Poultosisis and Covey

[2009] FamCA 856

FAMILY COURT OF AUSTRALIA

POULTOSISIS & COVEY [2009] FamCA 856

FAMILY LAW – CHILDREN – Undefended hearing – Sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Ms Poultosisis

RESPONDENT: Mr Covey

FILE NUMBER: MLC 5595 of 2009

DATE DELIVERED: 13 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pandeli

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co

Orders

1. That the applicant have leave to proceed with her application filed 24 July 2009 on an undefended basis.

2. That all previous orders be discharged.

3. That the mother be permitted to change the surname of the child from Covey to “Covey-Poultosisis” without obtaining the respondent father’s consent.

4. That the child … born … August 2003 live with the mother.

5. That the mother have sole parental responsibility for the child.

6. That the child spend no time with the father.

7. That all outstanding applications be otherwise dismissed.

8. That my reasons for judgment this day be transcribed and be made available to the parties.

9. That the solicitor for the mother serve upon the father by post, copies of the orders made this day and in due course the reasons for judgment.

10. 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 under the pseudonym Poultosisis & Cuvvy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5595 of 2009

MS POULTOSISIS

Applicant

And

MR COVEY

Respondent

REASONS FOR JUDGMENT

1. This is a case about a child who was born in August 2003.   He is almost six.  His case is before me today because of an incident which occurred some time in about March this year.   The child’s father is Mr Covey.   His mother is Ms Poultosisis.  The mother and the father lived together for about a year between early 2002 and early 2003.  On 12 September 2006, Bennett J made orders by consent of the parties for the mother and the father to have equal shared responsibility for the child and that the child live with his mother.

2. Her Honour also ordered that the child spend time with his father on each alternate weekend from Friday through to Monday in one week, and then Thursday overnight into Friday in the second week, together with an equal sharing of school holidays.  The interesting point about those orders is that the child was just three years of age when the orders were made.  At that hearing, both mother and father were represented by counsel.  I have therefore concluded that the orders were made on the basis that the court was satisfied that they were in the best interests of the child.

3. On 26 June 2009, the mother filed an application seeking to discharge the 2006 orders.  She sought that the child live with her, that she have sole parental responsibility for him and that he spend no time with his father.  It will be therefore seen that the application sought a dramatic change in the child’s life, at least in terms of the court orders sought by the mother.  When the mother’s application was filed, it was said that the father had not seen the child since April 2009;  that is over two months. 

4. On 5 July 2009, the father was served personally with the mother’s documents.  That evidence is set out in the affidavit of Mr P, filed 10 July 2009.

5. Mr P said he delivered the application and a Notice of Risk of Child Abuse, to the father, who acknowledged who he was.  Mr P served the documents at an address in R.  

6. The mother’s application was returnable on 21 July 2009.  It came before me that day and the father did not appear. I made orders adjourning the proceedings until today.  In the order I made, there is an error.  It is an error of the court.   The order required the father to attend on 26 June, failing which the mother could proceed on an undefended basis.   But the order otherwise reads that the proceedings were adjourned until today.  The father has not attended today. I have had him called at just prior to 10 am and there was no appearance.

7. Pursuant to the order, the father was served by post on 28 July 2009.  Service by post was appropriate because of the fact that it was to the postal address at which he was served personally. 

8. Apart from not seeing the child since April 2009, the father has not approached the court to participate in or endeavour to resolve the parenting dispute.  I might be reticent normally to make orders on a final basis, save in this case for the serious issues that are set out in the mother’s affidavit.  

9. The father has had an opportunity to be heard and has chosen not to attend.   It is in the child’s interests that, at least for the moment, the matter of his future welfare and protection is clarified.

10. The mother’s evidence was set out in the affidavit filed 26 June 2009.  That affidavit was confirmed by her giving evidence again this morning.   She said that, after the orders of Bennett J in 2006, the father complied for approximately one year, but since that time he has been spending less time with the child due to his work commitments.  He also moved to R, which is a considerable distance from her home.  The mother then set out that often the father would forget to have contact with the child, because he was out with his friends.  She said she recalled occasions attending the changeover location and the father did not turn up.  She said on other occasions the father would contact her prior to the scheduled weekend and advise her that the child could not spend time with him.

11. She said for the past 18 months, the child was spending time with his father on weekends on a sporadic basis. When the child did visit his father, notwithstanding what was set out in the orders of 2006, he would only usually stay for one night at a time.  In addition to those problems, the child has been having behavioural problems and has been seeing a school counsellor.  In May 2009, the mother received a telephone call from the social worker at the child’s school.  The social worker indicated that the child was having behavioural difficulties.  The mother received a letter from the child’s teacher.  She annexed that letter to her affidavit.

12. This is a less adversarial trial pursuant to Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and the father has been served with all of the documents, so he is aware that I am going to take all of those matters into account. The letter which is attached to the affidavit is quite disconcerting. It observes behavioural problems in February and March. Those behaviours were described as aggressive and uncontrolled behaviours where the child refused to participate in classroom activities or respond to the teacher’s request, and that he continued to scribble with anger and force using only the colour black when he was drawing. In March, he was observed hitting other children and resisting being controlled in class. The teacher described his behaviours as extreme.

13. An unusual observation was made from a teacher’s perspective, namely that, overall in Term 1, these extreme emotional responses occurred after the child had had access visits with his father.  The teacher indicated she knew that because she had been informed of the visits by the child’s mother.  In Term 2, the teacher described the child’s behaviour as having improved.  He now attempts school work, is becoming more cooperative, is progressing academically and responds to adults better.  She said she observed him to be a happier child, and he tended to enjoy interacting in a positive way with other children.

14. The importance of that evidence is consistent with the evidence of the mother that the father has not seen the child since April.   I have concluded that Term 2 is after April 2009.  It is also important to note that the author of the letter, the teacher, described herself as holding a Degree of Bachelor of Teaching from the University of Melbourne and a Bachelor of Social Science (Psychology) from Swinburne University.  I have concluded that she has experience in the area of child behaviour.

15. In addition to those problems, it seems that the child has also made a disclosure in March 2009 about having been punched in the body, face and on his penis by his father.  That disclosure was made to the school teacher.  For reasons best known to the teacher, those matters were not drawn to the attention of the mother until May.  According to the mother, the teacher explained that she was not wanting to disrupt any arrangements that she had with the father.  The mother described her position about the child spending time with his father as concerning.   She said the child said often that he did not want to see his father and she was now aware of why that was the case.  It is of serious concern that the child’s progress at school had been severely impacted by what had occurred. 

16. In addition to filing the application, the mother also filed a Notice of Risk of Child Abuse, as she was required under the Act. That notice alleged that the child was at risk. The risk in this case is violence of the most appalling nature. The notice acts as a notification in Victoria to the Department of Human Services. On 26 June 2009, the Department was advised of the s 67Z notification. I note, however, that the Department has not intervened in these proceedings.

17. At the last hearing, I gave the mother leave to amend her application, provided it was served.  I have, and accept, the affidavit of Ms G that on 27 July 2009 she sent the amended application and affidavit to the father at the R address, which was that which I had set out in the order.

18. I am satisfied the father has had the opportunity to read what the mother says and to participate if he chose. 

19. On 24 July 2009, in the mother’s amended application, she sought additional orders that she be allowed to change the name of the child to Covey-Poultosisis without the father’s consent.  That arises out of the fact that there had been previous orders that had not been carried into effect.

20. The only other evidence of the mother is that set out in an affidavit filed on 24 July 2009.  In that affidavit, the mother sets out that there has been a text message from the father.  It was not in the previous affidavit, but I see no reason to accept that it was not made.  According to the mother, the text message came in at 7.55 pm and it read:

    Child support recording.  They don’t lie.  Good luck.

21. She said that earlier that day she had received another message from the father which read:

    You can try covering your tracks as much as possible.   You have stopped me from seeing [the child] and I have proof.   There won’t be no mediation.  I will make sure of that.  See you in court.   Solicitors and court always get used to it.

22. There was a further text message on the same day that read:

    By the way, the nice little surprise you got coming to you is compliments of me.  Hope you enjoy it.  It is to say thanks for taking my son away from me.  Cheers.

23. I am not entirely sure what is behind the father’s cryptic message.  Perhaps it would have been better if he had been less cryptic and brought his complaint about being excluded from the child’s life, where the less adversarial environment might have enabled the court to address the issues and sought the intervention of a family consultant.  In addition, the court would have had the opportunity to hear some comprehensive evidence from both parents which could have been tested. 

24. The evidence to which I have referred is all I have to work with.  The father has not sought contact with the child since April 2009 and the mother has not heard from him, apart from the text messages to which I have referred.  The mother’s solicitor acted for her in the proceedings in 2006.  The mother’s solicitor and the court have received no contact from the solicitors who acted for the father in 2006. 

25. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides that each of the parents of a child who have not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all of the duties, powers and authority which, by law, parents have in relation to a child.

26. What I am being asked to do here is to make an order for sole parental responsibility.  In other words, I am being asked to give to the mother all of the duties, powers and authority which by law parents have in relation to a child to the exclusion of the father. 

27. Section 64B of the Act sets out that in a parenting order, the court may deal with a number of matters. Those include the person or persons with whom a child is to live, the time that a child is to spend with another person or persons and the allocation of parental responsibility.

28. It is specifically those three things that I am being asked to deal with here. The objects and principles in Part VII of the Act are to be applied in determining any parenting dispute. One of the objects of Part VII of the Act is:

    to ensure 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.

29. It is also, however, a principle and object of Part VII that:

    children be protected from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

30. Two other objects of Part VII are directed to parents so that children receive adequate and proper parenting.  In respect of those matters, I am perplexed as to why the father is not only not here but why he had such an insignificant role in the child’s life, having regard to the nature of the orders which were made in 2006.  I repeat what I said earlier about the fact that the orders were made when the child was only three years of age.  

31. The principles underlying the objects in Part VII are that except where it would otherwise be contrary to a child’s best interests, children have a right to know and be cared for by both of their parents.   They have a right to spend time on a regular basis and communicate on a regular basis with both of their parents.

32. Children also are expected to live in a family in which parents jointly share duties and responsibilities concerning the welfare and development of children.  In addition, the legislation expects parents to agree about future parenting of their children.  When I consider the facts in this case, limited as they are, it is difficult to see how any of those principles or objectives can be met. 

33. Fundamental to any decision in relation to parenting is the provision set out in s 60CA, which reads:

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

34. Section 60CC provides primary considerations and additional considerations.  Whilst there is some debate about the distinction between primary and additional considerations, this is a case where the dichotomy seems quite clear. 

35. The primary considerations of the court are the benefit of the child having a meaningful relationship with both parents and also the need to protect the child from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  In this case, those two twin pillars, as they are called, would be completely at odds with each other if an order was made on this evidence for the child to spend time with his father. 

36. Every child benefits from having a meaningful relationship with both parents, but that must be on the basis that they are protected from physical and psychological harm.  The additional considerations are set out in subsection (3) and they include:

    (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 willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (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)any family violence order that applies to the child or a member of the child's family, if:

    (i)       the order is a final order; or

    (ii)      the making of the order was contested by a person;

    (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.

37. One of the significant considerations in subsection (3) is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.  This is one of those cases where, as I said earlier, the child deserves to have his life ordered.  The allegation made by the child about his father is serious;  any abuse of a child is.  I have no evidence to contradict the mother’s evidence;  it is plausible, having regard to the school’s view.  It is important, therefore, that the court only make orders that protect the child from harm. 

38. I find, therefore, that there is a risk that the child would be hurt if the 2006 orders were continued.

39. The child is too young to have a view about his future, and the best evidence I have is that he has settled at school since the contact with the father stopped.  In addition, the mother’s evidence is that he was reticent about attending time with his father. 

40. I do not know the nature of the relationship between the child and his father.  I have the unchallenged and plausible evidence of the mother that the father was a sporadic parent.  There is no suggestion of any problem between mother and child. 

1. In respect of the attitude to parenting, I have concluded that the mother has acted responsibly, having regard to what she was told by the school.  To hurt a child, as is alleged against the father and not challenged by him, is clearly an indication of irresponsible parenting.  It also leaves open to a finding the question of whether a parent – in this case, the father – has the capacity to be a parent to the child at all.

2. In this case, there is evidence of family violence as it is defined in s 4 of the Act. I have no reason to doubt the evidence of the mother as to what happened.

3. It is also important to make orders in this case that are least likely to bring the parties back to court.  If the father wishes to contribute to the child’s life, his approach thus far, of hurting the child and then not participating, leaves a lot to be desired. 

4. Section 60CC(4) requires me to consider the way in which the parents have participated in spending time with the child and facilitating the other’s relationship.  Curiously, the father accuses the mother, in his text message, of endeavouring to alienate the child, but then does not make the approach to the court to try and sort the matter out.

5. Furthermore, it is of some significance that, according to the mother, the father rejected a mediated approach. 

6. It is, therefore, in the best interests of the child that orders be made that he live with the mother and spend no time with his father until such time as the father explains his conduct and proves that he wants to consistently contribute something positive to the child’s life. 

7. I have already referred to the fact that the mother has applied for sole parental responsibility.  Section 61DA provides that there is a presumption that parties who are parents of a child have equal shared parental responsibility.  The rebuttal of that presumption applies in circumstances of family violence, or where a court is satisfied that it would not be in the best interests of a child for that presumption to be applied.  This is a case in which I am satisfied that the presumption should be rebutted on both the basis that it is not in the child’s best interests, and because I am satisfied that the child has been the subject of some family violence.  In those circumstances, the mother will have sole parental responsibility.

8. The parties’ earlier intention about the surname for the child was clear.  It is something that has not been completed and is unlikely to be the subject of cooperation now.  I see no reason as part of the power to make parenting orders why the mother should not have the right to make the application to the state authority to change the child’s name in accordance with what was clearly intended in 2006.  Under those circumstances, I propose to make the orders as set out in the amended application filed on 24 July, and I will make the usual other orders dismissing all outstanding proceedings, removing all proceedings from the list of cases awaiting a hearing.  There will also be an order that the solicitor for the mother serve by post upon the father, in the usual way, these orders, and, in due course, my reasons for judgment, which I shall have transcribed.  I make the usual orders under s 65DA(2) and s 62B. 

I certify that the preceding Forty Eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 August 2009