Paull and Paull

[2012] FamCA 934

FAMILY COURT OF AUSTRALIA

PAULL & PAULL [2012] FamCA 934

FAMILY LAW – CHILDREN – Undefended hearing – With whom a child lives – With whom a child spends time – With whom a child communicates – Orders that children live with mother – Orders that children spend time with and communicate with father as agreed between the parties

Family Law Act 1975 (Cth)

MRR v GR [2010] HCA 4

APPLICANT: Mr Paull

RESPONDENT: Ms Paull

INDEPENDENT CHILDREN’S LAWYER: Wallace Wilkinson & Webster

FILE NUMBER: HBC 549 of 2009

DATE DELIVERED: 22 October 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 22 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Jones

SOLICITOR FOR THE RESPONDENT:

Fitzgerald & Browne

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Fox

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Wallace Wilkinson &

Webster

Orders

1. All previous parenting orders in relation to the children B born … January 2002 and C born … March 2005 (“the children”) are discharged.

2. The mother, Ms Paull, have sole parental responsibility for the children provided she keeps the father informed of any significant event effecting the health or welfare of the children or any significant event involving a change of primary residence of the children.

3. The children live with the mother.

4. The children spend time and communicate with the father as agreed between the parties or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).

5. 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.

6. All outstanding applications be dismissed.

7. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

   IT IS REQUESTED

8. The Independent Children’s Lawyer forward to the Secretary, Department of Health and Human Services Tasmania copies of the following documents:-

   (a)these orders;

   (b)the reasons upon which these orders are based;

   (c)affidavit of Ms D filed 3 November 2009;

   (d)affidavit of Dr E filed 10 January 2012;

   (e)affidavit of Ms F filed 15 June 2012; and

   (f)affidavit of mother filed 29 June 2012.

   IT IS DIRECTED

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

   IT IS CERTIFIED

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paull & Paull 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 HOBART

FILE NUMBER: HBC 549 of 2009

Mr Paull

Applicant

And

Ms Paull

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Ms Paull (‘the mother’) and Mr Paull (‘the father’) relating to the parenting arrangements of their children, B, aged 10, and C, aged seven. 

2. The proceedings had related to the time that the children spend with the father and parental responsibility.  The proceedings were commenced in June 2009 in the Federal Magistrates Court, with the father seeking an order that there be equal shared parental responsibility and that the children live with each party on a week about basis.  The proceedings ran through the processes of the Federal Magistrates Court and were subsequently transferred to the Family Court.  An independent children’s lawyer was appointed.  The mother filed a response in August 2009 opposing the father’s application but was not entirely specific in terms of the orders that she sought. 

3. The underlying issues in this case relate to two areas of conflict.  The mother asserted that she was the victim of violence and consequently, the children were the victims of violence over a number of years.  The father denied much of that violence.  The mother also asserted that the children may have been at risk of sexual abuse in the care of the father into the future.  This matter was listed for a hearing commencing today.  The father was represented and in September of this year filed a notice of discontinuance of his application.  He was called today and did not appear.  I am satisfied, firstly, that he knew the proceedings were listed for hearing today, and that he continues in his view that he should no longer participate in the proceedings, nor does he seek orders in relation to the children. 

4. The mother filed an amended response on 5 October 2012 in which she sought four orders.  Firstly, that she have sole parental responsibility for the children,  Secondly, that the children live with her.  Thirdly, that they spend time with the father as agreed between the parties.  And finally, that the father communicate with the children as agreed between the parties.  I note and accept the mother’s assurance that in terms of the children’s relationship with their paternal grandparents, that if sensible child-focused and child-safe arrangements are put in place, she will facilitate the children spending time and/or communicating with that family in those safe and secure environments.  I note for the transcript that as I was delivering this part of the reasons, the mother was nodding her head in agreement with my understanding of her position and I am sure that she agrees with me that she understands the position.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The law in relation to parenting is well known and when determining parenting orders the approach is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Family Law Act’).  The objects of Part VII of the Act and the principles underlying them are set out in ss 60B(1) and (2) which provide:-

   (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. In many ways that section provides the balance that the Court undertakes when making parenting orders that is the entitlement of the child to have both parents being involved in the child’s life in a meaningful way provided it is safe to do so and causes the child no harm. 

3. Subject to the presumption of equal shared parenting under s 61DA of the Act, and any parenting plans, and there are none in this case, the Court exercising jurisdiction under the Family Law Act may make such parenting order as it considers appropriate.  In doing so, the child’s best interests are the paramount consideration in deciding what orders the Court should make and in determining those interests the Court must consider the relevant factors set out in s 60CC of the Act.   

4. If the Court makes an order for equal shared parental responsibility it must then consider the child spending equal time with each parent, and if such order is not made, then the Court must separately consider the child spending significant and substantial time with each parent.  In addition, the Court must consider whether such arrangement would be in the child’s best interests and consider whether any such arrangement is reasonably practicable.  And to that end, I note the comments of the High Court in MRR v GR [2010] HCA 4.

5. The role of the Court is to put in place parenting arrangements which meet the best interests of the children, having regard to the benefit of the children having a meaningful relationship with each of their parents, provided at all times it is safe to do so.  And that is what the crux of this case was about. 

BACKGROUND

1. The father is aged 43.  The mother is aged 36.  They commenced a relationship in December 1998, they married in October 2000 and separated in February 2008.  The two children have at all times been in the primary care of the mother, who has been their primary attachment figure.  These proceedings were commenced by an application made by the father in June 2009 and various orders were made by a federal magistrate through 2009 and 2010.  On 2 July 2012, the proceedings were transferred from the Federal Magistrates Court to the Family Court. 

2. They were placed in a duty list and were subsequently listed for final hearing before me.  As I have said earlier, the father filed a notice of discontinuance on 11 September 2012 and I note that document as document 24 in the Court file.  The mother filed her amended application on 5 October 2012 and filed an affidavit of personal service of that document on the father, to which I have had regard.  As I have said earlier, the father knew of the proceedings and did not participate.  The Independent Children’s Lawyer today appears through counsel and informed me that she supports the orders sought by the mother. 

3. The mother relies upon a number of affidavits and I will go through them in order.  The first is her affidavit filed 29 June 2012.  The mother sets out a chilling history of violence and abuse in paragraphs 6 through to 8 of her affidavit.  That evidence is, of course, both untested but uncontroversial in the circumstances in that it was open for the father to test it and he chose not to do so.  The Independent Children’s Lawyer does not seek to test that evidence.  The evidence is of an abusive, controlling father who exercises his physical and emotional power in abusive and violent ways, not only to the mother but at times to the children. 

4. After separation, the mother observed some behaviours in relation to the two children who have caused her concern.  She took careful, appropriate and child-focused steps to protect the children.  There was some explicit and implicit criticism of her in some regards, however, it is clear that her focus has been primarily on the care of the children and whilst sometimes objectively and with hindsight things could be done better, not all of us have the ability to do that at the time and I offer no criticism of her in that regard.  She was concerned about the children’s interaction with their father but at times, as shown in the affidavit of Ms F, was insightful of her own concerns, as is also the case in the affidavit of Dr E, who prepared a report and assisted the parties in terms of these proceedings.  I generally accept her evidence. 

5. There is then the affidavit[1] of Dr E himself.  He is a psychologist and he was briefed to provide a report.  He undertook an assessment process over a lengthy period of time, which in many ways explains the delay in this matter in filing and coming to a hearing as each of the parties, and in particular the mother, struggled to work out how there could be a sensible and child-focused relationship in a way that did not expose the children to the risks which he genuinely believed they could be exposed to.  Dr E interviewed the mother, he interviewed the father and he interviewed the children.  He observed that the mother presented as a “concerned mother who has attempted to protect her children from unnecessary emotional distress and appeared to have no significant psychological or mental health issues.”  He had some broader concerns about the dynamics of the relationship breakdown and its impact upon the mother. 

   [1] Filed the 10 January 2012.

6. He observed that the father acknowledged that he had a significant alcohol problem during the relationship and that he was aggressive and depressed during that time and it appears that he has endeavoured to solve this problem by attending Alcoholics Anonymous.  Dr E concluded that the father’s past behaviour would suggest a rather reactive and aggressive personality and a period of depression which has clearly had a negative impact on his parenting ability.  He made comments about the children’s interaction with the father, which will no doubt and will hopefully assist the mother in terms of any further interaction in the future, particularly in terms of B, who has shown significant anxiety at various times.

7. Dr E was concerned about the mother’s ability to promote the relationship between the children and the father and the mother’s desire for things to occur outside the spotlight of the Court, which has understandably caused her some concern.  Dr E said he was encouraged by that view.  He has no issues about the mother’s capacity to provide for the needs of the children.  He also observed the children and the mother have been adversely impacted by the family violence to which they had all been exposed.  Dr E opined that the children are not at risk of emotional abuse or neglect in the care of either parent.  Having regard to the father’s behaviour in the past, I am not sure that I am totally at ease with that recommendation of Dr E.  It seems to me that the father has, from time to time, acted inappropriately, made threats and been violent and when presented with that material later on, has not acknowledged it and I have concerns about his insights in that respect.

8. In relation to the allegations of sexual abuse, it is not asked of me that I make positive or negative findings, and that accords with the current jurisprudence, and I do not intend to do so.  I observe the material before me and observe that it has been admitted on an undefended basis.  It is clear from the context the father disputes the views of the mother in that respect, but I note the observations of Dr E that the mother responded appropriately in the circumstances that she found herself. 

9. Ms F provided a report[2] from the Hobart Children’s Contact Service in relation to contact between February 2012 and March 2012.  I have had regard to the material contained in that report. 

   [2] Filed the 15 June 2012.

10. An affidavit[3] was also relied upon by Ms D, a manager of a sexual assault service in Hobart, who counselled the children.  I note the material contained in that report.

    [3] Filed 3 November 2009.

11. I raised with counsel for the mother and the Independent Children’s Lawyer as to whether I ought to make a finding of unacceptable risk.  I was not pressed to do so and I will not do so in this case, although it is open in the future for such a finding to be made, depending on the circumstances at that time.  I do so also in these circumstances, that the mother has shown a child-focussed approach in the past and it is unlikely that that approach will change into the future.

12. All of the material that is before me I will make available to the child protection authorities with the consent of the mother and the Independent Children’s Lawyer, and absence the participation of the father.  I am not sure that it is necessary for me to go that far in the determination of these proceedings and in doing so, I have particular regard to the relevant provisions of Division 12A in terms of the impact of the proceedings on the children and findings such as that in these circumstances.

13. I am satisfied that there is a benefit in the children having a meaningful relationship with the father in one form or another, provided it is done in a safe and secure environment and does not cause unnecessary stress and anxiety to the children.  The mother is likely to adopt that process, having regard to her reflections over the time of these proceedings and the material contained in these affidavits.

14. There is, in this case, serious issues as to violence, to which I have addressed earlier and which the father says he has taken steps to remedy.  It would need to be seen whether there is a reality in that material or whether it is merely rhetoric, and that will be a matter for the mother and father to work out in the years that follow and, no doubt, with the impact of their children as they become older and, dare I say it, with young teenage children, much more assertive in their wishes as they enter that wonderful time of life between being a child and an adult.

15. I need not put in place any further orders other than those suggested by the mother to protect the children because she has been protective in the past.  In terms of the views of the children, they, I think, from the evidence, seem to want to see their father, but only on the basis that it’s safe and in times that suit them, which is in many ways reflective of the orders that the mother seeks.  The mother has been the primary carer of the children and, through Dr E, there have been endeavours to build a relationship between the children and their father over the last four years.  It is not clear to me whether that has been successful or not, the discontinuance leaves that somewhat in the air.

16. The mother has been the primary decision maker in relation to the children for all of their lives.  The father has endeavoured to participate in that decision-making in limited and sporadic ways.  The mother has fulfilled her role to care for the children and the father has sought to do so, having regard to the material in the past.  There is no issue as to the capacity of the mother to care for the children.  There have been some issues in respect of the father’s capacity to care for them.  I note that Dr E says that he has no difficulties, although I am concerned that Dr E may have adopted a somewhat benign approach in terms of the father’s past history.

17. There is no evidence, as far as I am aware, that the children are of Aboriginal or Torres Strait Islander background and the mother has demonstrated a positive attitude to the children in terms of parenting, except with regard to her, at times justified, concerns about the father’s behaviour and the concerns raised in separation.  I have dealt with family violence elsewhere.

18. The first matter to which I need to turn my mind is a question of parental responsibility. The presumption under section 61DA does not apply, as there are allegations of violence. It would seem to me that I should in any way consider whether there ought to be equal shared parental responsibility. Having regard to the history provided by the mother and the concerns she has about the father’s violence and other behaviours in the past, to put the children in a circumstance where there ought to be equal shared parental responsibility would provide an inability for the mother, to properly parent the children

1. Having regard to all of the circumstances to which I have alluded to earlier, there ought to be an order for sole parental responsibility so that the mother can continue with her role in caring for these children and making decisions about them.  She still has, of course, the responsibility to keep the father informed of any significant aspect of parental responsibility and any significant health aspects with regard to the children and I propose to make an order to that regard, probably through the paternal grandparents if that is easier for the mother.  Therefore, I do not need to consider equal time or substantial time.

2. Given the history of this matter, I would not have considered that equal time would have been in the best interests of these children in any event, nor would I have considered substantial time, bearing in mind the impact at least of the violence and perhaps of other matters on the children.  It would not have been in their best interests.  Any time that the father spends with the children and any communication will need to be dealt with carefully and sensibly, bearing in mind the age, maturity and needs of these children.  I am satisfied that it is likely that the mother will adopt that approach.  If she does not, there is also, sadly, the threat of coming back to Court, which would not serve the parties any particular purpose, nor, more importantly, that of the children.

3. These children have been engaged in litigation since 2009, a period now of almost three years.  The separation occurred almost four years ago, it is time to bring these proceedings to an end and I intend to do so today.  Whilst the orders do not provide for any particular time or any particular communication between the father and the children, or, more importantly, the children and the father, steps have been taken to try and find a basis for such a relationship into the future and hopefully that may occur in the absence of a Court order.

4. To force the children, at this time, into a arbitrary arrangement would not, in my view, be in their best interests.   Accordingly, I accept the submissions on behalf of the mother and the submissions on behalf of the Independent Children’s Lawyer.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 October 2012.

Associate:     

Date:              22 October 2012