Nugent and Patterson

[2014] FamCA 19

FAMILY COURT OF AUSTRALIA

NUGENT & PATTERSON [2014] FamCA 19

FAMILY LAW – CHILDREN – Parenting orders – undefended.

Family Law Act 1975 (Cth)

APPLICANT: Mr Nugent

RESPONDENT: Ms Patterson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12808 of 2007

DATE DELIVERED: 6 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Byrnes

SOLICITOR FOR THE APPLICANT: Clancy & Triado

THE RESPONDENT: No appearance

COUNSEL FOR THE ICL: Ms Agresta

SOLICITOR FOR THE ICL: Victoria Legal Aid

Orders

1. That the response of the mother filed 7 August 2013 is struck out.

2. That the father have leave to proceed with his application on an undefended basis.

3. That all existing parenting orders are discharged.

4. That the father have sole parental responsibility for the child N born … August 2006, (“the child”).

5. That the child live with the father.

6. That the maternal grandparents be at liberty to collect the child from school on the Tuesday during school term time and return him or make him available for collection by the father or his nominee at 6.30pm and if the mother wants to spend time with the child during that time the maternal grandparents are to be responsible for the supervision of her time with the child.

7. That any further time between the child and the mother be by agreement between the mother and the father.

8. That both parents be at liberty to obtain all school documents normally provided to parents from any school the child attends and each shall be responsible for any expense of the provision of those documents.

9. That the father inform the mother by text message or email immediately if the child suffers any significant injury or medical condition.

10. That the father provide to the mother any reports he obtains from any treating paediatrician of the child.

11. That the mother keep the father informed of her residential address and telephone and email contact details and the father keep the mother informed of his mobile telephone number and email address.

12. That any changeovers that do not take place at the school are to take place at the Suburb C Swimming Pool unless agreed otherwise between the parties.

13. That the Independent Children’s Lawyer is discharged from the proceedings.

14. That all outstanding proceedings are otherwise dismissed.

15. That the reasons this day be transcribed and be made available to the parties.

16. 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 by this Court under the pseudonym Nugent & Patterson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12808 of 2007

Mr Nugent

Applicant

And

Ms Patterson

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Despite a number of attendances at Court over 2013, a long litigation history and two specific orders requiring her to file affidavit material, Ms Patterson has not attended today for the listing of the final hearing of an application by Mr Nugent.  These two parties are the parents of N, (“the child”), who is seven years of age.  On 7 August last year the mother attended without legal representation before me, and after discussion and clarification of the parenting issues in dispute it was clear that the Court would be required to intervene in the child’s life to make orders. 

2. The hearing was then fixed and a timetable set for the filing of affidavit material.  The mother did not comply. 

3. On 21 November last year the mother attended before Registrar Field, and this time with legal representation.  Registrar Field extended the filing timetable.  Again the mother did not comply. 

4. Today the mother has been called and not attended.  The father has given evidence of the receipt of a text message yesterday from the mother;  it said she would not be attending.  It was caustic in its commentary, but none of the evidence I have read supports that sarcasm.   

5. The father applied to proceed on an undefended basis.  The order that I made on 7 August last year warned for the prospect of the exclusion of a party who failed to comply with the filing of material.  Sadly, it is the mother who has excluded herself from these proceedings.  The mother’s response of 7 August 2013 is therefore struck out. 

6. The father has leave to proceed on an undefended basis.  It is important to point out that the undefended hearing still requires the Court to be satisfied that any parenting orders are in the particular child’s best interests. 

7. Despite the protestations of the mother to the family consultant, I am satisfied that the father is an appropriate carer and decision maker for the child. 

8. I do not know what to make of the mother or of any role she might fulfil as a parent because she has failed, declined or refused to participate in what is a positive inquiry into the child’s best interests. 

9. The background only needs to be briefly stated:  the father is 34 years of age and the mother 31;  the parties began living together in January 2005 and the child was born in August 2006;  the mother and the father separated only the following year;  proceedings began in 2007 and final consent orders were made in June 2009.  Regardless of why those orders were made or their content, they have not worked. 

10. The father now seeks sole parental responsibility, an order that the child live with him, and that there be limited time between the child and the mother.  In my view it is proper to make those orders. 

11. The father relied upon three affidavits:  his own, which he confirmed by evidence in the witness box, and affidavits by his wife and his mother.  The Independent Children’s Lawyer relied upon the family report prepared by Mr B on 6 December 2013.  The father’s evidence is supported by his wife and his mother.  It can be encapsulated in the following:

    The mother has had a problem with alcohol for some years.  I can conclude that it is not only debilitating but also a cause of her frustration which is manifested in aggression, violence and indeed criminal behaviour.

12. The father said in his evidence that even during the very early days of the child’s life, if the mother was intoxicated he had to take care of the child.  He said he frequently organised for his mother to care for the child during the week at times when he was required to work, and the child spent time in his mother’s care on at least two business days per week prior to the parties actually separating.  During the time that he was at work the mother would increasingly make telephone calls to him indicating that she was beginning to drink and would become intoxicated.  It required the father to leave his work and return home.  He was fortunate that he had flexible work arrangements and that he was out on the road and in and out of an office where it was possible for him to take on that role. 

13. After the parties separated, the child lived primarily with the father, and the father has fulfilled the primary responsibilities of his care, supported by his mother.  When he separated, the father and the child moved into the home of the paternal grandparents.  There were a number of months during which time the mother did not see the child, but that was a choice that she made.

14. The evidence seems to be that subsequent to that time there have been periods of time where the mother has had the child but returned him early. 

15. The child was diagnosed with high functioning autism when he was two years old.  The manifestation of that problem was indicated by impaired social skills under which he avoided social interaction with other people.  He had difficulties communicating his feelings verbally and his speech was delayed.  He used non-verbal communication methods such as eye contact and facial expressions, and as is well known with children on the autism spectrum, he became confused easily and highly anxious in unknown circumstances.

16. The child enjoyed repetitive action and behaviour and obviously loved routine.  He became fascinated by technology and was very particular about food, and had great difficulties with physical coordination and fine motor vehicles.  All of that evidence was set out in the father’s affidavit filed in September.  A subsequent report by the paediatrician responsible for the care of the child has indicated a remarkable improvement, and to the extent that it is now even questioned whether he is still on the spectrum.  That is a tribute to the role that not only the father and his mother and wife have played, but I suspect also the role of the maternal grandparents.

17. Subsequent to the child being primarily in his father’s care there have been a number of professionals involved in his life.  The child attended an early childhood intervention program, and that required a number of attendances in a class environment.  That stopped when he began school.  He had speech pathology and swimming lessons as well as the Kumon system of assisting him with mathematics.  In 2013, the child began in Auskick, and that has assisted in his coordination and fine motor skills.  It also helps with his social skills in respect of teamwork.

18. In 2012, the child began school at the Suburb C Primary School, and the staff there were commended by the father as facilitating the child’s special needs.  They provided aide for the classroom.  Early in 2012 the aide was part-time, and then as funding was increased it went to 18 hours per week.  The father, despite an accusation by the mother, has been very involved in the school life, and the child is the only person who can really benefit from that.  In addition to that, the paternal grandmother works in the school tuckshop and there is close communication between all of the adults and, in particular, the classroom teacher and senior staff. 

19. As I had indicated, the child has been treated by a paediatrician Dr D, and all of the efforts that Dr D has put in have also assisted the child. 

20. Unfortunately, the mother has, for reasons that I do not understand, not been significantly involved in a lot of that.  All of that has simply meant that the father has taken on a far greater role than he would have otherwise had the mother continued to be the primary carer of the child.  Unfortunately or otherwise, the mother has chosen a particular pathway which has caused significant problems for the child.  The issue that I earlier mentioned about alcohol has been exacerbated by what would seem to be other medical problems.

21. Whether the alcohol begins it or is simply a manifestation of it, I am not entirely sure, but the mother has a record of police involvement and the Department of Human Services involvement, which is not at all in the child’s best interest. 

22. The mother has also, unfortunately or otherwise, not had steady employment and, as best as I can tell, at the moment she is on some sort of Centrelink benefit.  The mother also was a heavy smoker and ignored professional advice not only about smoking but apparently about drinking when she was pregnant.  Things escalated after the birth of the child, as I have indicated, but not much seems to have changed with the mother’s behaviour.

23. Counsel for the father tendered in evidence a police record which is not only unpleasant but would be the envy of some of the criminal classes in this country.  I do not propose to read into these reasons all of the events, but they show attendances at Court for abuse of people and also for the State to have to intervene in terms of intervention orders.  Those intervention orders have not only included the father and his immediate family, but also the mother’s family.  Sadly, the record starts back in 2004.  It is noticeable that all of the problems are therefore not just confined to the mother’s drinking. 

24. The father’s evidence is also that there were attempts by the mother at suicide.  There is no reason for me to doubt that that was somehow or other related to some of the problems of the mother.  There is still apparently an outstanding criminal proceeding in which the mother was accused of assaulting a child whom she thought had bullied the child N.  Whether she thought that there was some justification for her behaviour or not is not at all clear from the material that I have read in the interview that she had with the family consultant.  What seems to be clear is that she has little control over her emotions.

25. The father’s role in caring for the child can be seen as far more extensive than that of the mother.  In 2012 the mother went to the school where the child was attending and collected him under the existing orders.  The Department of Human Services then became involved and did a welfare check on the mother.  The department advised the father that, as the mother was not intoxicated at the time of their welfare check, there were no grounds for them to immediately remove the child, which would have been contrary to the Court orders.  It was that discussion that precipitated the commencement of the proceedings in this Court.

26. Since that time there has been a limited role of the mother, and as I said, that has placed a much greater responsibility on the shoulders of the father.  Nothing I have read in either the father’s material or that of the family consultant would suggest that the father is doing anything other than a good job.  The father has kept his residential address secret for fear of the mother, and that seems to me to be well justified.  The father described his home with the child as a close family environment.  He and his wife have a child, E, who is now 2, and his wife has a son who is known as “F”.  F is 14 years of age and, although a teenager, seems to get along very well with the child N.

27. It would seem that the family is a normal one and the wife of the father is significantly involved in the care of the child.  The home has all of the appearance of a normal home.  It has various bedrooms and areas for the child to play in. 

28. The father says, and I have no reason to doubt, that he has a good relationship with the mother’s parents, and there has been some indication in the material that there was some doubt about that, because the father had some concerns about whether or not the parents would be in a conflict position as between their daughter and their grandson.  That seems to have abated, and the relationship between them is such that the maternal grandparents now collect the child from school on a Tuesday evening.  Because of that I propose to continue to have that encapsulated in orders, so that not only will they have a role in the child’s life, but to the extent that the mother desires to have a significant part herself, she can make arrangements with the parents.  However, they will need to understand that this Court is expecting them to act as supervisors of their daughter, for reasons which will be very obvious to them already, and for the reasons that I have already articulated.  In my view there is no point in making orders for the mother to spend specific time with the child, when I have no confidence that she will fulfil any conditions imposed by this Court.

29. This is a case where conditions must be imposed, because the child is at risk of exposure to the mother’s behaviour.  That behaviour has not only included the behaviour in relation to a bullying incident to which I have referred, but the father’s evidence also shows that the Department of Human Services spoke to the police, and the mother was described as nothing much more than a nuisance.  Be that as it may, there have been incidents where she has been before the courts on matters associated with violence, and the child deserves better than being exposed to that.

30. The orders proposed by the father and the Independent Children’s Lawyer, after some discussion earlier this morning, are now much more simple, but in my view they are the sorts of orders that will make a very significant difference in settling this little boy.  Those orders have been also contemplated in some ways by the family consultant. 

31. I have read what is a very comprehensive 46 page report by an experienced family consultant.  He had not only the benefit of the extensive material, but he interviewed a number of people, including the mother.

32. Of the father, Mr B described him as having a sound understanding of both the functioning and needs of the child, and he also thought that he was committed to his son’s care.  Whilst there was a very clear involvement of the paternal grandmother, and indeed the other members of the father’s household in the care of the child, Mr B thought that the father’s involvement was as a primary parent.  Nothing that Mr B saw gave him any concern about the role of a parent in the father and more importantly despite accusations to the contrary by the mother, he saw no indication of a concerted campaign by the father to malign the mother or undermine the child’s relationship with his mother.

33. The observations of the family consultant about the father were set out in one paragraph.  I have no reason to doubt those, and I accept them.  The mother, however, was a much more difficult person to deal with from the family consultant’s perspective. Mr B described the mother’s presentation as “complex.”   He said she outlined a range of concerns about the father, none of which seem to be supported by anything that the family consultant observed, but more importantly nothing that I have read from the mother would indicate any support for such accusations.  On the basis of the fact that there is no evidence to support those accusations, I propose to simply ignore them as irrelevant. 

34. Mr B described the mother as an emotionally vulnerable person, who tended to react in a highly defensive manner when challenged about her parenting, and particularly when she felt confronted and distressed by the relationship between the child and his step-mother.  Those reactions turned to aggression, and the family consultant expressed the view that whilst it was concerning, her behaviours would have been particularly confusing and distressing for the child when he was exposed to them.

35. That very reaction by Mr B is supported by the evidence, not only of the father, but also the history of the mother with the Department of Human Services and the police.  In my view that is sufficient evidence to justify a conclusion by the Court that the relationship between the mother and the child must be supervised. 

36. Mr B went on to describe the mother as being distressed, angry and highly agitated during the process, but it did not end there.  There was a subsequent telephone conversation where similar reactions occurred.  The mother accused Mr B of bias, and not being interested in her side of the story, but then again she was the master of her own demise. 

37. Mr B recommended that the child live with the father, and that he have sole responsibility for making decisions of a primary nature.  In terms of the relationship between the child and his mother, Mr B thought that it would be sensible to have unsupervised time each Tuesday afternoon until – from school until approximately 7.30 pm, and unsupervised time every alternate Sunday from approximately 10 am until 5 or 6 pm.

38. I am not as confident as Mr B about two things.  First, that the mother would comply with such an order if I made it, but secondly, all of the evidence here, which is certainly one way, having regard to the absence of anything from the mother, makes it clear to me that this is a situation where the mother must be supervised in her time with the child.  On that basis, I reject the suggestion by the family consultant that it might be time to spend some unsupervised time between the child and his mother.  It is particularly important, also, to add that the uncooperative nature of the mother, as evidence to Mr B, is the sort of experience that other people in the community, including relatives of the father and the mother’s own parents, have experienced.  On that basis, it is likely that the mother would take very little notice of anything that anybody else said. 

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles guiding any parenting determination. It is the law in this country that the best interests of a child are met by ensuring that the child has the benefit of both parents having a meaningful involvement in his life, to the maximum extent consistent with his best interests. It will be obvious, therefore, that the only way that the child can benefit from having both parents having a meaningful involvement in his life is where the mother behaves in a positive way, such that there is some consistency in the parenting.

2. It is also important to note that the best interests of a child are seen to be met by protecting him from physical or psychological harm, that harm being where he is exposed to abuse, neglect, or family violence.  There is much concern by the police, by the father, and indeed by the Court about the role that the mother plays in this little boy’s life.  I have serious concerns about whether or not, if she had unsupervised time, the child would not be exposed to not only abuse, as was evident from the report of Mr B, but also the family violence issues.  The mother seems to have little control over her temper when she is agitated.

3. It is also the law in this country that the child is entitled to receive adequate and proper parenting to help him achieve his full potential. All of the indications, as I have pointed out, show that he is now coming from that fog of autism, and that is a very positive step for a little boy his age. He deserves not to have that disturbed. I have no doubt that the father is providing adequate and proper parenting, but because I have no material from the mother, I have no idea what role she will play. Section 60B goes on to say that the Court is to contemplate ensuring that parents fulfil their duties.

4. As I have just said, the mother is not fulfilling those duties, nor is she meeting her responsibilities. Section 60B also provides that one of the underlying principles in Part VII of the Act is that the child has a right to know and be cared for by both parents, but at all times that must be with the rider that it is in his best interests, having regard to the issue that I have just mentioned about physical and psychological harm. The child is entitled to spend time on a regular basis with, and communicate on a regular basis, with both parents. However, again, that cannot occur if there is a risk that he will be in some way harmed physically or psychologically. I have that concern here.

5. Section 60B requires the Court to consider parents jointly sharing duties and responsibilities concerning the care, welfare and development of the child. That cannot happen in this case. As I have indicated, the father wants to keep his address secret, for reasons which seem to me to be fairly sensible. There is no prospect that the parents can communicate with one another, other than by curt text messages.

6. Section 61DA provides that, when making a parenting order, the Court must apply a presumption that is in the best interests of the child for the parents to have equal shared parental responsibility.  It goes on to rebut that presumption if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.  There is no dispute in this case that a state court has made an intervention order against the mother.  The presumption in this case is rebutted. 

7. The whole tenor of the legislation in Part VII of the Act revolves around cooperation and joint decision making. The parents are a long way from that in this case. The purpose of the legislation is to ensure that children benefit from those sorts of decision making arrangements. The child has not benefited to date, and I see no reason why that would change in the future.

8. Section 60CA says that the Court should only make an order of a parenting nature if it is in the best interests of a child to do so. 

9. Section 60CC is the particular provision to which the Court is required to turn to decide what is in the best interest of the child.  In a very comprehensive outline of case document, all of the various provisions of s 60CC were covered, and I generally adopt those particular assertions.  As I have already pointed out, it is important for the child to benefit from having a meaningful relationship with both parents.  He will do that by the orders that I propose to make, which allow the mother to participate in his life, but only in the company of and under the watchful eye of the maternal grandparents.  It is important, also, to protect the child from physical or psychological harm.  Whilst there has been some question about physical violence in his case, there is little doubt about the psychological abuse if the child was present when his mother ranted the way I have read she has behaved in some of the reports. 

10. There is a very strong relationship between the father and the child.  The child benefits from the assistance that the father receives from his wife and his mother.  On that basis, I am satisfied that the father has fulfilled his responsibilities of parenthood.  Absent any evidence from the mother I have no idea what role she has or will play in the future. 

11. There are a number of other matters, including such things as child support, but that has paled into insignificance in this particular case.  With the mother’s financial position it is most unlikely that she will provide any financial support for the child, of any substance, in the future.

12. The role of not only a carer, but also financial provider, will fall on the father’s shoulders. 

13. The final matter that the Court is obliged to consider is whether or not a final order should be made that would be less likely to bring further litigation.  I earlier canvassed the prospect of giving the mother liberty to apply.  In my view, this is not a case where I should make interim orders to see how the mother goes because there is no indication that she is doing anything about treatment or improving her lifestyle.  Her consistent clashes with the law would tend to suggest that she has chosen not to do anything about sorting her problems out.  Her text message to the father yesterday has indicated that she has a particular view about him and the system.

14. My concern is not so much her views, but that the child would be exposed to that sort of behaviour.  On that basis, if she wishes to make any application in the future she can do so properly and she will need to justify to a Court why she has not been involved in the proceedings to date.  It goes without saying that she would need a lot of evidence to show that all of the problems that I have articulated earlier have all gone away.  In addition to those matters, this litigation is of longstanding.  It is time to bring it to an end and I propose to do so by making the orders that I earlier indicated as drawn by counsel for the father and counsel for the Independent Children’s Lawyer.

RECORDED   :   NOT TRANSCRIBED

1. I will make orders, which the Court will engross in terms of the minute that has been given to me.  I will discharge the Independent Children’s Lawyer.  I will dismiss all outstanding proceedings.  And I will have the reasons this day transcribed and made available to all parties.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 January 2014.

Associate: 

Date:  22 January 2014