Oxley and Oxley

[2016] FCCA 3438

FEDERAL CIRCUIT COURT OF AUSTRALIA

OXLEY & OXLEY [2016] FCCA 3438

Catchwords:
FAMILY LAW – Parenting – family report – best interests of the children – sole parental responsibility – children live with the mother – children spend time with the father as agreed in writing between the parties.

Legislation:

Family Law Act 1975, ss.60CA, 61DA(1)(4)

Applicant: MS OXLEY

Respondent: MR OXLEY

File Number: MLC 7367 of 2014

Judgment of: Judge Hartnett

Hearing date: 16 November 2016

Delivered at: Melbourne

Delivered on: 16 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Pavone

Solicitors for the Applicant: Martin Irwin & Richards

The Respondent: In Person

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility for the children X born (omitted) 2014 and Y born (omitted) 2015 (“the children”).

3. The children live the Mother.

4. The children spend time with the Father as agreed in writing between the parties and on such conditions as the Mother may request.

5. Otherwise all extant applications are dismissed and the matter removed from the list of pending cases.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) 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 are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MILDURA

MLC 7367 of 2014

MS OXLEY

Applicant

And

MR OXLEY

Respondent

REASONS FOR JUDGMENT

1. Proceedings before the Court were on an amended application filed by the mother on 10 November 2016.  The final parenting orders made by the Court in respect of the parties two very young children are the orders as sought by the mother in her amended application. The father initially sought orders as contained in his amended response dated 10 March 2016.  In that amended response, he sought that each of the parents have equal shared parental responsibility of their children; that the children live with the mother; and that  the children spend time with the father at times to be agreed but failing agreement, on alternate weekends from 5:00pm Friday afternoon until 5:00pm the following Sunday. The father also sought, additionally, that the children spend special occasion time with him, together with school holiday time.  The father sought various other orders as to notification and restraints. At trial the father sought differing orders as referred to hereafter in these reasons.

2. In support of her amended application, the mother relied upon, as her affidavit of evidence-in-chief, an affidavit sworn by her on 7 November 2016.  The affidavit was filed by the mother in accordance with an order made on 21 March 2016 by Judge McGuire that provided that each of the parties file and serve any affidavits on which they sought to rely no later than 4:00pm two clear working days prior to the final hearing.  The mother relied on no other affidavit material.  The mother, however, also relied upon two reports tendered in evidence in the proceedings, the first being the (omitted) Child Contact Service report to the Court dated 7 November 2016 (and tendered through her Counsel), and the second being the family report dated 7 October 2016 as prepared by Ms A, Regulation 7 Family Consultant, and released to the parties on 10 October 2016. The family report was introduced into evidence by the Court and with the consent of the parties.  The mother did not seek to cross-examine the author of either report.  I note the author of the (omitted) Child Contact Service report was Ms T, Manager, Community Services.

3. In support of his amended response and the orders subsequently sought by him, the father filed no affidavit of evidence-in-chief in accordance with the orders of Judge McGuire of 21 March 2016.  He had, since the making of those orders, lost the legal representation that he then had. His lawyers filed a notice of intention to withdraw as lawyer on 20 October 2016.  The father, nevertheless, sought to rely upon his earlier affidavit material being the following as sworn by him:-

   a)on 10 March 2016;

   b)on 7 December 2015;

   c)on 26 February 2015; and

   d)on 24 November 2014.

4. The father, appearing as a litigant in person, was afforded an opportunity to give some additional oral evidence in the witness box this day. He did so but it was not of great assistance to the Court in determining that matter which is the responsibility of the Court, namely, the best interests of the subject children. The Court notes the provision of section 60CA of the Family Law Act 1975 (Cth) (‘the Act’), which is as follows:-

   “60CA.  In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”

5. The father was also given an opportunity to cross-examine the mother in the proceedings, and he took that opportunity.  He also initially indicated that he wished to cross-examine the report writer of the family report but subsequently indicated that he no longer wished to cross-examine Ms A.  He had in fact made no arrangements prior to the trial commencing, to obtain the attendance of Ms A and/or Ms T for cross-examination at trial.

6. Most of the father’s cross-examination of the mother went to matters of genuine personal concern to him, some of which related to alleged harassment of him by the mother; some of which related to his concerns as to his immigration status; and some of which related to whether or not the mother lied as to the heritage and surname of her father on the marriage certificate that was issued to the parties in (country omitted).  None of these matters assisted the Court in any relevant way in its consideration of what would be in the best interests of the parties’ two children in the current circumstances in which the parties and their children find themselves. 

7. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

1. The father was born on (omitted) 1980. He is aged 36 years. The mother was born on (omitted) 1974. She is 42 years. The parties met in (country omitted) in September 2013, having corresponded online for a period of some 12 months prior to that time.  They married in (country omitted) on (omitted) 2013.  Whilst in (country omitted) the mother was unwell and tested for malaria.  She discovered she was in fact pregnant and returned to Australia for medical treatment.  The parties’ elder child, X, was born on (omitted) 2014 and at that time was 14 weeks premature. For a period of approximately three and a half months, X was in hospital in Melbourne before being transferred to the (omitted) Hospital where he remained an inpatient for a further two weeks.  Throughout most of this period of time, the father remained living in (country omitted) with the mother attempting to obtain a spousal visa for his entry into Australia.  The father was granted a visa to travel to Australia and enter Australia on compassionate grounds.  He arrived in Melbourne in (omitted) 2014 and saw his son for the first time on 17 June 2014.

2. The mother said in her affidavit evidence, and was not challenged in cross-examination as to this evidence, that X was in hospital for a two-week period after the Respondent father arrived in Australia.  She claimed the father was very disruptive in the hospital when visiting the child and abusive to the staff and demanding.  Following X’s discharge from the hospital, the parties lived in (omitted).  X was hospitalised several times for serious health related issues. He also had difficulty establishing any sleep pattern and the mother was required to attend a sleep clinic with X to assist in resolution of this further difficulty.   

3. The parties’ cohabitation did not survive beyond three months after the father arrived in Australia.  The parties had separations in the months of July and August 2014, and separated on a final basis on 8 September 2014.  At that time it became apparent that the respondent father was in a relationship with a then friend of the mother, Ms C, with whom he remains in a relationship. 

4. Following separation, the mother discovered she was again pregnant to the father. Subsequent DNA testing, required by the father, provided the necessary evidence that the father is the biological father of both X and the parties second child, Y. The second pregnancy was a difficult pregnancy with a number of medical complications.  Ultimately, Y was born in (omitted) on (omitted) 2015. She was, and is, a child with good health. She is now aged one year and approximately eight months. X is aged two years and approximately eight months.

5. At the time of the final separation in September 2014, the father attempted to take X from the mother forcibly, and when prevented from doing so, he pushed past the mother as he left the family home, pushing the mother into a brick wall in a garden.  The mother sustained injuries and was hospitalised.  The injuries included a scar on her face.  Victoria Police were called during this incident and assault charges were filed against the Respondent father. The mother relocated from (omitted) to (omitted) due to her concerns, as claimed by her, for her safety. She relocated without the father’s knowledge or consent.  At the time, the father had also made threats to Victoria Police, claiming that he had parental rights over X and would remove him to (country omitted) to be raised by his family. 

6. The mother remains living in (omitted), where she is now well settled.  She resides with her daughter from a previous relationship, in addition to the two children, the subject of this application, X and Y.  Her daughter A was born on (omitted) 2006. She is nearly ten years of age. The mother and three children reside in rental accommodation which has four bedrooms and which is appropriate accommodation for the physical needs of all the children. Additionally, the mother has three independent adult children, the younger two of whom also live in (omitted), whilst her eldest daughter, lives with her partner and children in (omitted).  The mother’s three adult children have no contact with their father, nor does the mother.  The mother has a good relationship with the child A’s father and she encourages A’s relationship with her father.

7. The father has continued to reside in (omitted).  He commenced to live, immediately after separation, with Ms C. They now have a child, B, who is one year of age.  The father told Ms A (the family consultant) that Ms C experienced a traumatic childhood and consequently has lived a difficult life.  Ms C, like the mother in these proceedings, was raised in a children’s home during her infant years.  She was allegedly raped by her foster father who forced her to have an abortion when she was 14 years old.  That is a matter currently before a Court with a hearing listed in November 2017.  The father also stated to the family consultant that Ms C was recovering from cancer and that she suffers from depression and acute stress.  Consequently, he asserted, she was unable to care for her own children. In those circumstances he had taken over the primary care of her children and their 11-month old son B.  The children whom the father cares for are:- C aged 15 years; D aged eight years; and his own son C.  The child E, a child of Ms C’s, who is aged 10 years, the father claims does not live in their household and is now living with his father. The father himself has another child in (country omitted), F, who is 12 years of age and who lives with her mother. 

8. The father’s immigration status in Australia is uncertain, save that he claims to be currently on a bridging visa and is attempting to obtain a spousal visa.

The Children

1. The two children, X and Y, have seen very little of their father in their lifetime.  Since early September 2014, X has seen his father on two occasions and those occasions were supervised visits at the (omitted) Child Contact Service.  Likewise, Y has seen her father on two occasions since her birth on (omitted) 2015, and those two occasions have been supervised visits at the (omitted) Child Contact Service. 

2. The child X’s health has been significantly compromised.  He has developmental delay; suffers from severe separation anxiety; has asthma; enlarged tonsils; and has had breathing difficulties throughout his life.  He also contracted Cytomegalovirus (CMV) as a baby and has had ongoing health issues associated with this.  He suffers from sleep apnoea.  He also attends upon a psychologist because of his separation anxiety; a speech therapist because of his developmental delay; a paediatrician for his general health; and a cardiologist.  He sees an Ear Nose and Throat specialist about his tonsils and hearing difficulties.  Y and A have both had their adenoids and tonsils removed and have been fitted with grommets in the last week.  X also needs his tonsils removed but, because it is high risk for him, he is scheduled to have an operation in Melbourne or Adelaide.  Despite X’s concerning health issues, he is a happy, outgoing child, as is his sister Y.  The mother’s evidence is that they are both happy and well-adjusted.  Y is meeting her developmental milestones.  X struggles because of his health issues, but his health is improving and the mother works with health professionals to advance his physical and emotional development.

3. Ms A did not observe the children with their parents for the purposes of her assessment as set out in paragraph 53 of her family report.  That decision was made as at the time of writing her report the children had only experienced one two-hour visit with their father, which was in May 2016.  They had not, since that time and as of October 2016, seen their father.  The time spent with their father in early 2016 was the children’s introduction to him as facilitated by the (omitted) Family Care Children's Contact Service.  Thereafter, the children were able to see their father in that supervised setting on 14 May 2016 and not otherwise.  The scheduled 11 June 2016 visit was cancelled by the father, who stated that he did not wish to visit due to feeling harassed by the mother.  The 23 July 2016 visit did not proceed initially due to the child X’s surgery dates, but then, because the parties could not reach an agreement as to an alternative arrangement when it became apparent that date would not be able to be attended by both of them.  In August 2016, the father cancelled his proposed visit as a result of a tragedy in Ms C’s family.  In the following month, the visit was cancelled due to the children having a contagious illness. On 15 October 2016, the father travelled from (omitted) to (omitted) to see the children, however the visit did not proceed due to the children’s assessed level of distress in being separated from their mother.  That outcome was most unfortunate as the father had spent considerable time travelling to see the children and the then Court Orders provided for supervised time spend with as the means by which the father saw his children and they him.  A further scheduled visit for early November 2016 was not attended by the father.  Perhaps that is not surprising given his earlier and recent failure to see the children.

4. The mother stated to Ms A that she would be amendable to the children spending unsupervised and increased time with their father in the future.  However, before that position is reached, she suggested the father would need to increase his frequency of visits in the supervised setting in order for the children to be comfortable with him prior to leaving the children’s contact service. 

The Parents

1. The father is not in receipt of income.  His evidence is that he has been unable to be gainfully employed. The evidence was not clear as to whether this was by virtue of his immigration status or by virtue of his needing to be the primary carer to Ms C’s children and the child of he and Ms C. He thus pays no child support to the mother for the support of Y and X.  He is in fact supported himself by the Centrelink benefits which are paid to Ms C.  He resides in the home of Ms C and is entirely dependent upon her for his financial support. 

2. The mother is likewise dependent on Centrelink benefits. She is currently unable to be gainfully employed due to the high medical needs of the child X and her need to care solely for the parties very young children. 

3. The mother’s evidence is that she has a significant mental health history dating back to 2002.  She had a difficult childhood.  She spent most of it in a children’s home until she was adopted by a family in (omitted). Her biological father is of Aboriginal descent. She had behavioural issues and was surrendered by her adoptive family.  She used illicit substances as a teenager and her two eldest children were removed from her care by the Department of Human Services (as it was then) as a result of her drug-taking and mental health issues.  She has been treated both in the inpatient and community environments, predominantly in (omitted) and more recently managed from (omitted).  She has been diagnosed at various times as being psychotic; having a borderline personality disorder; and possibly suffering from schizophrenia.  She was imprisoned as a result of her drug use in her early twenties.  Following her release from prison, the mother dealt with her issue of drug addiction and her mental health improved.  She worked with the Department of Human Services and was ultimately successful in having her two children, G and H, returned to her care.  She had two further children, Mr I, who is now aged 19 years of age and A. She resumed her relationship with her adopted family, and sought out and continues to have contact with, her biological mother and father.   

4. Ms A refers (in paragraph 19 of her family report) to information received by her from the (omitted) Hospital indicating that the mother was admitted to the (omitted) Mental Health Service suffering a situational crisis following her relationship separation from the father.  The mother reported emerging suicidal thoughts stemming from an accumulation of significant stressors; past history of foster care placement; and sexual abuse.  She was assessed as exhibiting some borderline traits which required further assessment.  The mother has currently no mental health functioning issues that would preclude her from caring for her children or that would indicate any risks to the children in their mother’s care. 

5. Intervention orders have been sought and obtained by both parties in these proceedings.  The father claimed the mother breached these orders by stalking him in (omitted) and intimidating and harassing he and his partner during one of his visits to (omitted).  The mother denied those claims.  The father reported his concerns to the police and the mother has been interviewed by the police on several occasions.  She has not been charged with a breach of an intervention order.  

Consideration

1. Although the father’s application is as set out in his amended response, he conveyed to Ms A that he sought (as set out in paragraph 57 of her report) that the children live with him in an equal shared care parenting arrangement. He sought equal shared parental responsibility for the children and that the children live with him for a two-week block at the end of each month residing in his home in (omitted) and for the other two weeks in the month that they return to (omitted) and reside with their mother.  He sought no communication with the mother due to harassing behaviours exhibited toward he and his new partner as alleged by him.  At trial, the father again changed his proposal.  He sought that the parties have equal shared parental responsibility; that the children live with their mother, but that they live with him for one week in each month, being the last week of each month. He indicated that he would travel to (omitted) to collect the children.  He proposed to return to (omitted) with them and have them reside in the household of he and Ms C and with the other three children currently in that household.  This was, in the Court’s view, a proposal that could not advance the children’s best interests given the very young age of X and Y and given that their primary carer and attachment figure is their mother.

1. The mother’s response to the father’s proposal that the children reside with their father in (omitted) for a one or two week period is that such orders should not be made.  The child Y does not know him at all and refused to see him on the last supervised contact occasion.  The child X likewise refused to see his father at that time. 

2. The father, in his evidence, showed a considerable lack of insight in his response to the children’s refusal to see him and the current difficulties they have in recognising him.  He also showed considerable lack of insight into the child X’s health needs in terms of his ability to deal with those needs in a situation where he is also caring for his partner, Ms C, and her mental health issues, and for the three children in their household.  As Ms A said in her report (at paragraph 59), the father’s proposal is not developmentally appropriate for the children.  The mother is their primary carer who provides them with their sole emotional support and security, while their father is essentially a stranger to them at this stage. 

3. Ms A noted that her assessment supported the children living primarily with their mother and spending time with their father at a supervised contact service until such time as his relationship with the children had been established and the children were confident of spending time with him for short periods of time during the day in (omitted).  She noted that, given X’s significant medical issues, it appeared inappropriate to consider any arrangements which would involve overnight time spent between X and his father.  Ms A also recommended to the Court that given X’s significant medical issues, the mother be given sole parental responsibility for the children to enable her to make timely decisions for any operations and processes which X may require at short notice. 

4. This is a matter in which the presumption as to equal shared parental responsibility is rebutted. That presumption is as set out in section 61DA of the Act, wherein subparagraph (1) provides that:-

   “When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

5. In the circumstances of this case and on the evidence before the Court, the presumption is rebutted on the grounds as set out in section 61DA (4) of the Act. The lack of time spent with between the father and children is one part of the evidence supporting the rebuttal. The high medical needs of the child X is another part of that evidence. The poor relationship between the parents and their inability to communicate is another. The children’s reluctance to spend time with their father, and indeed refusal on the last supervised visit proposed is another. The father’s lack of the provision of any emotional, financial, and physical support to the children is another part of the evidence which goes to the making of an order for the mother to have sole parental responsibility for the children.

6. The father’s energies are engaged substantially by his care of Ms C and the children in that household. Those obligations and the considerable geographical distance between the parties’ respective residences have precluded the father from making sustained and determined efforts to see his children and do that which is necessary to develop a relationship with them. 

7. The Court shall not order further resource intensive supervised time spent with between the children and the father at the present time. There is no utility in such orders if the father does not in fact see the children. Further there is no utility in them in the circumstances of this case when numerous appointments were made available to the parties and for various reasons, including the father’s failure to attend, those visits did not proceed. Supervised time spent with is not sought by, nor acceptable to, the father. The parties are going to need to work together, in the children’s best interests, to make arrangements for the father to see the children in a safe setting which is one that is acceptable to each of the parents.  The father needs to commit to seeing his children and on a regular basis. The mother needs to encourage that relationship including a preparedness by her to undertake some travel. She has not always supported the relationship. The father’s immigration status needs resolution. Once the father’s living arrangements have stabilised and the mother can communicate in a child focussed way there may be an opportunity for time spent with to occur. The father needs to put a realistic proposal to the mother in the first instance and then if necessary, a Court for a time spent with his children regime. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  19 January 2017