Minter and Westaway

[2008] FamCA 1130

FAMILY COURT OF AUSTRALIA

MINTER & WESTAWAY [2008] FamCA 1130

FAMILY LAW – CHILDREN – Parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Minter

RESPONDENT: Mr Westaway

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6917 of 2003

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Milford

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr J. Bult

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: McCluskys

Orders

1. That the mother have leave to proceed on an undefended basis.

2. That all previous orders relating to the child … born the …day of December 2000 be discharged.

3. That the child live with the mother.

4. That the mother have the sole parental responsibility for the child.

5. That all extant applications be otherwise dismissed.

6. That all proceedings be removed from the list of cases awaiting a hearing.

7. That the Independent Children’s Lawyer be discharged.

8. That the reasons for judgment delivered this day be transcribed.

9. 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6917 of 2003

MS MINTER

Applicant

And

MR WESTAWAY

Respondent

REASONS FOR JUDGMENT

1. These are proceedings relating to a child who was born in December 2000.  The child is almost 8 years of age.  The application relates to parenting orders.

2. On 14 July this year the case was listed before me. Both mother and father appeared and were represented by legal practitioners. I ordered that the matter be adjourned for mention before me at 10 o'clock on 3 November in anticipation that it would then be listed for final hearing. In preparation for that final hearing I made an order under s 62G of the Family Law Act 1975 (Cth) (“the Act”) that the parties attend upon the family consultant who had already undertaken a family report in October 2005.

3. On 3 November 2008, Mr Milford appeared for the mother as he does today and Mr Bult appeared as the Independent Children's Lawyer as he also does today, but there was no appearance by the father. On that day I made orders that the matter be listed for final hearing today, 21 November 2008 and that the mother serve upon the father an affidavit upon which she intended to rely with a set of orders that she proposed to seek.  I ordered that those documents be served by post to an address in Western Australia.  That address for the father came from the Notice of Ceasing to Act provided by his then legal practitioner.

4. I also ordered that the Independent Children's Lawyer advise the father in writing that if he failed to attend today, the mother would most likely apply to proceed on an undefended basis.  It was clear when I made that order that the father was no longer represented by the practitioner who had represented him in not only the previous hearing before me but apparently for some time.  That solicitor filed the Notice of Ceasing to Act on 7 October 2008.

5. It is to be noted as I have already mentioned in that document that the solicitor said to the court that the father’s address was … in the State of Western Australia and, importantly, that the next hearing was at 10 o'clock on 3 November 2008.   I am satisfied upon the advice I have been given from the Bar table this morning that the letter to which I have referred in the earlier orders has been sent by Mr Bult to the father and there has been no response.  Mr Bult also indicated to me that he had left a message on the voice machine of the father, but there has been no response to that.

6. In addition, I have had Mr Milford tell me just what action he took pursuant to my orders and he has indicated that the mother filed her affidavit on 13 November and upon its return to his office a sealed copy of that was sent to the father.  The importance of that is that the affidavit sets out the orders that she proposed to seek.

7. The father was called at quarter past 10 today and has not appeared and there is no correspondence or message from any legal practitioner appearing on his behalf. Importantly for this hearing, the father has not filed any material subsequent to when the matter was listed before me. I am satisfied that the father knows of the proceedings and has chosen not to participate. The power to hear a case on what is often as an undefended basis is set out in Rule 11.02 subrule (2)(c) of the Family Law Rules 2004 which provides that if a party does not comply with these rules or procedural orders that the Court may amongst other things determine the case as if it were undefended.

8. An undefended application does not mean, as it does in some jurisdictions, that the complying party obtains a judgment by default.  In this case the mother still has to satisfy the Court that the orders she is seeking are in the best interests of the child the subject of the application.  I am satisfied that this is a case where I should proceed for the sake of the child as well as the mother.  If the father wishes to pursue his responsibilities as a parent and cannot reach agreement with the mother, he will have to satisfy the Court in future that he has a basis to participate and something to offer the child.

9. I say that in this particular case not only for the record, but also for the fact that the mother has sought an order that prior to the father filing any further application, he undergo not only an anger management course but also a parenting course and various drug screenings.  I will not make that order in this case predominantly because, apart from the fact that the father will have to undergo a number of steps before he can file an application, when he does ultimately - if he ever does - file an application seeking some time to be spent with the child, he will have to satisfy the court that he has circumstances which have changed.

10. This case has a long and tragic history.  The proceedings first began in December 2003 and there have been numerous appearances over the years since then, not to mention a family report in 2005.  In my view it is time for this litigation to come to an end.  When I made the orders in July 2008 it was clear then that there was a significant dispute between the mother and the father over the child.  That is the reason why I made the order for updated report by the family consultant.  It is now accepted as a fact that the father did not participate in the report of the family consultant.

11. I have a report from Mr S dated 9 October 2008.  Mr S made endeavours to contact the solicitor for the father.  Mr S was told that consent minutes had been prepared but not signed by the parties.  He was told that the father lived in Perth and had applied to attend interviews by telephone.  On 27 August this year, Mr S noted that in a telephone conversation which was ultimately confirmed by a fax transmission, the father's solicitor confirmed that the father had advised that he would be returning signed minutes of consent orders and that therefore the family report interviews would not be required.  As a result of those indications, Mr S contacted the solicitor for the mother and was told that consent orders had been negotiated but not signed.

12. Over some days at the end of August and into as late as October, Mr S noted that he had made a number of telephone calls to the father's solicitor, but was told attempts were still being made to obtain instructions, but sadly the father was not contactable.  The father's solicitor then sensibly filed a Notice of Ceasing to Act.  Mr S then prepared a report indicating that, although he had done a family report in September 2005 and was well aware of the circumstances of the family, it was quite clear that nothing much further could be added.  Mr S noted that prior to returning to Perth in 2007, the father had spent nine months in jail and his understanding was that the father had not spent time with nor communicated with the child for any extensive period.  Mr S then concluded that it was pointless to continue preparing any report when he could not establish the father's current disposition in relation to seeing the child.

13. A clear indication was not only given to Mr S but also in a letter filed in August made from Hutchinson Legal indicating that the father did intend to sign and return minutes of consent orders for exchange with the mother's solicitors on the basis that the parties had settled. 

14. There are two important points to make.  The first is that I do not have the report from Mr S as I had anticipated.  The second is that it seems on the correspondence that there was agreement between the parties that was to be incorporated into orders that would have had the effect of obviating this hearing.  Those minutes are attached to the affidavit of the wife and notwithstanding they are not signed, they should be taken into account.

15. They provide that, inter alia, the child live with the mother and that she have sole responsibility for the child.  There is no specific provision in the order for time to be spent between father and child, but there is a notation that the mother undertake to pass on to the child any items such as presents or letters forwarded to her by the father.

16. The last order in this case of any substance was that made by Senior Registrar FitzGibbon on 13 December last year.  On that date all parties were present and represented by lawyers.  The orders were made not by consent of the parties that the father spend time and communicate with the child on the first and second Saturday of each three-week cycle from 11 am to 5 pm for a period of six weeks, at all times in the presence of the father's partner and supervised by the maternal grandparents with changeover occurring at a restaurant.  After the three-week cycle was to conclude, the time was to be extended from 11 am to 5 pm on each alternate Saturday and that that time was to be unsupervised.  There were also orders made for telephone communication.

17. At one level it would appear that the parties had sorted out their differences in the litigation sense.  However, the mother's evidence to which I will refer in a moment is that the father has had limited time with the child and has not communicated with her whilst he was imprisoned. 

18. I have been conscious of the fact also that a reason for concluding this matter is that the child has been attending a clinical psychologist.  The psychologist according to the mother was of the opinion that any time spent between the child and her father, and in particular any reintroduction of time, should take place and be supervised at a contact centre.  However, she pointed out that the father had failed to comply with many of the previous orders and the underlying theme is that he is unreliable.  She said that even in relation to telephone calls she had done things such as preparing the child to await the call of her father and when it did not happen the child became extremely disappointed, irritable, and difficult to control.

19. From what I can glean from various material it seems the father has moved to Western Australia with his girlfriend, and even if he had some uncertainty about the legal process, it cannot be lost on anyone that he must be aware of the existence of the child, his obligations in relation to her as a parent, and more importantly by virtue of the orders that I made in July at which time he was legally represented, he knew the matter was to be heard.  It seems therefore that I can only presume he has not any significant interest in participating in the child’s life, let alone in relation to these proceedings.

20. The mother filed her affidavit on 13 November 2008.  She referred to the fact that she shared a relationship with the father for approximately three years and lived with him on and off between 1999 and May 2002.  The child was born in that relationship.  She said that the relationship between she and the father was marked by violence, drug-taking and general criminality on his part.  She said that he was imprisoned for eight months for assault in March 2003.

21. Between December 2004 and May 2005 at a time when the father had an application before the court to vary his contact with the child, she said there was very limited contact in any event.  Mr Bult, who was the independent children's lawyer, has told me today that he had spoken to the child and she indicated that between December 2007 - being the orders to which I referred - and April 2008 she enjoyed seeing her father and was disappointed that there had been no ongoing relationship.  That is a very telling and an issue in this case.

22. Back in May 2006 there were orders providing for graduated contact, initially to be supervised and subject to drug screening.  The mother says that the father has never subjected himself to drug screening and the matter lapsed when he was again imprisoned between November 2006 and August 2007.  When the father issued the application, it came before the court as I have already mentioned.  He was that time living in regional Victoria and she was living in the Melbourne metropolitan area.  She said that the father complained that he could not afford to travel to Melbourne often, and as a result of that the contact not only did not proceed regularly, but ultimately it petered out.

23. The mother's evidence is that the father rang her mobile telephone occasionally to speak to the child, but more often than not, was simply passing on abusive messages through the child to her, and in one conversation threatened to kill her, her husband and the two children of his relationship and that gave rise to the mother applying for and obtaining an intervention order in the Magistrates' Court at Ringwood.  That intervention order includes the child - it is current until the year 2018.

24. I referred to the fact that the father, through his practitioner, had indicated to Mr S that the matter was resolved.  It is important to note that there is no specific provision for contact under those proposals. 

25. This is a case therefore where the only evidence I have is that of the mother and it is evidence that the father has by virtue of the fact that he was served with the affidavit.  I have no reason to doubt the evidence of the mother. 

26. The mother has given evidence to me today confirming the contents of her affidavit are true and correct and the Independent Children's Lawyer has chosen not to challenge that evidence.  Mr Bult quite appropriately has told me that he does not oppose the orders that mother has sought, but on the other hand he does not consent to them either. 

27. The law relating to the determination of a parenting matter requires me to consider a number of things: s 60B of the Act sets out the objects of the legislation. It says that the objects are to ensure that the best interests of children are met by (a) ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child and (b) protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence, and (c) ensuring the children receive adequate and proper parenting to help them achieve their full potential, and (d) ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

28. The Act then sets out the principles underlying the objects of the Act. Those principles outline that it is the right of a child to know and be cared for by both parents and that the child has a right to spend time on a regular basis with and communicate on a regular basis with both parents. That is clearly not happening here.

29. As I earlier mentioned, the father may have a geographic problem and even a desire not to participate in the litigious process, but that cannot explain nor justify why he does not fulfil his obligation as a parent to ensure that the child knows about him and has an opportunity to communicate with him.  That is particularly so when, as the independent children's lawyer says, the child knows of him and enjoyed the time she spent with him.

30. One of the other principles underlying the objects of the Act is that parents jointly share duties and responsibilities concerning the care, welfare and development of their children. That also is clearly not happening here. It has always been an object of the legislation to ensure that parents agree about the future parenting of their children, and that also is not happening when a parent fails to discuss matters with the other.

31. Section 60CA says that when making a parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. The Court is obliged to look at the various matters set out in s 60CC of the Act.

32. In addition to considering the matter I have just referred to, the overall picture needs to be contemplated.  I am satisfied on what I have read that it is in the best interests of the child to make some of the orders to which the mother has referred.  Each parent of a child who is not 18 years of age has parental responsibility for the child and that is to continue subject to any order the court might otherwise make.  There is no suggestion in this case that the parents could realistically exercise equal shared parental responsibility, but I will return to that in a moment.

33. Section 60CC requires me to consider not only whether there is a meaningful relationship between each of the parents and the child, but also the necessity to protect the child from harm as I have indicated. It is disturbing in this case that the Ringwood Magistrates' Court took the view that it was necessary to include a child in the intervention order. I take the view that courts do not make orders lightly, and in these circumstances, I am then entitled to take into account that the mother is taking protective steps by taking out that order.

34. I have taken into account in this case the views expressed by the child through the Independent Children's Lawyer.  Having regard to the fact that she is only eight years of age, they are important but cannot be given much weight.

35. I am obliged to consider the nature of the relationship of the child with each of the child's parents and other persons who have a significant part in that child's life.  The mother has a very close and loving relationship with the child and I am unsure as to exactly what sort of a relationship the father has.  I am obliged to take into account the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  The father has simply abandoned the child.

36. The mother has indicated throughout, her desire for the child to have a relationship with the father, and that is indicated by the notation to the minutes of consent proposed orders some weeks ago.  I do not need to take into account the likely effect of any change in the circumstances in this case by virtue of separation from her mother because there is no application before me   for time to occur between father and child.   Whilst there may be a practical difficulty because the father is living in Perth, that still seems to me to be only one of the aspects of maintaining a personal relationship between father and child.  He has shown no interest in writing or sending documents or presents, nor is there any telephone communication occurring.

1. One of the other matters that I am obliged to take into account is the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs.  All of the evidence points to the fact that the mother is fulfilling that obligation, but I have no idea what the father can offer the child.

2. I have taken into account the attitude to the responsibilities of parenthood demonstrated by each of the parents.  I have already complimented the mother in her role in not only caring for the child and protecting her, but also offering to send on whatever things the father may provide for the child, but I am at a loss to understand what I can say about the responsibilities of parenthood being demonstrated by the father. 

3. There is clearly family violence involving not only the child in this case, but also her mother and the mother's husband with whom the child has a close relationship.  That family violence is shown by the family violence order and it is a final order.  I take all of those matters into account.

4. In relation to every case, the Court has to consider whether it would be preferable to make orders that would least likely lead to further proceedings.  To some extent, leaving the father to sort out the problems in the future of his relationship with the child means that he will potentially will have to make another application.  I cannot do much about that, but it seems to me that he will have a number of hurdles that he will need to jump.

5. Based upon all of those matters and on the evidence that I have found to be acceptable, I am satisfied that it is in the best interests of the child that she live with the mother and that I make no orders in relation to the father having time with her or communicating with her.

6. When the court deals with a parenting order, the starting premise is that the parties have equal shared parental responsibility.  The provisions in the legislation require a court to contemplate equal time unless it is not in the best interests of the child for that to occur.  This is classically a case in which an order for any time is not being sought and it is not appropriate in the circumstances to make an order that the parties have equal shared parental responsibility. 

7. Having made that order, it is then important that somebody have the parental responsibility.  Having regard to all of the evidence to which I have referred, it is appropriate for me to say that it ought be the sole responsibility of the mother to have that responsibility.

8. Accordingly, I propose to make orders in this case.

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 December 2008