Munts and Custer and Samuels

[2009] FamCA 1316

FAMILY COURT OF AUSTRALIA

MUNTS & CUSTER & SAMUELS [2009] FamCA 1316

FAMILY LAW – CHILDREN – child related proceedings

Family Law Act 1975 (Cth)

FIRST APPLICANT: Ms Munts

SECOND APPLICANT: Ms Custer

THIRD APPLICANT: Mr Samuels

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners

FILE NUMBER: SYF 4522 of 2005

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 24 November 2009;
18 & 23 December 2009

REPRESENTATION

FOR THE FIRST APPLICANT:	In person
COUNSEL FOR THE SECOND APPLICANT:	Mr G Foster
SOLICITOR FOR THE SECOND APPLICANT:	Valenti & Valenti, Solicitors
FOR THE THIRD APPLICANT:	Inperson
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr M Auld
INDEPENDENT CHILDREN’S LAWYER:	Tiyce & Partners, Lawyers

Orders

Orders in relation to the first applicant

1. That Ms Munts, the mother of A born in March 1996 and B born in January 1998 (“the two children”) have sole parental responsibility for the two children and that they continue to live with Ms Munts.

2. That by consent Orders are made in terms of paragraphs 1, 2 and 3 of the document entitled “Final Orders” sought by Ms Munts filed in Court on 24 November 2009 and set out as follows:

   1.That the two children will visit MR SAMUELS (“the father”) as follows:

   (a)no less than three (3) times per year;

   (b)such visits to be arranged by Ms Munts, subject to the availability and convenience of the two children and Ms Munts;

   (c)Ms Munts to be present at such visits;

   (d)Order 1(a) is made in contemplation of the father remaining incarcerated in a prison no further than two (2) hours drive from the residence of Ms Munts.

   2.That Ms Munts will facilitate the two children reading any written correspondence sent from the father as follows:

   (a)any written correspondence sent by the father to the two children must be addressed to Ms Munts only;

   (b)any such written correspondence will be sent no more frequently than once per month;

   (c)the two children reading the whole or portions of any such written correspondence shall be at the discretion of Ms Munts only.

   3.That Ms Munts will facilitate the two children sending written correspondence to the father as follows:

   (a)whenever the two children express the desire to do so to Ms Munts;

   (b)otherwise than as contemplated in Order 3(a) in order to provide the father with copies of school reports and photographs of the two children and any other such documents Ms Munts deems appropriate.

3. That the father is restrained from speaking to the two children by telephone when they are spending time with the paternal grandparents other than with Ms Munts’ prior consent.

4. That the two children may further visit and/or communicate with the father with the discretion of Ms Munts and not otherwise.

Orders in relation to the second applicant

1. That by consent Orders are made in terms of paragraphs 1, 2, 4, 5 and 6 inclusive of the “Minute of Orders” sought by Ms Custer the mother of Y born in February 2000 and Z born in February 2003 (“the children”) filed in Court on 24 November 2009 and set out as follows:

   1.That the children live with Ms Custer.

   2.That Ms Custer have sole parental responsibility for the children.

   4.That the children communicate with the father by letter and cards at the time of their birthdays, Christmas and one other time mid year.

   5.That the father communicate in writing with the children on one occasion each month with such communication to be read by Ms Custer prior to the children reading the letters.

   6.That Ms Custer will provide the children’s annual school reports, photos and any information of serious medical issues to the father.

2. That the father is restrained from speaking to the children by telephone when the children are spending time with the paternal grandparents other than with Ms Custer’s prior consent.

3. That the father is restrained from telephoning the children at the Ms Custer’s home, other than with Ms Custer’s prior consent.

4. That the children may visit the father and communicate with him with Ms Custer’s discretion and not otherwise.

5. That all outstanding applications are dismissed.

6. That the proceedings are removed from the Active Pending Cases List.

NOTATION:

A.The Court notes the Undertakings of the paternal grandparents, Mr and Mrs Samuels (Snr) dated 18 December 2009.

IT IS NOTED that publication of this judgment under the pseudonym Munts and Custer and Samuels is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF4522 of 2005

MS MUNTS

First Applicant

And

MS CUSTER

Second Applicant

And

MR SAMUELS

Third Applicant

REASONS FOR JUDGMENT

Introduction

1. In these proceedings orders are sought by the parties in relation to the four children.

2. The first and second applicants are the mothers of the four children.

3. Ms Munts (hereinafter referred to as “Ms Munts”) is the mother of the following two children:

   (a)A Samuels also known as A Munts who is 13 years of age having been born in March 1996.

   (b)B Samuels also known as B Munts who is 11 years of age having been born in January 1998.

4. The other applicant mother, Ms Custer (hereinafter referred to as “Ms Custer”) has two children as follows:

   (a)Y Custer who is 9 years of age having been born in February 2000.

   (b)Z Custer who is 6 years of age having been born in February 2003.

5. Mr Samuels (hereinafter referred to as “the father”) is the father of all four children.

6. The father was sentenced in 2009 on a serious charge.  The sentence that was delivered is for him to be imprisoned to serve a non-parole period of 20 years commencing in late 2005 and expiring in late 2025, with an additional term of six years commencing in late 2005 expiring in late 2031.

7. As had been made clear by the judgment on sentence, the first date for release of the father is late 2025.  Accordingly, the father is currently serving his sentence.

8. The father appeared unrepresented throughout the hearing by audio-visual link from prison.

9. Arrangements had been made and the appropriate orders also executed to enable the father to continue to appear this morning.  However, due to a communication breakdown within the relevant administration of the Department of Corrective Services, the father does not appear before me this morning.  I have had my Associate inform the appropriate administrative officer at the Correctional Centre that a sealed copy of the orders will be sent in the first instance by facsimile transmission followed by a hard copy in an envelope addressed to the father.

10. The parties had been engaged in litigation in Family Court proceedings for a considerable period of time.

11. The first case management directions were made on 13 November 2001.  Subsequent orders including interim parenting orders were made on 23 January 2002, 25 November 2005, 13 December 2006, 26 June 2006, 19 December 2006, 2 October 2007, 12 December 2008, and 24 April 2009.

Historical background

1. The relevant historical background is as follows.

2. The father and the two mothers cohabited at different times and for varying periods.

3. For almost all of the lives of the four children, each of the mothers has been the primary carer of each child.

4. The paternal grandparents, who were previously parties to these proceedings, have been very much involved in maintaining their relationship with the four children and supporting them in such manner as they considered appropriate.  Unfortunately, from time to time, some of their actions have resulted in controversy between themselves and the two mothers in relation to one or more of the children.  However, matters appear to have settled down in that regard.  Indeed, the paternal grandparents have provided undertakings to the Court, to which I will subsequently refer.

5. Amongst the areas of controversy has been that the paternal grandparents have permitted calls to be made to their home by the father with a view to him also speaking to one or more of the four children, at times without the knowledge of each of the two mothers, and in particular Ms Munts.

6. Fortunately, from the children’s viewpoint those matters seem to have been resolved.  Hopefully, some reassurance will be provided to Ms Munts in view of the undertakings to the Court provided by the paternal grandparents, being fully aware that in the event of both or either of them having been found to have breached such undertakings, that there may be serious repercussions for them.

7. A court appointed expert, Professor Q has prepared a number of reports.  Those reports are all in evidence.  The most recent of such reports is that dated 5 May 2009.

8. I accept Professor Q’s evidence, whether by way of the reports to which I have referred, or otherwise in the course of her oral evidence.  Professor Q was cross-examined by or on behalf of each of the parties.  Professor Q’s evidence impressed me as being professional, well considered, sensitive, appreciating all the nuances that may have or which, in her view, have already affected the four children, in particular the two eldest children.

9. Professor Q provided a number of assessments and opinions in relation to each of those children, in particular the material contained on pages 26 to 30 of her report dated 5 May 2009.

10. I will give weight to those opinions and observations as seems appropriate, taking into account other matters to which I will refer.

11. The Director-General of the NSW Department of Community Services, as it was then known, now called Department of Human Services, was a party to the proceedings.  Orders have been made discharging the Director-General as intervener from further participation in the proceedings.

12. The proceedings came on for hearing before me on a final basis in which the less adversarial practice and procedure was utilised.

13. The first day of that hearing being a continuous hearing, as opposed to the conventional hearing being a climactic hearing, took place on 18 August 2009.

14. On that day the parties gave evidence.

15. In addition, the parties entered into terms of settlement reflected in interim parenting orders made that day, principally concerned with the ongoing relationship and time to be spent by the four children with the paternal grandparents.

16. The paternal grandparents were then discharged from the proceedings.

17. Issues for determination were crystallised and directions made for the ongoing hearing.

18. The proceedings were then fixed for continued hearing on 24 November 2009.

19. On 24 November 2009 the hearing continued.  I acceded to the application of the father that he be permitted to call oral evidence from the paternal grandmother, notwithstanding that he had not complied with the directions in relation to filing and service of affidavits of such witness or witnesses upon whom he sought to rely.  I permitted that evidence to be given.

20. That evidence became incomplete and as a consequence the proceedings were then adjourned part heard to 18 November 2009.  The paternal grandmother was cross-examined, oral submissions were made, and I reserved judgment to be given today.

Issues – sections 60CA and 60CC

1. The principles that must be applied are that any parenting order that is made must be for the paramount interest of each of the four children as required by s.60CA of the Act.

2. For the purpose of determining what is in the best interest of a child, I am required to consider where relevant the particular considerations set forth in s.60CC.

3. In these proceedings, there are two primary considerations, namely the benefit to a child of a meaningful relationship with each of his parents and, secondly, the desirability of preventing the exposure of a child to family violence as defined in the Act.  The latter primary consideration did not become relevant in the proceedings and no submission was made in relation to it.

4. The reason is obvious, namely that the father is incarcerated and will continue to be so for many years.

5. Consequently, family violence as defined in the Act does not arise for consideration.

6. Abuse, such as verbal abuse, is not part and parcel of the definition of family violence.  It may arise only in these proceedings, in terms of direct verbal communication between the father and both or either of the mothers.

7. There is no suggestion that the father could be verbally abusive to all or any of the four children.

8. Notwithstanding evidence of family violence that has occurred in the past in terms of the father being the perpetrator against each of the mothers, it is not suggested that this may reoccur for the reasons that I have referred to.

9. In addition, there is no evidence that recent telephone communications between the father and Ms Custer and/or the paternal grandparents in terms of some suggestion of abusive words directed to Ms Munts have taken place.

10. That is fortunate not only from viewpoint of both mothers but also the four children.

11. The views of the four children are disparate.

12. The evidence, which I accept, particularly from Professor Q, is that the two eldest children have a need for not only communication with the father but also to be able to visit him at the prison.  The two youngest children appear to also have a need for communication, but not necessarily to the same degree as the two eldest.  So far as visits to the prison are concerned, that is not a matter which stands out as a view that either of them have expressed, either directly or indirectly, based on the evidence given by Professor Q.

13. So far as the nature of the relationship between the mothers and four children are concerned, there is no issue that they have anything other than loving parents who have been devoted to the ongoing care and upbringing of their children in difficult circumstances.

14. Accordingly, I find that the two mothers have a loving relationship with each of their children and have the appropriate parental attitude in that regard.

15. The two mothers have understandably expressed concern, caution, and anxiety in relation to future communication, whether by telephone, letter, or direct visits with the father.

16. It is a prospect of concern to them, particularly so far as visits to the prison which may take place.

17. Each of the mothers has sought orders to which I will subsequently refer.  The evidence, which I accept, is that Ms Munts and Ms Custer have applied themselves in a sensitive way in terms of appreciating the respective needs of their children so far as their relationship with the father is concerned and, at the same time, considering the impact upon those children, of visits to the prison, quite apart from telephonic communication.  They have each facilitated in different ways communication taking place with the father other than by visits to the prison.

18. There is no evidence before me that each of the mothers have acted in any irresponsible fashion in that regard or are likely to do so.

19. I am satisfied that their relationship with the children and their attitude as well as their capacity to provide for all of the needs of each of the four children is beyond reproach.  Their discretion can be relied upon, especially in view of positive acknowledgements that they gave in their evidence so far as the relationship between the four children and the father is concerned.

20. The father has a relationship with the four children marked by his love for them and anxiety to maintain his relationship with them.

21. The paternal grandparents, I accept, are and have been in a very difficult emotional position.  They support their son, the father.

22. At the same time, I do not doubt that they love the four children.  They have arguably breached previous interim orders in relation to communication with the father and their four children, not to mention the unwise action in failing to keep Ms Munts informed of telephone conversations that have taken place at their home between the father and one or more of the children.  Those failures on the part of the paternal grandparents had potentially the prospect of undermining the relationship between the four children and their mother who has the prime responsibility on a day to day basis for the care and upbringing of those children.

Conclusion

1. I have referred to undertakings that the paternal grandparents have now provided.  I will in due course accept those undertakings and they will be part of the formal record of these proceedings.  The question of the effect on each of the four children of, in particular, visits to the prison is the subject of detailed written and oral evidence provided by Professor Q.

2. There is no doubting Professor Q’s qualifications and extensive experience.  I have already stated that I accept her evidence completely.  Consequently, it is apparent that the matter of visits by the eldest two children should take place, but with appropriate consideration of the number of visits that should occur in any one year.

3. So far as the youngest two children are concerned, Professor Q’s opinion was that it is not in their best interest at this stage of their young lives for such visits to occur.  I have concluded that orders will be made as substantially sought by each of the two mothers.  My reasons for doing so are as follows.

4. The two mothers have quite clearly not alienated or influenced any of the four children against the father.  Ms Custer, for example, has permitted telephone calls to take place at her own home.  Ms Munts has demonstrated indirectly that her children have not been acting in any antagonistic way so far as the father is concerned.  That must surely be very much to her credit as a mature, sophisticated and sensitive parent.

5. Consequently, their unqualified discretion as to communications in the future, whether by telephone or letter, as well as visits to the prison can be relied upon.

6. Each of the mothers has the ongoing daily care and responsibility for their children.  They will be doing so for many years without any tangible assistance by the father due to his incarceration.

7. Consequently, the mothers’ views and submissions against a background of the findings made by me must receive considerable weight, and that is what I propose to do in these proceedings.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  28 January 2010