Merry and Brown

[2013] FamCA 1081

FAMILY COURT OF AUSTRALIA

MERRY & BROWN [2013] FamCA 1081

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – order that child live with mother – order that mother have sole parental responsibility for the child – order that father spend no time with or communicate with the child unless agreed in writing – father has liberty to apply in respect of orders

Family Law Act 1975 (Cth)

MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

APPLICANT: Ms Merry

RESPONDENT:	Mr Brown
INDEPENDENT CHILDREN’S LAWYER:	Mr Theobald

FILE NUMBER: HBC 226 of 2012

DATE DELIVERED: 12 December 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Theobald

Orders

1. All previous parenting orders in relation to B born … 2006 (“the child”) be discharged.

2. Ms Merry (“the mother”) shall have sole parental responsibility for the child.

3. The child live with the mother.

4. Mr Brown (“the father”) shall not spend time or communicate with the child except as agreed in advance in writing between the mother and the father or as is otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

5. 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.

6. All extant applications be dismissed.

7. This matter be removed from the list of cases requiring determination.

8. Leave be given for the father to apply to this Court, on or before Wednesday

   
   

   12 February 2014 to have these orders remain interim orders and to enable the matter to be heard on their merits.

9. In the event that no such application is made to the Court as set out in order 8 above, these orders shall as and from that date become final orders of this court.

10. The appointment of the Independent Children’s Lawyer be discharged as and from 14 February 2014 or such other period as the Court may otherwise order.

11. The hearing dates of 3, 4, 5, 6 & 7 February 2014 be vacated.

IT IS DIRECTED

1. The exhibits filed today remain on the Court file.

2. A copy of the reasons for these orders be taken out and placed on the Court file.

3. The Independent Children’s Lawyer forward a sealed copy of these orders, within fourteen (14) days to the father by ordinary pre-paid post at his last known address as set out in the Notice of Ceasing to Act filed 8 November 2013.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merry & Brown 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 HOBART

FILE NUMBER: HBC 226 of 2012

Ms Merry

Applicant

And

Mr Brown

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings between Ms Merry and Mr Brown, the mother and father respectively, in relation to their child B (“the child”) who was born in 2006 and will be celebrating his eighth birthday in about six or seven weeks from today.  These proceedings were listed before me for mention today to vacate some hearing dates.  It was submitted by the Independent Children’s Lawyer that all proceedings should be dismissed and that the interim orders remain in place, but with leave for an application to be made to have the matter re-listed by the father on the giving of eight week’s notice.

2. Counsel for the mother had written to the father on 29 November 2013 at his last known address, indicating that the matter be listed for an undefended hearing at some other time.  I am concerned for this child that he has been involved, as has the mother, in litigation in the Court for almost two years now which, for him, represents a quarter of his life.  I intend to deal with the matter on the evidence that is before me, but leave the door partially ajar so that the father can come back at some time in the future if he chooses to do so.  It is worthwhile setting out the history of the proceedings which lead me to adopt this course.

3. The original application was filed by the mother on 29 March 2012.  The proceedings came before a registrar of this Court on the day that it was filed and an Independent Children’s Lawyer was appointed, given the serious allegations of violence.  On 18 April 2012, the matter came before the Court, and the father was represented by Mr Crotty and the proceedings commencing 25 May 2012.  They were then adjourned to the Registrar on 13 June 2012 and eventually came before me on 26 July 2012.  At that time, I was satisfied on the material before me that an order should be made that the child lives with the mother, and the father be restrained from communicating or spending time with the child.

4. I ordered a family report and noted that s 61C of the Family Law Act 1975 (Cth) applied in relation to parental responsibility. I also requested a report in relation to injuries to the child’s mouth, which appear to have occurred by reason of an assault on the child whilst in the care of the father. Proceedings went back before the Registrar on 7 November 2012, then on 4 December 2012, it came before me and was listed for a final hearing for five days commencing 13 May 2013. On 18 April 2013, the matter came before me, and this time the father was represented and the hearing date in May was vacated. The matter was listed for five days hearing, commencing 3 February 2014 in Hobart.

5. Since that time, the father’s solicitor has filed a Notice of Ceasing to Act.  The matter came before a registrar of this Court on 20 November 2013 and was referred back to me, given the father’s failure in many ways to participate in the hearing.  The Independent Children’s Lawyer wrote to the father on 3 December 2013, informing him that the hearing date would be vacated and that the current orders were likely to remain in place.  On 29 November, Mr Fitzgerald, from the Legal Aid Commission, wrote to the father, indicating that they wanted the matter brought to an end, although each of them indicated that the interim orders ought to continue.

6. The father was called today and there was no appearance by him.  There appears to be no records on the file or records from the Independent Children’s Lawyer or counsel for the mother that the father has endeavoured to contact them.  I am satisfied that the father has, at this stage, abandoned the proceedings.  The question I then needed to turn my mind to was whether I should adopt the course, that is, to adjourn the proceedings and leave the interim orders in place, which would mean that the child will have hanging over his head these proceedings which have taken up a quarter of his life so far or whether I ought to deal with them on a final basis.

7. I have determined to deal with them on the final basis, although I will give the father eight weeks leave to apply to come back to the Court so that the door is not fully shut.  In terms of the proceedings, the final hearing in the proceedings was assisted by the family report prepared by Ms C, dated 27 November 2012, where she recommended that the Court determine the level of risk of harm to the child in spending supervised or unsupervised time with the father.  The father needed to address, she said, his issues of alcoholism and other matters, and that the child receives some counselling.

8. The report was, in many ways, telling to read in terms of the child.  I also have before me the affidavits of the mother, filed 29 March 2012 and 13 July 2012.  The mother has had the care of the child for all of the child’s life.  The mother asserts that she was the victim of family violence and this is supported by evidence of Ms D in her affidavit filed 29 March 2012.  It is clear on the affidavit evidence and from the family report that the mother is otherwise properly caring for the child and that the child has been exposed to enormous violence in the care of the father.

9. The father had filed an affidavit in which he denied violence, at least to some extent.  Of course, he has not intended to prosecute or rely upon that material.  The mother is aged 38.  The father is aged 48.  As I said, the child is aged seven, almost eight, and I note the history contained in the mother’s affidavit. 

THE LAW

1. When determining orders the approach is governed by Part VII of the Act.  The objects of Part VII of the Act and the principles underlying them are set out in s 60B.

2. Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under that Act may make such parenting order as it considered appropriate.

3. The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act. 

4. If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent.  In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable.  If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).

5. These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply. 

6. I accept the evidence of the mother, although I note that it has not been tested, and I accept the evidence of the Family Consultant, although I note it has not been tested, as I accept the evidence of Ms D.

7. In terms of the relevant section 60CC factors, I note that these proceeding commenced before the 2012 amendments, and accordingly the previous factors are those to which I should have regard.  There is a benefit in a child having a meaningful relationship with a parent provided it is safe to do so.  It is not clear the exact nature of the relationship between the child and the father at this stage.  There have been some levels of relationship.  The Family Consultant observes that the father had an on and off relationship with the child, and I note the conclusion contained in paragraph 47 of the family report. 

8. This is a case where the risk to the child is the most significant feature.  There is evidence and this Court is able to infer on that evidence that there has been an assault on the child that was likely to be an assault by the father.  There is evidence before the Court of serious violence.  I don’t intend to go through it.  It’s contained in the affidavit material and in the family report.  The Family Consultant noted there were high risk factors for the child spending unsupervised time with the father or some limited time. 

9. I am satisfied that the child would be at unacceptable risk of abuse or neglect or violence in the unsupervised care of the father.  The child 12 months ago expressed to the Family Consultant that he did not wish to see his father.  Whilst the child was young, given the circumstances I give some weight to that statement.  The mother is the primary carer of the child.  The father has had an on and off relationship with the child. 

10. As to the willingness of the mother to facilitate a relationship with the child, she has endeavoured to do so, but in a way that was protective of the child.  At least on one occasion, the father has withheld the child from the mother.  The orders I am making will effect a change, in that the child will not see the father unless the father makes arrangements with the mother or otherwise applies to a court for orders to spend time.  There are practical difficulties in that.  There would need to be some supervision at least if some time was put in place.  The mother has displayed an ongoing capacity to care for the child.  The father has not. 

11. In terms of family violence, I reiterate what was said in the affidavits and in the family report.  I also note the orders that were referred to by the mother and the circumstances in which she has found herself. 

12. This is a matter where there has been serious violence.  I had considered whether to make an interim order, but that would, in my view, inevitably lead to proceedings being brought back to Court and further prodding and poking of this child, which I do not believe would be in the child’s best interests given the history that this child has had to endure over a long period of time.  I have had regard to the circumstances since the child was born under s 64 and s 64A. 

13. In terms of parental responsibility, this is a matter where the presumption does not and could not apply, and the mother has been undertaking parental responsibility effectively since the child was born, and that should continue.  In terms of residence, there is no serious evidence that there ought to be a change to residence, and having regard to the matters which I have alluded to earlier, there ought to be an order that the child live with the mother. 

14. In terms of spending time and communicating with the father, I am very concerned about the level of violence, and particularly the impact of that violence upon the child as expressed to the Family Consultant, and, of course, the impact of that violence upon the mother.  This is a matter where, on the evidence as it stands, and I reiterate the comments I made as to the evidence being untested, there ought to be an order that the father not spend time nor communicate with the child except as agreed in writing between the father and the mother or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

15. Because the father was not present in Court, and there may be some sound or sensible reason for him not to be here, I will stay the order from becoming a final order for a period of eight weeks from today’s date to enable the father to apply to the Court for an order relisting the matter and having it determined, if he seeks, on its merits.  I will direct that he be served by ordinary prepaid post with a copy of the order, and I otherwise am satisfied that the arrangements put in place or which I propose to put in place are in the child’s best interests.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 December 2013.

Associate:     

Date:              12 December 2013