Morris and Finamore

FAMILY COURT OF AUSTRALIA

MORRIS & FINAMORE

[2008] FamCA 530

FAMILY LAW – CHILDREN – with whom a child should live – non compliance with procedural orders by the wife – undefended hearing - history of drug abuse by both parties – father has taken appropriate steps to equip himself for care of the children – mother continues to experience difficulties – presumption under s61DA rebutted – sole parental responsibility to the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

APPLICANT:

MR MORRIS

RESPONDENT:

MS FINAMORE

INDEPENDENT CHILDREN’S LAWYER:

TIM ADEY

FILE NUMBER:

ADF

1764

2006

DATE DELIVERED:

14 April 2008

PLACE DELIVERED:

Adelaide

EXTEMPORE REASONS OF:

Burr J

HEARING DATE:

14 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Nicholls Gervasi and Co

COUNSEL FOR THE RESPONDENT:

Litigant in Person – No appearance

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Adey Lawyers

Orders

That the children R born … October 2001 and J born … May 2003 live with the father.
That the father have sole parental responsibility for the said children.
That the mother spend time with the said children at such times and upon such conditions as may be agreed between the mother and the father and as reflected in writing.
That the father identify, enrol in and complete a course of effective parenting conducted by Anglicare or such similar community organisation.
That the father forthwith make arrangements to secure an assessment of the children by the Child and Adolescent Mental Health Service (“CAMHS”) in order to secure therapeutic assistance for the said children if deemed by CAMHS to be appropriate and that he then ensure that the said children attend all such sessions as recommended by CAMHS.
That the appointment of the Independent Children’s Lawyer be discharged.
That all matters be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1764 of 2006

MR MORRIS

Applicant

And

MS FINAMORE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

I have before me for determination what were originally competing Applications between the parents of R, who was born in October 2001, and J, born in May 2003. Thus, R is six years of age and J almost five years of age.
However, as is detailed in the Outline of Case document provided by Counsel for the father, the mother's attention to the proceedings of recent times has been scant, and in fact in many respects she has failed to comply with a number of Orders of this Court, particularly as to the preparation of the matter for trial, leading to the Court making orders on 27 March 2008 that if she did not file the appropriate Rule 15 Affidavits and other documents by 7 April 2008, then the matter was to proceed undefended.
Mr Atkinson, who had appeared for the mother throughout recent times in these proceedings attended today as a matter of courtesy to the Court, having filed a Notice of Ceasing to Act on 11 April 2008. With the Court's permission, he withdrew from the proceedings. The mother was then called and there is no attendance by her here today.
I have the comprehensive affidavit that has been filed by the father in these proceedings and I have had regard to the materials contained in that affidavit. More significantly, I have had regard to the contents of a Family Report prepared by Mr P dated 18 March 2008.
The father seeks orders that the children live with him and that he have sole parental responsibility for the two boys. He acknowledges that it is appropriate that the children have an opportunity to know their mother and to spend some time with her, but in circumstances where their safety and welfare is treated as the paramount consideration.
He gave brief evidence to the Court this morning to provide assurances that he would continue to do what he can to improve his parenting capacity and make life better for the children. He further indicated that he would not stand in the way of the children developing a relationship with their mother, but in circumstances where the children were safe and they were not exposed to any risky behaviours by the mother.
Before I make these Orders, I need to have regard to the relevant provisions of the Family Law Act. There were significant amendments made to the Act which came into effect on 1 July 2006, and I now deal with the provisions that the legislation dictates are appropriate for my consideration.
The principal one is section 60CA, which requires me to make any orders in relation to the children in terms that must regard their best interests as being the paramount consideration. To arrive at that conclusion, the Court is guided to relevant matters that need to be considered. Those relevant matters are set out particularly in section 60CC of the Act.
I need consider primary considerations and additional considerations. There are two primary considerations, the first being the benefit to the children of having a meaningful relationship with both of their parents. Presently, the mother has disqualified herself from enjoying a meaningful relationship with her children, and the benefits to the children of such a relationship at present must be in question.
It will be for the mother to establish to the father's satisfaction, or possibly to the Court's satisfaction, that she can now play a meaningful role in their lives if such a relationship is to be re‑established in the fullest sense. As it is, she has not seen the children since the Family Assessment report prepared by Mr P in March 2008 and that was the first time that she had seen them since Christmas 2007. They are hardly the actions of a mother who wishes to establish a meaningful relationship with the children. Prior to that, her approach to the parenting of her children had been fractured, inappropriate in so many respects, and inattentive to all of the necessary detail that would ensure the wellbeing of these two young boys.
I need also consider, as the other primary consideration, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Both parties have a history of drug abuse but, to the father's credit, I am satisfied that he has taken many appropriate and important steps in order to equip himself to care for the boys in an appropriate manner and to not expose himself to the possibility of lapses in his parental responsibility by again embarking upon ill‑advised journeys into the drug culture. From the materials I have seen, I am satisfied that it is a credit to him that he has placed himself in a position to be available to the two boys when at a period in these proceedings the Court was concerned that neither parent was going to be able to fulfil that role.
The mother still struggles in that regard. Various aspects of Mr P’s family assessment, but particularly his reference to her presentation at the appointment that he set up in order to prepare the report to the Court, indicate that she is likely still to be having significant issues with respect to matters of drug abuse. The father in his evidence this morning also indicated that he has some serious concerns about where she is presently living and the company she is keeping. Therefore, the Court needs to be careful to ensure that the children are protected from any harm that may come to them whilst the mother is still unable to present herself as appropriately drug‑free and exercise all of the very important roles and responsibilities that attach to parenthood.
The additional considerations are many. Not all of them will be relevant to my determination today. The first that I need consider is any views expressed by the children and any factors such as the children's maturity or level of understanding that the Court thinks are relevant to the weight that it should give to the children's views.
Mr P does not directly relate any views expressed by the children in his report to the Court, but in paragraphs 42 and 43 he describes their presentation during his interview of them. It would be fair to say that he was impressed with the improvement in the children since early 2007, particularly as to their emotional stability and I take it as an expression of the view by the children in the first sentence of paragraph 43 of Mr P’s report where he says:
“Both boys talked happily and confidently about their life with [the father].”
Subparagraph (b) requires me to consider the nature of the relationship of the children with each of the parents and any other persons, including grandparents. Again, Mr P confirms that the children appear happy in their life with the father and that he provides all appropriate parenting, although he does make a couple of recommendations as to where the father may gain some additional assistance in that regard. However, I can be left in no doubt that the relationship of the children with their father is an excellent one and one which benefits the children.
The relationship the children have with the mother is more troublesome. The father indicated, and I quote from paragraph 43:
“Both talked about missing [the mother] and said they wanted to see more of her.”
And then further in that same paragraph:
“and [R] talked about his sadness that [the mother] had often not turned up for scheduled visits with them.”
Then in paragraph 44 he describes a brief observed interaction of the children with each of the parents and, in relation to the mother, describes the children as having been "very excited to see her". Further, he records, "There was much evident mutual affection." However, he then describes a deterioration in the behaviour of the children and records that the mother’s "appropriate attempts to calm them were ineffectual". What is disturbing then is that Mr P records, "[the mother] became tearful and requested that the interaction finish." That clearly indicates that the relationship between the children and the mother is still a very troubled one and that the mother is not yet ready and able to offer herself in an effective parenting role to the children.
Subparagraph (c) requires me to consider the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I am satisfied from the materials that I have read and from the father's evidence today that he will do what he can to facilitate an ongoing relationship between the children and their mother, but in circumstances where he will do his level best to ensure their safety and security.
For all of the reasons I have already outlined, there are severe question marks about the mother's willingness and ability to facilitate her own relationship with the children. Only time will tell.
Subparagraph (d) requires the Court to consider the likely effect of any changes in the children's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person, including grandparents. I am not proposing that there be any change. The father has been the carer for the children for a long period of time now. The proposals that he has advanced to the Court for the time the children might spend with their mother in the future are appropriate given the mother's presently somewhat dysfunctional lifestyle and capacity to commit to the children and their needs.
Subparagraph (e) is not relevant.
Subparagraph (f) is as to the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs and, I believe, has already been covered in my remarks as to other similar provisions, particularly as to subparagraph (b). In short, I am satisfied that the father has demonstrated an appropriate capacity to care for the children and to provide for their needs.
Subparagraphs (g) and (h) are not relevant for my consideration today.
Subparagraph (i) requires me to consider the attitude of the children and the responsibilities of parenthood demonstrated by each of the children's parents. The remarks I have made in relation to subparagraphs (b) and (f) cover adequately the matters that need be dealt with pursuant to this subsection, and I do not intend to repeat them.
Subparagraphs (j) and (k) are not relevant for my determination today.
Subparagraph (l) requires me to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. In my view, that situation is easily accomplished by making the Orders sought by the father both as to the children living with him and also as to him having sole parental responsibility for them.
In the event that such an Order was not made, the possibility looms of the mother seeking to intervene in significant and important decisions in relation to the children. In my view, on the evidence before me it would be inappropriate that she did so. That may change in the future, but the mother still has a long way to go in terms of properly developing her parental attitudes and responsibilities. The father ought to be unencumbered in his parental role and needs to be in a position to make all relevant and necessary decisions as to their care as they arise.
Subparagraph (m) requires me to consider any other fact or circumstance that the Court thinks is relevant. The Orders sought by the father are supported by the Independent Children's Lawyer, but the Independent Children's Lawyer has nonetheless made a number of recommendations that need to be added to the Orders being sought by the father and as detailed in the Outline of Case document filed today.
The father, both through his Counsel and in his evidence before the Court, indicated that he agreed with the Orders being sought by the Independent Children's Lawyer in that regard and, indeed, supported the intention behind them.
I then need to consider subsection (4) of the Act which is as to the extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibilities as a parent, and in particular, the extent to which each of them:- (a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I am satisfied that I have dealt with all relevant factual matters in my earlier treatment of Section 60CC, and it is not necessary for me to repeat those matters again when dealing with this subsection. I am satisfied that the father has taken all relevant steps and done what he can to maintain a relationship between the mother and the children. I am not so satisfied in relation to the mother.
I then need to consider Section 61DA, which is the presumption of equal shared parental responsibility. For the reasons I have already outlined when dealing with subsection (3)(m) of section 60CC, it is, in my view, appropriate to make an Order setting aside that presumption and order that the father has sole parental responsibility. In my view, that reflects the best interests of the children.
In short, in applying the provisions of Section 61DA(4), I am satisfied that the evidence to which I have referred rebuts the presumption and there are many clear indicators of the fact that the children's best interests would be served by the father having sole parental responsibility.

I certify that the preceding thirty three (33) paragraphs are a true copy of the Ex-tempore reasons for judgment of the Honourable Justice Burr

Associate:

Date: 14 April 2008

[2008] FamCA 530

14 April 2008

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Family Law

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