Orontes and Somoza (No. 2)

[2018] FamCA 868

FAMILY COURT OF AUSTRALIA

ORONTES & SOMOZA (NO. 2) [2018] FamCA 868

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Where child has not spent time with the father since mid 2017 - History of lengthy litigation – Orders that child live with the mother – Orders that parents have shared equal parental responsibility for the child – Orders that the father shall be at liberty to send the child letters cards and emails – Specific issues orders – Injunctive orders.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Orontes

RESPONDENT: Ms Somoza

INDEPENDENT CHILDREN’S LAWYER: Ms Neilson

FILE NUMBER: PAC 2260 of 2008

DATE DELIVERED: 14 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 14 September

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Neilson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Legal Aid Commission

Orders

1. All previous parenting orders in relation to the child X born … 2006 (‘the child’) be discharged.

2. The child live with Ms Somoza (‘the mother’).

3. The mother and Mr Orontes (‘the father’) have equal shared parental responsibility for the child.

4. The father shall not attend at the school at which the child attends without the consent of the mother or the Independent Children’s Lawyer or pursuant to an order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).

5. The mother and father shall keep each other informed of their respective residential address and telephone numbers to enable the parties to keep in contact with each other.

6. The mother shall inform the child of the father’s email address, Facebook page details and telephone numbers within seven (7) days of receiving them.

7. The father shall be at liberty to send the child letters, cards, emails and presents.

8. For a period of twelve (12) months from the date of these orders the father shall be at liberty to make an appointment, through Child Dispute Services of the Family Court of Australia, to see the child for up to one (1) hour on six (6) occasions at times suitable to the child and to Child Dispute Services, should the child be willing to attend and spend time with the father in that safe circumstance.

9. No other orders be made for time or communication between the father and the child.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

11. BY CONSENT the appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months from the date of these orders.

12. All outstanding extant applications be dismissed.

IT IS REQUESTED

1. The Independent Children’s Lawyer contact the child and inform the child of these orders, including the arrangements as set out in order 8 above, to see the father for up to six occasions with a family consultant to assist with any arrangements that can be put into place.

IT IS DIRECTED

1. The Independent Children’s Lawyer forward a copy of these orders to the mother at her last known address.

2. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orontes & Somoza (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2260 of 2008

Mr Orontes

Applicant

And

Ms Somoza

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. X (‘the child’) is aged almost 12 and a half.  He is the son of Mr Orontes (‘the father’) and of Ms Somoza (‘the mother’).  Since about mid-2017, the child has not seen his father.  The father has come to Court on numerous occasions over the last 12 months seeking orders to restore an arrangement that the parties had where the child spent equal time with the father and equal time with the mother, or roughly equal time, and this Court has endeavoured to restore the relationship between the child and the father.

2. An Independent Children's Lawyer has been appointed and she quite rightly observes that the options are to bring the proceedings to an end now to remove the pressure from the child, or to list it for a hearing and have the child examined yet again by a family consultant or a psychiatrist to see whether something can change.

3. The father says a number of things.  First, that he had a fine relationship with this child and that without his involvement the child will not achieve his potential, both socially, psychologically or educationally, and he points in his recent affidavit to the child's term 1 results in his first year at high school.  The father says this arises as a consequence of the child travelling to school.  The father says that it is his view that the relationship between the child and him has likely been undermined by the mother and her family.  His solutions fall into one narrow area; that is, that he says if orders are made that the child see him for a short period of time with a family consultant, just one on one but with a family consultant present, the child will understand how safe the child is with him and the relationship will be restored.

4. It is worthwhile for this Court to reflect on the history of this matter in determining what it should do.  The father was born in 1981 and is aged 37.  The mother was born in 1987 and is aged 31.  It seems not in issue that the parties commenced living together in about 2004, and that in March 2006, the child was born.  The parties separated sometime later that year or early the following year.  I have had conduct of this matter since late 2017, and this morning I arrived early to re-read the file.  I have had regard to the various family reports, including the most recent report of May 2018, but also the reports released of 22 October 2012, 7 November 2013 and 14 October 2014.  Unfortunately for this child, we have a longitudinal exposition of the conflict which he has endured since shortly after his second birthday.

5. This matter commenced in the then Federal Magistrates Court, as it then was, in Parramatta on 13 May 2008.  It was before that Court on at least these additional occasions: 20 June 2008, 19 August 2008, 21 November 2008, 18 March 2009, 22 April 2009 and 29 October 2009.  A trial was put listed at that time and the next mention was 11 December 2012.  It came back to that Court on 21 March 2013, an ICL was appointed, 8 July 2013, 19 November 2013, 20 December 2013, 13 January 2014, 14 September 2014, 20 October 2014, 21 January 2015, when final orders were made.

6. What the father tells me, and I accept for the purpose of this determination, is that from 2012 until 2017 the child lived with him for approximately half of the time.  The matter came back before the Court in February 2016, in relation to schooling, 15 April 2016, 14 June 2017, 4 August 2017, 30 August 2017, 24 October 2017, 15 November 2017, 8 December 2017, 18 December 2017, 22 January 2018, 29 March 2018, 23 April 2018, and, of course, 24 May 2018 and today.  All of that time this child has no doubt been aware that his parents were arguing over him.

7. The child lives primarily with his mother, with either her partner or her husband Mr H.  Since that time, the mother has had three children, E, aged eight, D, aged 10, and F, aged five.

8. The father asserts to me that a bit more time will resolve this issue.  This Court has endeavoured to have the mother engage, with a spectacular lack of success.  The only other option available to this Court to bring her here is to send a police officer out to arrest her and bring her before the Court.  I have no doubt that if I do that it will be like pouring petrol on the fire and will not achieve that which the father seeks.

9. The father came before the Senior Registrar last year and the mother was warned on 4 August by orders that if she did not come here, the Court may make orders in relation to the changing of the parenting arrangements for the child.  On 30 August, Senior Registrar Campbell made orders in the absence of the mother that the child be enrolled in C School.  The matter came back before the Court on 24 October 2017.  There was again no appearance by the mother, and the matter was listed for possible undefended order.  A contravention application was filed, and on 15 November 2017, the Senior Registrar, not me, made orders giving the father sole parental responsibility for the child and orders that the child live with the father on certain weekends.

10. The father then came to the Court on 18 December and sought a recovery order.  I read the whole of the file at that stage and the father's case was essentially this: that this child had a terrific relationship with him and that the mother was doing all within her powers, including failing to engage with the Court proceedings, to prevent the child from spending time with the father, whom the child regarded as a close and loving parent.  An order was made for recovery of the child, and in fairness to the child, the order was placed on hold until after 1 January 2018 in the hope that the mother would engage in the process.  She did not.  The child was recovered to the care of the father by the police.  He was removed from her home and presented to the father.  It must have been a terrible experience or the child.  He spent a full day with the father, and that night, he left the father's care.  The mother's contention is that he walked the ten kilometres home.  The father's contention is that he contacted the mother by mobile telephone, of which the father was not aware, and that somebody came and picked him up and encouraged him to go.  But in any event, the child voted with his feet.

11. The matter came before me on 22 January 2018.  It is not often that the Courts are met by such abject failure in restoring contact.  As such, the matter was referred to a family relationships centre in the hope that after the traumatic events of that Christmas/New Year period the approach of the parents in relation to the conflict would end.  Again, there was no appearance by the mother.  The matter came back before a registrar on 29 March and was listed for a possible undefended hearing before me on 23 April 2018.

12. Given the father's concerns on 23 April 2018, I adjourned the proceedings for another month, requested Child Protection to become involved and ordered that an Independent Children's Lawyer be appointed, such was my concern for the child.  A Child Responsive Memorandum was ordered and I have read that report. 

13. On 30 April 2018, the reporter met with the father and provided comment in relation to him.  The mother missed that appointment, unsurprisingly, but she did contact the family consultant and had a meeting on 17 May 2018, and the family consultant saw the child.  I have read that report.  To say that it is troubling is an understatement.  The child gives a history of living with his mother and spending time with his father from after his second birthday, and having almost equal time arrangements until August 2017, when he says he began to refuse to spend time with the father.

14. The child, it is said:-[1]

    Presented as an articulate, polite, though somewhat nervous young person.  [The child] appeared to be emotionally burdened when discussing the parenting arrangement.  [The child] said that he was very young, "my Mum left my Dad," and since he can remember, he has lived half-half.  [The child] said in 2017 he told his mother that he no longer wanted to spend time at his father's house. 

    [1] Child Responsive Program Memorandum dated 18 May 2018, pages 4 and 5.

15. He made a number of assertions against the father in relation to aggression, denigration and other language, which the father entirely repudiates.  It caused, according to the child, for him to have suicidal thoughts, which is troubling, and the child says that since August of last year, he has not had any suicidal thoughts and is generally happy at the moment.  He makes assertions that his father is engaged in the drug trade, which the father entirely repudiates.  He said his father did not listen to him and that strangers often resided in the house.  He complained that he and his father shared the same bed.  And I think in part, that was conceded by the father, at least until recent times.

16. The child told the family consultant to give a message to the judge, that is: "I don't want to live with Dad” anymore “or have anything to do with him”.[2]  The family consultant observed, and I join with the consultant in that respect, that this matter has been before the Court for 10 years, virtually the whole of this child's life where he has a memory to which he can reach.  The family consultant observes that if the father is correct, the child is being deprived of a developmentally important relationship with his father, and that the mother has endeavoured at least in recent times to deprive the child of a relationship with his father.

    [2] Ibid, page 7.

17. It is the view of the family consultant, which differs with that of the father, that the parenting dispute appears to be negatively affecting the child's capacity to engage in education, given that the child is quote emotionally burdened, and it is important that his school environment is seen as a safe and neutral place.  The father attended at his school and gave some statements from the bar table, about this which I have treated as evidence.  He stated that he went there, that the child began to cry, the police were called, that the father assured the child that he would not take him from the school, and spent some time with him, and the child relaxed.  He said he went back to the school the following day but the child did not attend that school for the final two or three weeks of the fourth term of 2017.

18. The family consultant noted:-[3]

    It is positive to note that [the child] appears to be doing well socially and from developmental perspective.

    I am not sure that that entirely stands up to analysis, given the report of the child of the first term of his current school, where he has missed out on significant days of school.  There are some elements of truancy and there are some elements of the child being absent from school for a significant period, somewhere between four and five weeks in the first 10 weeks of his high school.  That is in many ways reflective of perhaps not the most glowing school report that the child could have hoped to achieve.

    [3] Ibid, page 8.

19. What then should I do? When these oral reasons are published, I will include the relevant provisions of section 60B, section 60CC, and all of the factors relating to parenting arrangements. I do not intend to spend 20 minutes now setting out the law, but for the benefit of the father, I will say that my task is to consider the best interests of this child, which can sometimes do injustice to one parent or another. The best interests of this child are set out in the objects and principles contained in section 60B, and to take me to section 60CC. Sections 60 CC(2) and (3) talk about the Court being aware of the need for a meaningful relationship between the child and each of the child's parents. The other part of section 60CC, which says to protect the child from abuse, neglect or family violence, has greater significance than the other provision.

The law

1. The provisions of the Act that deals with children is set out in Part VII.  In particular s 60B articulates the objects and the principles underlying them as follows:-

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that 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 that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act.  It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence.  The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

1. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

2. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

(3)Additional considerations are:

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)        the nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents 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;

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)         the capacity of:

(i)       each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)         if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

(i)       the nature of the order;

(ii)      the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v)       any other relevant matter;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)        any other fact or circumstance that the court thinks is relevant.

1. I will endeavour to apply the facts to the law.

2. The child in this case has been for most of his life at risk of neglect or harm arising from the ongoing conflict between his parents. The history of these proceedings is ample evidence of that, as are the matters set out in the various family reports and where we are at the present time. Section 60CC(3)(a) talks about the views of a child. In this case, the child has expressed very strong views, not just verbally but in actions. He had the opportunity to spend some time with his father and it did not work. This Court endeavoured to put in place in May of this year an arrangement where the father could see the child in a supervised way. That process did not occur. It is the father's view that the mother has taken whatever steps she possibly can to prevent that from happening. The Independent Children's Lawyer told me, and I accept, that the child's view has not changed. This is a matter which is dealt with under Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings. The section provides:-

   Principles for conducting child-related proceedings

   Application of the principles

   69ZN(1)The court must give effect to the principles in this section:

   (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and

   (b)in making other decisions about the conduct of child-related proceedings.

   Failure to do so does not invalidate the proceedings or any order made in them.

   69ZN(2)Regard is to be had to the principles in interpreting this Division.

   Principle 1

   69ZN(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   Principle 2

   69ZN(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

   69ZN(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

(b)the parties to the proceedings against family violence.

Principle 4

69ZN(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

Principle 5

69ZN(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

1. Section ZN(3), which is principle 1, says, and I repeat, the first principle is the Court is to consider the need of the child concerned and the impact that the conduct of proceedings may have on a child in determining the conduct of the proceedings.  It goes on to say in s ZN(5) that the Court proceedings must be conducted in a way that will safeguard the child concerned from being subjected to or exposed to abuse, neglect or family violence.  I am satisfied that the proceedings, for whatever reason, have exposed this child to abuse or neglect, because they have been going on for such a consistent way and are reflective of the poor communication and the poor parenting offered by both of these parents.

2. It is significant to note that the father described to the family consultant the co-parenting relationship as, I quote, "non-existent", and the mother described it as a mess.  My task is to look at this from the child's point of view, and in doing this, I intend to bring these proceedings to an end.  I see no point in exercising any further jurisdiction of the Court apart from making orders of a holding nature, particularly given the complaints of the child and particularly given the evidence that the child may be at risk of self-harm.  The decision of the State Coroner of Tasmania in the decision of Youth Suicide [2015] TASCD 298, 299, 300, 301, 302 and 300 discusses the impact of proceedings of this type on children generally.

3. This child, sadly, needs to be protected from the conflict that has endured.  I do not look to the father as the sole cause of that conflict.  He is in some ways part of the cause.  As to the allocation of causation, it does no good for this Court to work out which way or other it is.  The child is settled in a family with three siblings, and I intend to leave that, having regard to the relevant factors in place as they currently stand.  I do intend to put in place some arrangements to enable the child as he gets a little older to spend time with his father and for his father to maintain contact with that child, but I do not intend to expose this child to another year or two or three of litigation.  He is at least entitled to some part of his life where litigation is not ongoing and constant.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 14 September 2018.

Associate:     

Date:              24 October 2018