NORFOLK & MALONE & ORS
[2012] FMCAfam 1263
•23 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NORFOLK & MALONE & ORS | [2012] FMCAfam 1263 |
| FAMILY LAW – Children’s issues – where final orders made for the child aged nearly 8 to spend regular time with the paternal grandparents – where parenting orders reached as to the father’s time with the child upon his release from prison and for the child to live with the mother – dispute as to equal shared parental responsibility – whether the child should visit the father in prison for Christmas – whether the father is permitted to drive with the child in the car after the expiration of his disqualification period – whether the mother permitted to travel overseas on holiday with the child – held presumption of equal shared parental responsibility did not apply due to family violence – held in child’s best interest for mother to have sole parental responsibility – held in child’s best interests not to spend time at the prison with the father at Christmas – held that the mother is able to travel overseas with the child as mother is not a flight risk – held that the father is not to drive with the child in the car until two years of driving, free from driving offences occur. |
| Family Law Act 1975, Pt.VII, ss.60B, 60CC, 61DA , 65DAA |
| Johnson & Johnson (2000) 201 CLR 488 Re F Litigants In Person Guidelines [2001] FamCA 348 Goode & Goode [2006] FamCA 1346 Heath & Hemming [2011] FamCA 749 |
| Applicant: | MS NORFOLK |
| First Respondent: | MR G MALONE |
| Second Respondents: | MR C MALONE & MS MALONE |
| File Number: | ADC 3836 of 2008 |
| Judgment of: | L. Turner FM |
| Hearing dates: | 12 & 13 September 2012 |
| Date of Last Submission: | 13 September 2012 |
| Delivered at: | Darwin |
| Delivered on: | 23 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGinn |
| Solicitors for the Applicant: | David Burrell & Co |
| The First Respondent: | In Person |
| The Second Respondents: | In Person |
ORDERS BY WAY OF FINAL ORDERS
That all previous parenting orders made before 13 September 2012 are hereby discharged.
That these orders are to be read in conjunction with the parenting orders made by consent:-
(a)On 13 September 2012 between the mother, the father and the paternal grandparents as to the grandparents spend time with arrangements between the children; and
(b)On 13 September 2012 between the mother, the father and the paternal grandparents as to where the child is to live and spend time with arrangements with the father upon his release from imprisonment.
That the mother have sole parental responsibility for the child [X] born [in] 2005.
That the mother make arrangements for the child to telephone the father on Christmas Day 2012.
That the father not be permitted to drive the child in a motor vehicle until such time as the father produces to the mother proof that in the two years since the return of his licence the father has not been convicted of any driving offences.
That if the father is permitted to drive the child in a motor vehicle pursuant to Order (5), then such permission will be withdrawn if the father is subsequently convicted of any driving offence.
That within 28 days the father sign the passport application for the child with the mother to be responsible for all costs associated with the obtaining of the passport.
In the event that the father refuses to sign the passport application in accordance with Order (7), then a Registrar of the Court is hereby authorised pursuant to these orders to sign the passport application on behalf of the father.
That the passport is to be retained by the mother.
That the child be at liberty to travel overseas with the mother without the permission of the father and for this purpose the mother will provide to the father at least 28 days prior to travel:-
(a)Written notice of their intention to travel overseas with the child;
(b)A copy of any air tickets;
(c)A copy of the travel itinerary; and
(d)Details of a telephone number where the child can be contacted.
That within six months of the father’s release from imprisonment the father complete the “Kids Are First” parenting program and provide written proof of completion to the mother.
IT IS NOTED that publication of this judgment under the pseudonym Norfolk & Malone & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3836 of 2008
| MS NORFOLK |
Applicant
And
| MR G MALONE |
First Respondent
And
| MR C MALONE & MS MALONE |
Second Respondents
REASONS FOR JUDGMENT
Introduction
The applicant mother and the first respondent father are the parents of a young boy [X] who turns 8 next [month omitted].
The second respondents are the paternal grandparents.
On the first day of hearing final orders were reached by consent between the parents and the paternal grandparents setting out time arrangements between the paternal grandparents and the child.
Extensive orders were also reached regarding the child living with the mother and spending time with the father once the father is released from prison in or around April 2013.
Agreement however could not be reached as to parental responsibility, the time [X] is to spend with the father at Christmas 2012, whether the father can drive with [X] in the car and whether there should be any restrictions on the mother travelling overseas with the child.
Issues
The issues requiring determination are:-
a)Does the presumption of equal shared parental responsibility apply?
(a)If the presumption does not apply, who should have parental responsibility?
b)What time should the child spend with the father over Christmas 2012?
c)Is the father permitted to drive with the child in the car?
d)Is the mother permitted to travel overseas with the child?
e)Additional Issues.
The father is self represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and the Re F Litigants In Person Guidelines [2001] FamCA 348 the court process was thoroughly explained to the father and every attempt was made to ensure that there was fair process to the father during the course of the hearing.
The father was made aware of the relevant sections in the Family Law Act 1975 pertaining to parenting matters.
The father elected not to cross-examine the mother.
The mother provided additional oral evidence.
The father was cross-examined.
Witnesses were not called and the family report writer was not required to give evidence.
In addressing each of the issues:-
a)I have read the previous court orders;
b)I have read all the material as marked in the court file;
c)I have read and considered the two family reports of Ms C;
d)I have considered the oral evidence of the parties;
e)I have applied the recommended pathway as set out in Goode & Goode [2006] FamCA 1346 and noted the process adopted by Kent J in Heath & Hemming [2011] FamCA 749;
f)I have considered the relevant sections of Part VII Family Law Act 1975 and in particular section 60B, section 60CC and section 65DAA;
g)Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties; and
h)In what follows, statements of fact constitute findings of fact.
Does the presumption of equal shared parental responsibility apply?
Section 61DA(1) Family Law Act 1975 provides that when making a parenting order the court must apply the presumption that parents are to have equal shared parental responsibility for the child.
The presumption however does not apply where there is reasonable grounds to believe a parent has engaged in family violence or abuse towards the child.
Conclusion
I find that as there has been a history of family violence, including a Domestic Violence Restraining Order in 2008, and breaches of such orders resulting in the father being imprisoned, then the presumption of equal shared parental responsibility does not apply.
If the presumption does not apply, who should have parental responsibility?
The father is seeking an order for equal shared parental responsibility whereas the mother wants sole parental responsibility.
Conclusion
I find that it is in the child’s best interest for the mother to have sole parental responsibility based on the following:-
a)The mother has been the parent primarily responsible for making all the long term decisions for [X] due to:-
i)The father not always being physically present such as when the father was in remand or in jail;
ii)The father not always being mentally present with his substance and alcohol abuse, his depression and anxiety and head trauma due to a car accident.
b)Since 2010 the mother has solely made the decisions as:-
i)The father temporarily moved to Western Australia informing the child that he no longer could see him;
ii)The father’s incarceration in prison.
c)I give no weight to the father’s concern that a sole parental responsibility order will result in the mother not making the child available to spend time with the father;
d)The evidence supports that in the past the mother has supported the child’s time with the father, and the consent orders now reached demonstrate that the mother intends to support the arrangements again once the father has been released from prison;
e)With such a long history of criminal activity and where the father’s attempts in the past to deal with his drug alcohol and anger issues have failed, it is an unknown as to how the father will cope upon his release in April 2013;
f)The father’s lack of insight into his behaviour and his failure to learn lessons from his past mistakes is evident in his conversations with the report writer in 2009 and his subsequent behaviour which has resulted in another term of imprisonment
g)I find that it is not in the child’s best interest for there to be equal shared responsibility where it is an unknown factor as to whether the father will have the ability to be involved in future decision making for [X];
h)The father admits in cross-examination that in the past he had “come and go out of the child’s life” and that the mother has had to make all the decisions for [X] since late 2010 as the mother “had to assume sole responsibility for his actions” and that the mother has “done a good job”;
i)The father is not critical of any long term decisions the mother has made for [X] in the past.
What time should the child spend with the father over Christmas 2012?
The father over Christmas wants [X] to visit him at [C] which is the low security prison where the father is now incarcerated.
The visit is for three hours.
The mother is opposed to the child attending [C] to see the father.
Conclusion
I find that it is not in [X]’s best interest to attend at [C] for a visit at Christmas celebrations based on the following:-
a)Attendance to see the father at the prison will cause confusion for [X] because:-
i)In 2009 [X] was taken to see the father in prison at least four times by the paternal grandmother under a cloak of secrecy as the mother had not given permission for these visits; and
ii)The father had lied to the child stating that he was “at work.”
b)The child is now older and understands what a jail is;
c)The mother admits when asked by the child as to why there are jails her reply was that prison is a place “where bad people go when they do wrong thing.”;
d)I find the father’s criticism of the mother telling the child the truth is unjustified and another indication of the failure of the father to acknowledge the seriousness and impact of his past criminal behaviour;
e)[C] is located 180 kilometres from Adelaide which would require the child to be in the car for four to five hour return trip;
f)Although [X] is speaking to the father on the telephone regularly, and in the past has received mail from the father, the child has not physically seen his father since his incarceration in April 2011;
g)For the child to see the father for the first time in eighteen months in a prison situation, I find, would be confronting and stressful for [X], a child who is described by the report writer as “timid” and “tentative” and by the mother as a “shy quiet bo.”;
h)The mother is concerned that the child will be stressed by visiting the father in jail. The father admitted in cross-examination that he “understands why the mother has concerns about a child going to the jail”;
i)The father has the option to apply for home detention which would secure an immediate release. This would enable the father to spend time with [X] at Christmas at his residence.
Is the father permitted to drive with the child in the car?
The mother does not want the father to drive the child because of his extensive history of driving related offences.
The father denies that he putting the child at risk by driving with the child.
Conclusion
I find that the evidence supports that the child’s safely is at risk if the father was permitted to drive with the child based on the following:-
a)The father’s driving offences history is extensive and far reaching;
b)In addition to being extensive the offences have been of such a serious nature that some convictions have resulted in the father serving jail time;
c)The father has lacked judgment as demonstrated by incidents of driving whilst drunk or under the influence of drugs and driving dangerously. One such incident resulted in causing bodily harm to another;
d)The father upon his release on parole will not have a licence as his licence has been disqualified for twelve months;
e)The father admits in cross-examination that “his driving history doesn’t fill one with a lot of confidence” and that he will need to “prove” himself as “being a safe driver.”
I accept however that a permanent ban on the father driving with the child will curtail father and son activities.
I therefore order that upon the father providing to the mother proof that for two years after his return of licence that his driving history is free of any criminal convictions then the father is permitted to drive with [X] in the car.
This permission however is to be automatically provoked upon the father being convicted of any further driving offences.
Is the mother permitted to travel overseas with the child?
The father is opposed to the [X] having a passport and travelling overseas with the mother and wants the child placed on the airport watch list based on the following:-
a)The mother’s husband comes from England and the father does not know what impact the marriage may have on the mother or the child’s citizenship;
b)The father is concerned that he may not see the child again if he permits travel overseas for [X];
c)The father is not certain as to the mother’s parent’s birth nationality rights as her mother is Burmese and the father is Dutch Indonesian;
d)The father previously did not sign the passport application for the child as it was a blank form.
The mother wants a passport in case the mother and her husband wish to visit the husband’s relatives overseas.
The mother at this point in time has no plans to travel overseas.
The mother is prepared to provide details to the father prior to any overseas travel involving the child.
Conclusion
I find that it is appropriate for a passport to issue for the child and that the mother be permitted to travel overseas provided appropriate notice is given to the father based on the following:-
a)There is no history of the mother travelling anywhere with the child and not informing the father;
b)I give no weight to the father’s evidence at [20] of his August 2012 affidavit where [X] told his father about a conversation his mother had with him saying “when you are older we will go overseas to live” as details as to when the conversation occurred and the context in which it occurred were not provided;
c)There is no evidence to support that the mother is a flight risk as evidenced by the following:-
i)The mother was born in Australia and has lived in Australia all of her life;
ii)The mother deposes that although her husband was born in the United Kingdom, Australia is now his home;
iii)The mother has purchased a house with the husband;
iv)The mother is due to have a baby with her husband in [omitted] 2013;
v)The mother is in employment in Adelaide as a [omitted];
vi)The mother is currently undertaking a Masters in [omitted] course to advance her career;
vii)The mother deposes at [55] of her September 2012 affidavit that “I have no intention whatsoever of relocating permanently overseas”;
viii)The mother has agreed to consent orders for the father’s regular time with [X] upon his release from imprisonment.
d)I find that as the child is now part of an extended step family which shortly will include a sibling, that the child needs to be given an opportunity to get to know relatives of the step father which may involve overseas travel;
e)Travelling with young children broadens their education with exposure to different countries and different cultures;
f)The father admits in cross-examination that overseas travel “would benefit the child”;
g)The father further admits that if the overseas travel was for a holiday only the father “would have no objection to him travelling” and agrees that there was “no risk” in the mother returning the child from holiday.
I find that there is no necessity for the child to be placed on an airport watch list as there is nothing in the evidence to suggest that the mother intends to travel with the child and not return to Australia.
I further find that there is no necessity based on the evidence for the mother to provide a bond prior to travelling overseas with the child.
Additional issues
The report writer suggests that the father would benefit from completing the “Kids Are First” program.
I find that this would be beneficial to the father and such an order has been made.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of L. Turner FM
Associate:
Date: 23 November 2012
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