Maunder and Doth

[2014] FamCA 1087

FAMILY COURT OF AUSTRALIA

MAUNDER & DOTH [2014] FamCA 1087

FAMILY LAW – CHILDREN – Undefended hearing – Where the father has not actively participated in the proceedings – Where final parenting orders are made on an undefended basis

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Ms Maunder

RESPONDENT: Mr Doth

INDEPENDENT CHILDREN’S LAWYER: Ms Berck

FILE NUMBER: BRC 11315 of 2009

DATE DELIVERED: 3 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Berck, Solicitor

Orders

It is ordered on an undefended basis that:

1. All former orders relating to the children, L born on … 2003 and P born on … 2005 (“the children”) are discharged.

1. The Mother shall have sole parental responsibility for the children.

1. The children live with the Mother.

1. Pursuant to s 68B of the Family Law Act 1975 (Cth) the Father is restrained from entering upon or approaching within 100 metres of:

a.   the Mother’s residence; and

b.   any school attended by the children.

1. Leave is granted to the Mother to furnish a sealed copy of these Orders to the Principal of any school attended by the children.

1. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

1. Any and all outstanding applications are dismissed.

1. 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.

Notation

(A)These Orders intentionally make no provision for the children to spend time or communicate with the Father.  Whether and, if so, how the children spend time or communicate with the Father shall be determined by the Mother as an incident of her sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maunder & Doth 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 BRISBANE

FILE NUMBER: BRC 11315 of 2009

Ms Maunder

Applicant

And

Mr Doth

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern two children, a boy whom I will refer to as L born in 2003, who is thus now approaching the age of 12 years, and a girl whom I will refer to as P born in 2005, who will thus soon turn 10 years of age.

2. The parties to this application are the children’s mother and the named respondent is their father. An Independent Children’s Lawyer (“the ICL”) has been appointed pursuant to s 68L of the Act to independently represent the children’s interests in these proceedings.

3. Historically, final parenting orders were made in the then Federal Magistrates Court by consent on 16 November 2010.  In summary, those orders provided for, inter alia, the parents to have equal shared parental responsibility for the children, and for the children to live with each parent on a week-about basis.

4. The issues giving rise to the current proceedings centre in the main upon allegations that the father sexually assaulted the child L in 2012.  The father was subsequently charged with rape as a result of the allegations.  However, he was acquitted of those charges in November 2013.

5. The present application was filed by way of an Initiating Application filed by the mother on 5 October 2012 in the then Federal Magistrates Court, and those proceedings have subsequently been transferred to this Court.  Both the mother and the ICL today seek that the Court make final parenting orders on an undefended basis in circumstances where the father has not appeared. 

6. The rules of procedural fairness and natural justice need to be considered before determining matters on an undefended basis.  Within the rule of procedural fairness lies the indispensible requirement of the court system of justice that a party being affected by a decision have the opportunity to be heard. 

7. That is highlighted by Kirby J in Allesch v Maunz (2000) 203 CLR 172; his Honour observed that where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the Court material information and submissions before a decision was made.

8. However, as was emphasised by Kirby J, it is the opportunity to be heard which is essential to procedural fairness, not that the Court must receive evidence or submissions on behalf of the party before orders are made.  That is, the principle does not require the decision-maker to actually hear from the party.

9. As Kirby J put it in Allesch v Maunz (at [38]):

   … Sometimes, through stubbornness, confusion, misunderstanding, fear, or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

10. For the reasons which follow, I am satisfied that the father was aware of the institution of the proceedings and has been aware for a long time now of the prospect of orders being made if he did not participate in the proceedings. 

11. Filed in the mother’s case is an Acknowledgement of Service signed by the father on 22 October 2012.  That acknowledged service of the mother’s Initiating Application earlier referred to, as well as the supporting affidavit filed in support of that application, both of which documents were filed on 5 October 2012.

12. There have been, since the filing of the application, numerous Court events in terms of Court management of the proceedings along the way which afforded the opportunity to the father on each occasion to participate in the proceedings if he chose to so do.

13. Following the filing of her application on 23 October 2012, parenting orders were made on an interim basis, essentially for the children to live with the mother, and for the father to spend no time with them. 

14. On 5 November 2012, orders were made designating the matter as Magellan, a term applied to cases in which serious allegations of abuse are raised, and it was on that date that the matter was transferred to this Court and an ICL was appointed.

15. The father has not participated in any meaningful way in the proceedings, nor has he complied with trial directions, for example, those of Forrest J made on 23 January 2013, which required him to file and serve a Response and supporting affidavit by 13 February 2013, and to attend upon a family consultant for the purpose of preparation of a family report.

16. On numerous following dates, there have been directions hearings, or hearings conducted by a Registrar, at none of which the father has participated.  Such hearings took place, for example, on each of 18 September 2013; 26 February 2014; 21 May 2014; 10 September 2014; 15 October 2014; 19 November 2014; and most recently on 26 November 2014. 

17. Aside from the feature that the father has not filed any material in the course of these proceedings, he did not attend family report interviews which took place in July 2014 for the purpose of Ms B compiling a family report.

18. It follows that I am satisfied that the father has been afforded the opportunity to be heard in these proceedings, but has not availed himself of that opportunity.  I am satisfied that there would be no denial of natural justice to the father, or any abrogation of the rules of procedural fairness, to proceed and to hear and determine the parenting orders now sought in his absence.

19. It also follows from the father’s lack of participation in the proceedings that he does not contradict evidence advanced in the mother’s case, or in that of the ICL. 

20. Apart from his non-participation in these proceedings, it is clear on that evidence that the father has failed to participate in any meaningful way in the lives of these children now for a long period of time.  That includes the period subsequent to his acquittal on the criminal charges to which I have made reference.

21. Part VII of the Act provides the statutory framework in which this Court exercises its power to make parenting orders. Section 60B of the Act sets out the objects of Part VII and how those objectives are to be achieved, and the principles which underlie those objects.

22. Relevantly, one of the principle objects of Part VII is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, but only to the extent consistent with their best interests.  A further important object is protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

23. Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

24. Section 60CC of the Act identifies the primary considerations and the additional considerations the Court must consider in determining what is in the child’s best interests. The primary considerations set out in s 60CC(2) reflect the objects earlier referred to.

25. Because the current proceedings were commenced after 7 June 2012, the amendments which took effect then apply to these proceedings.

26. Section 65D of the Act provides the source of the Court’s power to make a parenting order as defined in the Act. That section expressly provides that this power is subject to, inter alia, s 61DA of the Act, which requires the Court to 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.

27. However, that presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2), and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. 

28. The relevant history, and an extensive summary of relevant evidence in the case, is contained in the relevant recent family report prepared by Ms B and attached to her affidavit filed by the ICL on 25 November 2014.

29. In circumstances where the father has filed no material or participated in the case, it may be accepted that there is no contradiction to the allegations that have been advanced by the mother in her case, and no contradiction of statements recorded that the children have made.

30. The Court can thus proceed on the basis that the evidence referred to and relied upon by the mother in her case, and likewise that in the ICL’s case, can be accepted and acted upon.

31. Given the comprehensive nature of Ms B’s report, I do not propose to record in detail the chronological sequence of relevant events, but I adopt her history and chronology as accurate. 

32. Relevantly, aside from issues of alleged sexual abuse earlier referred to, there has been a history of issues of what I can accept to be family violence in the relationship as between the mother and father; and there are issues concerning the father’s capacity as a parent, given his alcohol use and abuse; and illicit drug use.  Indeed, it was the father’s progression to the use of LSD that seems to have precipitated the parents’ separation.

33. I have earlier referred to the ages of the children the subject of these proceedings.  Ms B interviewed the children for the purpose of her report.  At the stage of those interviews, L was 11 years and four months of age and P was aged nine years and five months of age. 

34. Given their respective ages and Ms B’s descriptions of them it can be accepted by the Court that weight should be given to the views they have expressed as recorded by Ms B.  Both children related to Ms B as is the fact that it is a long time now since they have seen or communicated with the father.  Both children expressed negative memories of him.  L described the father as “mean” and P added that, “he never played with you”. 

35. Both children struggled to make any positive comments about the father or to record any positive memories concerning their experiences of him.  Despite not being directly questioned by Ms B on the topic of sexual abuse L volunteered the allegation earlier referred to.  He referred to it for the expression of the wish that he did not wish to see his father, and said:

    …If we ever went back I reckon he’d do something to [P] and something even meaner to me.

36. When both children were asked how they would feel about seeing their father L responded that he would be “scared”.  P replied that she would be:

    Terrified.  I don’t like Dad any more.

37. Both children recorded that even if someone else was there they would feel scared.  L also expressed negative views concerning the paternal grandparents.  It is clear from the statements the children made to Ms B as she recorded in her report that they identify strongly with their mother and the maternal extended family as their family grouping.  Both children indicated that they were very happy at their current school where they are doing well.  Both related they had many friends, and that they participated in co-curricula activities.  Both children described themselves to Ms B as happy, and Ms B also assessed the mother as being, in summary, a capable and caring parent. 

38. Ms B made the observation, perhaps obvious in circumstances where the father has not sought contact or a relationship with the children in recent times; and that it appears he has chosen not to be involved in these Court proceedings; that there is a concern in terms of the father having any commitment to a relationship with the children.  I find that to be so.

39. I accept Ms B’s opinion that the mother has demonstrated the ability to ensure the children’s physical and emotional needs are well met, and I accept that they presented as happy and well cared for. 

40. I accept Ms B’s opinion that there were no indications that the children were at risk of any harm in the mother’s care, and that she presented as having a strong commitment to their care and to have a close bond with them.  I accept Ms B’s opinion that both children are disconnected from the father, and that they present as fearful of him, and as opposed to spending any time with him.

41. Ms B observed at [106] of her report:

    Whilst the children were clear they did not want contact with their father, it is pertinent to consider that at their age and developmental stage they do not have the capacity to understand the full and long term implications of these comments.  In the long term as they grow and further develop their identity they are likely to need to resolve issues with their father.

42. Whilst the mother had originally sought a positive order that there be no contact or communication as between the children and their father hereafter she now adopts the orders that are sought by the ICL.  Relevantly, the orders as sought by the ICL contain the notation that whilst the orders intentionally make no provision for the children to spend time or communicate with the father it is noted that how the children spend time or communicate with him shall be determined by the mother as an incident of her sole parental responsibility for the children, that being the order sought in that respect. 

43. Given the contents of Ms B’s report and her assessment of the mother, and this present state of things concerning the children, I am satisfied that it can be left to the mother if she has sole parental responsibility for the children to take an informed decision about when and if the children have time or communicate with the father in future.  Of course, there is always the prospect of the father seeking to reactivate this Court’s jurisdiction concerning parenting orders, although, of course, he would then face the prospect of having to demonstrate a material change in circumstances if final orders are now made which do not include any orders for time and communication.

44. Ms B assesses that any reintroduction of the father to the children would need to be carefully managed.  She recommends that if it were to occur the children should attend counselling prior to and during any reintroduction, and it is also her recommendation that any time with the children occur on a supervised basis with a neutral supervisor as available at a contact centre.  Ms B opines that there would need to be further assessment before any supervised time could be considered. 

45. Much of what has already been said resonates with one or more of either the primary considerations or the additional considerations set out in s 60CC of the Act.

46. Dealing with the additional considerations in s 60CC(3) I am satisfied that the orders now sought by the ICL and the mother are consistent with the views expressed by the children as recorded in the report of Ms B to which I have referred. I am satisfied that both children have the maturity or level of understanding that results in the conclusion that weight should be given, and significant weight should be given, to their views. It is plain that the children have a strong and positive relationship with the mother, but that currently their relationship with the father can be described as non‑existent, and certainly not meaningful.

47. The children also seem to have positive relationships with extended members of the maternal family, but have expressed negative views concerning the father’s parents.  It is clear that the mother has done, essentially on a sole parent-type basis, all of the parenting of these children now for a significant time.  Conversely, it is clear that the father has failed to take opportunities to participate in the lives of these children at least so far as participating in these proceedings are concerned or in seeking to have some time and communication with the children whilst these proceedings were on foot.

48. I am satisfied that the mother has fulfilled her obligations to maintain the children whilst the father has not.

49. The parenting orders now sought will not effect any relevant changes in the children’s circumstances because they will see simply a continuation by way of formal order of what is happening in practical terms in their lives.

50. I accept that the mother has the capacity to provide for the needs of the children including their emotional and intellectual needs given the description of relevant matters contained in Ms B’s report.  Equally I am satisfied that the father does not have the capacity to provide for their needs including their emotional and intellectual needs.

51. Aside from his non-participation in these proceedings it is now the uncontested fact that historically the father’s abuse of alcohol and abuse of illicit drugs compromised his parenting capacity.  Equally clear there are significant questions and reservations about the father’s attitude to the children and to his responsibilities of parenthood demonstrated by his non-participation in these proceedings, and the feature that he has made no attempts to seek to have time or communication with them for a long time, including in the post-acquittal period.

52. I have already referred to the feature that I am satisfied that there has been family violence within the meaning of the Act based on the evidence advanced by the mother and as recorded in Ms B’s report.

53. I am satisfied that it would be preferable to make final orders now as sought by the ICL and the mother as it seems that would be least likely to lead to the institution of further proceedings in relation to the children.

54. I am satisfied that it would not be in the best interests of the children to apply a presumption that the parents should have equal shared parental responsibility for them.  In any event I am satisfied that that presumption is displaced for the reasons already outlined.

1. I am satisfied that it would be in the best interests of these children that the mother have sole parental responsibility for them.  Again, that order simply gives formal effect by order to what is occurring practically in the lives of these children currently and has been occurring now for some significant time given the father’s non-participation in their lives.  As earlier referred to I am satisfied, given the assessment of the mother made by Ms B, that she has the capacity to deal with any future need in the interests of these children to re-establish any relationship as between the children and the father as sought by them.

2. I am satisfied that it would be in the children’s best interests for there to be an injunction pursuant to s 68B of the Act restraining the father from entering upon or approaching within 100 metres of the mother’s residence or any school the children attend. As earlier noted the children not only expressed negative views of the father, but those views include statements to the effect that the father is an object of fear or terror for the children. It would obviously be deeply disturbing to these children to be confronted by the father unannounced either at their home or at their school. Consequently, I am satisfied that leave ought be granted for these orders to be provided to the principal of any school attended by the children so that practical effect can be given to the observation just made.

3. For these reasons I am satisfied that it is in the best interests of these children that orders are made as per the minute of orders set out in the Case Information Document filed by the ICL on 2 December 2014 with the only amendment to those orders being the correction to the children’s surnames in conformity with the names they now have by reason of the change of name effected by the mother through the state authorities. 

4. For these reasons I make those orders.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 December 2014.

Associate: 

Date:  3 December 2014