Potter and Potter
[2011] FMCAfam 573
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POTTER & POTTER | [2011] FMCAfam 573 |
| FAMILY LAW – Children – parenting orders – where father did not attend court on hearing – best interests of the children – family violence issues – parental responsibility – sole parental responsibility. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA |
| Applicant: | MS POTTER |
| Respondent: | MR POTTER |
| File Number: | SYC 6908 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 June 2011 |
| Date of Last Submission: | 6 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Paraska |
| Solicitors for the Applicant: | Otto Stichter & Associates |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor on the record |
| Independent Children’s Lawyer | Mr Clarke |
| Solicitors for the Second Respondent: | Ross A. Clarke & Associates |
ORDERS
All previous parenting orders are discharged.
The Applicant Mother is to have sole parental responsibility for the children of the marriage [X] born [in] 2005 and [Y] born [in] 2007.
The children [X] and [Y] are to live with the Applicant Mother.
The Respondent Father shall have liberty to apply in respect of the above orders within TWENTY-ONE (21) days of the date of these Orders.
The Independent Children’s Lawyer is to be discharged if there is no application by the Respondent Father within the time specified in Order (4) above.
IT IS NOTED that publication of this judgment under the pseudonym Potter & Potter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6908 of 2009
| MS POTTER |
Applicant
And
| MR POTTER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of two children for orders that they should live with her and she should have sole parental responsibility for them. The children’s father has not attended Court on this occasion and has not attended on several other occasions since the proceedings commenced.
Background
The parties were married in Sri Lanka [in] 2004. They commenced living as a married couple in Australia in October 2004.
There are two children of the marriage, both girls.
The older child, [X], was born [in] 2005. The younger child, [Y], was born [in] 2007.
The parties separated on 24th April 2009, when the Mother left the matrimonial home after an incident where the Mother claims that the Father assaulted her.
On 20th May 2009 the Local Court of New South Wales at [omitted] made a Final Apprehended Violence Order against the Father, naming the Mother as the protected person. The order was in force for 12 months.
The Father was an inpatient at [omitted] from 1st June to 6th July 2009 to deal with his alcoholism.
On 27th August 2009 the parties entered into a Parenting Plan that provided for the children to spend some supervised time with the Father.
The Mother commenced proceedings in this Court by filing an application for parenting orders on 13th November 2009.
The application came before the Court on 9th February 2010, at which time both parties were legally represented. The Court made orders that:
a)the children’s interests should be independently represented by a lawyer; and
b)the Father should spend time with the children for two hours each alternate Sunday, under supervision at the [C] Contact Centre.
The Father did not attend at the Contact Centre.
The Father has not attended Court since then. He has spent varying amounts of time in prison over 2010 and into 2011.
On 22nd March 2010 a Family Report was ordered. The Family Consultant interviewed the father by telephone on 16th September 2010, as he was then an incarcerated at the [omitted] Correctional Centre.
On 22nd September 2010 the Father’s solicitor filed a Notice of Withdrawal as a Lawyer.
The parties were divorced on 27th January 2011.
The application was listed for hearing on an undefended basis on 6th June 2011. The Father did not attend Court.
Evidence
The Mother relied on her affidavits of:
a)13th November 2009;
b)1st December 2009;
c)8th March 2010; and
d)24th May 2011.
The Mother also relied on an affidavit by her cousin, Ms S, of 24th May 2011.
The Father has not filed any affidavit since his affidavit in support of his Response was filed on 25th January 2010.
The Mother attended Court, as did Ms S, but the Father did not. The Independent Children’s Lawyer, Mr Clarke, did not require either woman to be cross-examined on their affidavits.
The Family Report
The interviews for the Family Report were conducted in circumstances of some difficulty, as the Mother required the assistance of an interpreter in the Tamil language and the Father was interviewed over the telephone from the [omitted] Correctional Centre.
The Family Consultant stated that:
It is not possible to make any valid assessment of a parent’s parenting ability by interviewing that parent by telephone. It is also impossible to make any assessment of the parent’s relationship with their child or children without having the opportunity of spending time with them together.[1]
[1] Family Report at page 12 [35]
Consequently, the Family Consultant was not able to make any assessment of the Father’s parenting ability or his relationship with his children. However, she noted that there many inconsistencies in what the Father told her over the telephone. She further noted that the Father’s comments seemed to indicate that he did not view his problems with alcohol seriously. Further, if there was evidence that he had physically abused the Mother, as she claims:
…the attitude he expressed towards her is very disturbing and would suggest that he has great difficulty accepting responsibility for his actions and the effect of these actions on her or the children.[2]
[2] Family Report at 12-13 [36]
The Family Consultant commented that the Father appeared to have little understanding of the child [X]’s problems and needs. The child has been diagnosed with epilepsy and requires ongoing speech pathology treatment.
As for the Father’s understanding of the needs of the younger child, The Family Consultant stated that:
Although he acknowledges that he does not have a significant relationship with [Y], he is suggesting that she spend overnight time with him each weekend and he does not seem to have considered how [Y] would cope with this.[3]
[3] Family Report at 13 [37]
The Family Consultant also commented that the Mother had raised serious allegations about the Father’s behaviour which, if found to be correct:
…would place both [X] and [Y] at risk of serious harm if they were in his care.[4]
[4] Family Report at 13 [38]
The recommendations of the Family Consultant were that the children should spend time with their father in accordance with the orders made on 9th February 2010, that is, for two hours each fortnight at the [C] Contact Centre.
It was also recommended that the Father should be further interviewed and observations of him with the children should be conducted once he was released from prison.
The Relevant Law
When the Court is deciding whether to make a particular parenting order, it is required by s.60CA of the Family Law Act 1975 to regard the best interests of the children concerned as the paramount consideration. The Court determines what is in the children’s best interests by considering the matters in subsections 60CC(2) and 60CC(3) of the Act.
Again, when making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. However, this presumption does not apply in cases of family violence and may be rebutted by evidence that it would not be in the children’s best interests for their parents to have equal shared parental responsibility.
I have considered all of those matters.
Conclusions
The best interests of the two children are the paramount consideration. They have a meaningful relationship with their mother but little relationship with their father, especially in the case of [Y].
The history of family violence and the evidence of their father’s alcohol abuse show the need to protect the children from physical or psychological harm. This must necessarily involve serious restrictions on the time that the Father spends with them, and would require that this time to be supervised.
The Family Consultant has reported that [X] said that she did not like her father and did not wish to see him. There is no information about [Y]’s views, which is hardly surprising, due to her young age and the fact that she has spent very little time with her father.
The Mother has attempted to encourage the children’s relationship with the Father, although this has been difficult, due to the Father’s behaviour.
Any significant increase in the time that the children spend with the father and away from the mother would be a source of anxiety to them.
The Mother appears to have the capacity to provide for the needs of the children, but the evidence, albeit untested, strongly suggests that the Father does not.
[X] was born [in] 2005. She is therefore five years and ten months old. [Y] was born [in] 2007. [Y] is three years and six months old. The children are from a Sri Lankan background.
[X] has been diagnosed with epilepsy and also requires speech pathology. She has been diagnosed as suffering from Post Traumatic Stress Disorder as a result of her exposure to family violence.[5]
[5] Family Report 6 [9]
The issue of family violence looms large in this matter. There was an Apprehended Violence order in force against the Father naming the mother the protected person. The Mother deposed in her affidavit of 24th May 2011 that the Father was found guilty at [omitted] Local Court on 7th April 2011 on a charge of breaching the Apprehended Violence Order. The Father did not attend Court on 15th April and the Mother deposed that he was later arrested and bailed to appear on
19th May 2011. The Mother states that she does not know the outcome of the proceedings.
In her affidavit of 24th May 2011, Ms S deposed that she received telephoned threats from the Father in May 2010 and on various dates in February 2011. The police obtained an interim Apprehended Violence Order on her behalf against the Father on 11th February 2011 and in March 2011 the Apprehended Violence Order was made final for a period of two years.
It would be preferable to make parenting orders that would be least likely to lead to the institution of further proceedings in relation to the children. There should be finality to litigation. The Court will make orders intended to promote the best interests of the two children concerned. Orders will be made in the Father’s absence, but provision will be made for him to apply to vary those orders within a reasonable time.
This is clearly a case where the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility does not apply. The Mother should have sole parental responsibility for the children.
The children should live with their mother. If the Father seeks orders that he should spend time with the children, he will need to apply to the Court and satisfy the Court that it is in the children’s best interests for them to spend time with him.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 June 2011
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