spending time with the children R born … May 1995 and G born … July 1996 and from drinking alcohol when with the children.

10. That the husband and the wife be and are hereby restrained from verbally or physically disciplining the children and from exposing the children to verbal or physical violence.

11. That the husband be and is hereby restrained from allowing the children to have any form of communication or contact with Mr JM, Mr SP and Mr TP.

12. That the husband and the wife themselves and by their servants or agents be and are hereby restrained from denigrating each other in the presence of the children.

13. That all extent applications be otherwise dismissed.

14. Pursuant to s 62B and s 65DA(2), the particulars of the obligations there orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12232 of 2007

MS MATTHEWS

Applicant

And

MR MATTHEWS

Respondent

REASONS FOR JUDGMENT

1. These are proceedings pursuant to Part VII of the Family Law Act 1975 concerning two children:  R, who was born in May 1995 and is presently aged 15 years, and G, who was born in July 1996 and is presently aged 14 years.  The parties are the mother presently aged 52 years and the father of those two children presently aged 60 years.  The parties married in October 1994, separated in 2002 and were divorced in 2004. 

2. The mother has three children from a previous relationship, all of whom are adults. They were born in August 1986, July 1988 and August 1990.  Particularly the third of those children has been involved in extraordinarily dysfunctional behaviour.  The most significant single event would appear to be a sexual relationship between the third of those children and R, one of the subject children. R alleged, and I have no reason to disbelieve, that that child raped her.  There are other allegations of sexual abuse of R, particularly with regard to a friend of the father.

3. Apart from the matters referred to above there are important issues of health.  The mother suffered hydrocephalus and at least three of the children have that condition to one degree or another.      

4. Since the parties separated, R and G have lived with the mother and have spent various amounts of time with the father.  The father is alleged to be violent, bad-tempered.  It is alleged that he constantly denigrates the mother and that he threatens the children with obtaining their custody which they have found to be very difficult to deal with.  The allegations against the father, particularly with regard to his temper and his lack of ability to accommodate any criticism, have been amply demonstrated in the court today. 

5. At the beginning of this trial I discussed with his Counsel the potential problems involved in making orders that a child of the ages of these children spend time with one of their parents, particularly given questions of the children’s wishes as expressed through the family consultant and by the mother.  That seemed to me to be a significant issue.  Counsel indicated to me that she had not had sufficient opportunity to discuss those various matters with her client, as a result of which I stood the matter down.  After approximately two hours I resumed sitting and Counsel for the father informed me that her client no longer sought any order from the Court.  The father became quite demonstrative and was shouting abuse at the mother and the Department of Human Services, who have been extremely closely involved in this matter for many years.  He then left the Court.  He returned at a later time and considered minutes of orders which had been prepared on behalf of the mother in anticipation of the conduct of an undefended application this afternoon, but ultimately was not prepared to accede to those orders and, accordingly, he left again.  He is not presently in Court and has not been present since lunchtime.

6. In the circumstances, particularly given that very responsible and experienced Counsel has informed me that her instructions are that her client does not seek any orders together with the behaviour which I have described by the father, in my view, particularly given that these proceedings need to be brought to an end as soon as possible, it is appropriate that I proceed on an undefended basis.

7. Counsel for the mother has provided me with minutes pursuant to which previous parenting orders are discharged and the wife is given sole parental responsibility.  The orders propose that the children live with the mother and that they spend time and communicate with their father “in accordance with their wishes.”

8. The parties are required to assist in the children seeing their father if they express that wish and he is given liberty to send them gifts and cards, letters and the like by posting to their home address.  The mother is required to keep him advised of school matters and notify him of any serious illness.  He is sought to be restrained from consuming any alcohol for 24 hours prior to spending time with either of the children and from being verbally or physically disciplining of them or exposing them to verbal or physical violence. 

9. He is proposed to be restrained from allowing them to have any form of communication with two of their three half-siblings, including the third one to whom I have referred, together with the friend of the father’s in respect of whom an allegation has been made to which I have also referred.  There is to be a mutual restraint against denigration and otherwise the orders are procedural.

10. In considering this matter, I must first have regard to the best interests of the children as the paramount consideration.  I must take into account the various matters in section 60B relating to the rights of children to know and be brought up with, by and be cared for by both their parents, subject to their best interests, together with the duty imposed on parents to care for them and particularly their care, welfare and development.  It is in children’s interests to spend as much time with both of their parents and others important in their lives save where it is contrary to their best interests so to do.

11. In considering the various matters, I am required to have regard to the primary and additional considerations contained in section 60CC of the Act.  The structure first requires me to consider questions of parental responsibility.  Neither party is submitting to the Court that the parents should share parental responsibility.  On the basis of all the material, I am satisfied that that is an appropriate course to be taken, and given that the mother is to be the sole primary carer of and for the children, it is appropriate that she should have sole parental responsibility of and for them.  There is therefore no requirement for me to consider equal shared time.  However, again that would not be appropriate given the circumstances of this matter.  Likewise, substantial and significant time is in the same category.

12. I have had regard to a considerable volume of expert evidence in my consideration of this matter.  In the first place, I have had regard to two reports by Ms A, a Regulation 7 family consultant, who completed family reports for the Federal Magistrates Court when this matter was listed in that Court.  I have also had regard to a family report by one of this Court’s family consultants, Mr S, which is dated 2 August 2010.  I have read the affidavits of the parties and have formed the view as a result of all of that material that the orders proposed on behalf of the mother and supported by the independent children’s lawyer are in the children’s best interests.

13. In particular, I refer to the expert evidence with regard to the children and as also related to me on behalf of the independent children’s lawyer by his Counsel that the children do not want to be subject to orders that they see their father.  If I were to subject them to orders, they have indicated that they would rebel against that and not see him.  Understandably, in any event, but particularly because of the history of this matter, it is in their best interests that those wishes be given a great deal of weight and to that extent the minutes support their wishes, as does the entirety of the material.

14. There is a long status quo here.  A great deal of the father’s behaviour is dysfunctional.  The mother is with difficulty, some of that imposed on her by the father, doing at least a creditable job of bringing up these children who have had quite significant difficulties and there is no reason at all why that status quo should be disturbed.  When that is put together with those wishes and the need to bring these proceedings to an end, in my view, the result is absolutely clear in favour of the mother and I will therefore order in accordance with the minutes.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  1 October 2010