Michel and Bois

[2007] FamCA 750

FAMILY COURT OF AUSTRALIA

MICHEL & BOIS [2007] FamCA 750

FAMILY LAW - CHILDREN – Final parenting orders

Family Law Act 1975 (Cth), ss. 60B(1), 60CC(1), 61DA, 65DAA(1) and 65DAAA(2)

FATHER: Mr Michell

MOTHER: Ms Bois

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4032 of 2007

DATE DELIVERED: 28 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 28 June, 2007

REPRESENTATION

SOLICITOR FOR THE FATHER: M.K. Steele & Giammario

THE MOTHER: In person

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Bowlen Dunstan & Associates

Orders

1. That the father and mother have equal shared parental responsibility for the children D Bois (also known as D Michel) born in November 1992 and S born in July 1994.

2. That the children live with each of the mother and father on a week and week-about arrangement, subject to the following:

   (a)The children shall spend time with the father from 10.00am to 6.00pm on each Father’s Day;

   (b)The children shall spend time with the mother from 10.00am to 6.00pm on each Mother’s Day; and

   (c)The children shall communicate with and spend time with the mother and father at such other times as are agreed between the parties from time to time.

3. That the mother be and is hereby restrained from assaulting, threatening, denigrating or harassing the children or either of them.

4. That the parties do all acts and things necessary to arrange for the children to meet with the Independent Children’s Lawyer at a time and place nominated by the Independent Children’s Lawyer and it is requested that the Independent Children’s Lawyer explain to them the nature and effect of the parenting orders made this day.

5. That subject to funding from Victoria Legal Aid, the Independent Children’s Lawyer place an advertisement in the general public notices of the Herald-Sun newspaper requesting that Mr W contact the Independent Children’s Lawyer as soon as practicable.

6. In the event that Mr W’s whereabouts are ascertained (whether in response to the advertisement or otherwise) the Independent Children’s Lawyer serve a sealed copy of these orders on him by sending it by ordinary pre-paid post to him, together with copies of all court documents filed in the proceedings and all earlier orders made in the proceedings.

7. That a sealed copy of these orders be sent by the court to the mother at the address set out in the Notice of Ceasing to Act filed by her solicitor this day, being … .

8. That the mother and Mr W each have leave to make application to discharge or vary the final parenting orders made this day within 21 days of service of a sealed copy of these orders on them. 

9. That upon compliance with the provisions of this order, the Independent Children’s Lawyer be discharged.

10. That all extent applications be otherwise dismissed.

11. That the matter be removed from the list of cases awaiting finalisation.

12. That 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.

13. That the reasons for judgment this day be transcribed and copies made available to the parties.

14. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Michel & Bois.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4032 of 2007

MR MICHEL

Father

And

MS BOIS

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This case concerns the parenting arrangements that should be made for the children who live with Mr Michel and Ms Bois as part of their family, being D Bois (known as D Michel) born in November 1992, and S, born in July 1994.  The girls are 14 and 13.

2. D’s father is Mr W.  He has played no role in her life, and the man she has always known as her father is Mr Michel.  His solicitor has made reasonable attempts to ascertain the whereabouts of Mr W, without success. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents;  the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

CHRONOLOGY

1. The parties lived together from 1992 until 1997.  When they met the mother was pregnant with D.  D’s father never had any contact with D.  On 12 April 2007 the father filed an application seeking that the children live with each parent, week and week-about, that they have time on special days with each parent, and that the mother be restrained from assaulting, threatening, denigrating or harassing the children or him.

2. The parties attended a case assessment conference on 21 May 2007.  Orders were made, providing for the wife to file and serve documents and for the father to file and serve a form 4, as the matters raised by him went to protection of the children from a perceived risk of harm.

3. The parties agreed to obtain a family report;  before the Court is a report prepared by Ms N, a psychologist, dated 25 June 2007.  She met with the parties and the children.  In May the matter was assessed as Magellan and the usual procedural orders were made, including an order for the appointment of an independent children's lawyer and it was requested that a report be prepared by the Department of Human Services.  That report was received.  It notes that the parties had agreed about shared care arrangements and intended to advise the court of that arrangement. 

4. The mother took part in the family report process and spoke with protective workers.  It was anticipated she would attend Court today.  Her solicitor filed a notice of ceasing to act this morning.  The mother was called at 10.00 am. and called again at 11.30 am.  She has failed to appear. 

5. Having regard to the contents of the Department of Human Services report and the report of Ms N, I am comfortable about determining this case in the mother’s absence.  Ms N is very complimentary about the father's commitment to ensuring that the children have a continuing relationship with their mother.  That is a refreshing change.  The father has had legitimate concerns about the children's safety but has been prepared to work with their mother, and with professionals, to maintain the children's relationship with her and to help her overcome problems.  He has seen that as being in the children’s interests and he deserves a deal of credit for that.

6. Ms N notes that the mother described a childhood of extreme violence, abuse and depravation.  She has struggled with aspects of parenting, which may be attributable to her own experience as a child.  She was subjected to both sexual abuse and physical abuse as a young child.  For a period she was a heroin addict.  She described herself, at the time she met the father, as being “in a huge mess” and pregnant with D.  D's father, a drug addict, disappeared.

7. In this case the primary considerations must be balanced and, I am satisfied, priority given to protecting the girls from physical and emotional harm.

8. Amongst the additional considerations to which the court must give weight are the views of the children.  Given the ages of D and S, those views need to be given considerable weight.  Both girls spoke with Ms N, in the presence of their father (at their request) and also on their own.  They did not want to say anything in front of their mother;  D said (demonstrating some insight) : "If I say what I want to say and I say something intelligent, she'll think he" - that is, Mr Michel - "told me to say it."  D did most of the talking but S was not shy, and if she did not agree with D, S made that clear. 

9. Ms N described both girls as being very impressive in their presentation and age appropriate in their development, save that D was an extremely mature young woman.  D displayed a great deal of insight into her situation and into the relationship she has with her mother.  Both girls made it clear that they want to spend more time with their father, and gave clear and well-thought out explanations.  D spoke of arguing with her mother, because she wants more freedom and her mother thinks she is still a baby.  Both girls expressed some concern about the behaviour of neighbours in proximity to their mother’s home, as opposed to the quiet and peaceful environment at their father's home.

10. D and S were asked about the allegations of physical violence.  D said that her mother sometimes “snapped”, and “loses it”, and when that happens, she “hits and hits”.  She said she cried because she was scared, not because it hurt, and that when this happened, her mother's face changed and “it got scary and it was weird”.  S agreed that their mother “got weird and snapped”, she said she was frightened when that happened.  Nevertheless, both girls made it very clear that they wanted to spend time with both parents. 

11. The girls were also asked about their father's discipline.  They said that their father had smacked them but they could not remember the last time that had happened. 

12. I place weight on Ms N’s opinion that there was “a great deal of protecting of the mother” by the father, and also by her daughters.  In her opinion, the mother was psychologically very fragile and volatile but, to her credit, appeared to be aware of that and wanted to do something about it.  The mother impressed Ms N as an intelligent, motivated woman who deeply regretted the violence and aggression she had demonstrated towards her daughters and wanted to be able to prevent it happening in the future.

13. Ms N's opinion was that, given the mother's personal history of trauma and abuse, she needed long‑term treatment to deal with these issues.  In the short term, she might find that a program for parenting teenagers would provide some useful strategies for resolving conflicts.

14. I am satisfied that the mother's coping capacities have been severely challenged by the fact the girls have now reached the age she was when she began to be sexually abused.  She has the added pressures of full‑time employment. 

15. In Ms N's opinion, it would greatly benefit the relationship between the mother and the children were they to spend half their time with their father.  The children themselves presented compelling arguments for this.  Ms N’s opinion was that they would benefit from having more exposure to their father’s world view, and from experiencing an alternative way of being in the world.

16. The orders proposed by the father, endorsed by the independent children's lawyer, are consistent with the consequences of the presumption of equal shared parental responsibility.  If parents are to be equally responsible for their children's upbringing, the Court must consider whether spending equal time with both parents would be in the children's interests.  I am satisfied that such an arrangement is likely to be in the best interests of D and S.  Both parents should be congratulated for coming to that conclusion.

17. The best prognosis for building resilient adults is for children's parents to cooperate in their upbringing.  Orders in the terms proposed are likely to be in D and S's best interests.

I certify  that the preceding
23 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.