Redlon and Harlan - [2012] FMCAfam 1198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REDLON & HARLAN

[2012] FMCAfam 1198

FAMILY LAW – Parenting – father absent from hearing – history of violence and abuse.

Family Law Act1975 ss.11F, 60CC
Federal Magistrates Court Rules 2001 r.16.05

Applicant:

MR REDLON

Respondent:

MS HARLAN

File Number:

MLC 5581 of 2011

Judgment of:

Riley FM

Hearing date:

18 October 2012

Date of Last Submission:

18 October 2012

Delivered at:

Melbourne

Delivered on:

18 October 2012

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

The applicant was not represented

Counsel for the Respondent:

Ms Campbell

Solicitors for the Respondent:

Trapski Family Law

Counsel for the Independent Children’s Lawyer:

Ms Agresta

Solicitors for the Independent Children’s Lawyer:

Glezer Lanteri & Associates

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for [X] born [in] 2004 (“[X]”), [Y] born [in] 2005 (“[Y]”) and [Z] born [in] 2008 (“[Z]”).
[X], [Y] and [Z] live with their mother.
[X], [Y] and [Z] spend time and communicate with their father as agreed between their parents in writing.
The father, his servants and agents be restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother; and
(b)discussing these proceedings
to, with or in the presence or hearing of [X], [Y] and [Z], or any of them, and from permitting any other person to do so.
For 24 hours immediately prior to the commencement of any time spent with [X], [Y] or [Z] (including any period during which [X], [Y] or [Z] live with him), and during all such time, the father be restrained from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and
(b)any over the counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
The mother is authorised and permitted to apply for and receive Australian passports for [X], [Y] and [Z] without first obtaining the written consent of the father.
The mother is permitted to travel overseas with [X], [Y] and [Z] without the prior consent of their father.
The mother ensure that [Y] attend upon all his medical practitioners for the treatment/intervention required as a result of the diagnosis of autism and the mother follow all reasonable recommendations as may be made as to treatment or interventions.
The mother ensure that she attend personally to the toileting, bathing and dressing of [X], [Y] and [Z].
The mother arrange for a sealed copy of this order be served on the father by post at his last known address within 14 days.
Pursuant to s.65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The mother denies the necessity for order 10.
B.Pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5581 of 2011

MR REDLON

Applicant

And

MS HARLAN

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for parenting orders in respect of three children, [X] born [in] 2004, [Y] born [in] 2005 and [Z] born [in] 2008.
The application was initially filed by the father on 7 August 2012. There have been numerous hearings before the court on an interim basis and two s.11F counselling sessions. When the matter was last before the court on 3 September 2012 the father failed to appear. At that point, the court adjourned the matter until today and included in the orders a notation that if the father failed to attend court on 18 October 2012 at 10am final orders may be made in his absence in accordance with the mother's amended response.
The mother filed an amended response and, I am told, served a copy of that amended response and the orders made on 3 September 2012 on the father by post. Counsel for the mother has undertaken to ensure that an affidavit of service is filed within 24 hours.
The father did not attend the hearing today. I am told by counsel for the independent children’s lawyer that the father was outside the court at 10am but he did not come in. The matter was stood down at the request of the independent children's lawyer. It seems that the father shortly afterwards left the precincts of the court.
When the matter came back before the court later in the morning, the father was called outside, but he did not respond to the call. The court attempted to telephone the father, but the call went through to voicemail.
As I have indicated, the father did not attend the interim hearing on 3 September 2012 either. There was s.11F counselling session on 3 September 2012 which the father did not attend. The family consultant noted that he had not received any telephone calls or any explanation as to why the father did not attend on that occasion.
Subject to receipt of the affidavit of service, I accept that the father was aware of the proceedings today and chose not to participate in them.
The father filed a notice of risk of child abuse on 7 August 2012. The mother, with whom [X], [Y] and [Z] live, shares a house with another family. The father alleged that the man in the other family had showered [Z] and had inappropriately touched her. The daughter had allegedly made a comment to the father's mother that her bottom was sore and also told the paternal grandmother that the man living in the house had showered her on more than one occasion. I am told that the Department of Human Services (“DHS”) has investigated that complaint and has not found it to be substantiated. The father himself is not here to press the claims in that notice. The independent children’s lawyer does not seek to pursue those claims. I am not able to take them any further.
The mother filed an affidavit on 16 August 2012. She has not been cross-examined on that affidavit. The independent children’s lawyer did not seek to cross-examine her and the father is not in attendance. The mother’s evidence is unchallenged and I accept it.
The mother said in her affidavit that she and the father were married on [omitted] 2003. They had lived together for about a year before marriage. They have three children. The parents separated in about February or March 2005, before the second child, [Y], was born. The parents had an on and off relationship for a number of years. The mother fell pregnant with both [Y] and [Z] during those on and off periods. The parents were divorced on 6 February 2007.
The mother reported a history of family violence, which was witnessed by [X] and [Y]. The mother said that she is concerned the father has issues with illicit drugs, alcohol and anger management. She believes the father uses marijuana daily and said that the father has also said that he uses speed and ice.
The mother reported that the father has slapped her hard enough on the face to leave a bruise or mark. The father has also attempted to choke the mother and has held a knife to her throat. The father has accused the mother of having sex with other men.
The mother reported that the father has become extremely angry when he drives with [X], [Y] and [Z] in the car. On one occasion, the father was driving in a frightening manner. The mother persuaded the father to stop at a petrol station where she called the police. They attended and took the father away.
The father, according to the mother, has threatened to kill her. She said that he has access to a gun. The mother reported numerous occasions when the father became extremely angry about minor matters, consumed excessive quantities of alcohol and drove a car in an erratic manner. The mother also said the father has threatened to rape all the females living in her household. The mother reported that the father was violent towards his ex-wife and another ex-partner.
The mother reported that she lives in a house which is her own, with four bedrooms and a study. She said because of the family violence, [X], [Y] and [Z] prefer to sleep in one room. She said that she shares the house with another family, which consists of a man, a woman and their three daughters. The mother said that she works full time with [omitted] and that she relies on the assistance of her friend who lives in the house with her to help with getting [X], [Y] and [Z] to and from school.
The mother reported that [Y] has broad spectrum autism and can have challenging behaviours. He attends a normal school but is in a special class and has two teachers. The mother said that [Y] is not coping with spending time with his father. She said that [Y] needs stability and routine and said the father does not provide this. The mother said that [X] is in grade 2 at [school omitted]. He is doing well and has made friends. [Z] is in kindergarten.
The mother reported that she took [X], [Y] and [Z] to Singapore in late March, early April 2012 to visit the maternal grandparents. The maternal grandfather is 95 years old and the mother said he is in poor health. The mother denied that there is any issue about the other people living in the house causing any problems for the children.
In these circumstances, the mother seeks orders as follows:
1. All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for [X] born [in] 2004, [Y] born [in] 2005 and [Z] born [in] 2008 (“the children”).
3. The children live with their mother.
4.The children spend time and communicate with the Father as agreed between the parties in writing.
5.The father, his servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Mother; and
(b)discussing these proceedings
to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
6.For 24 hours immediately prior to the commencement of any time spent with the children (including any period during which the said children live with him), and during all such time spent, the Father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
7.The Mother is permitted to travel overseas with the children without the prior consent of the Father.
8.The Mother is permitted to renew the children’s passports without the consent of the Father and the Department of Foreign Affairs and Trade (Australian Passport Office) is directed to issue passports in the names of the children, namely [X] born [in] 2004, [Y] born [in] 2005 and [Z] born [in] 2008 notwithstanding if the written consent has not been obtained from the Father.
9.That a sealed copy of this order be served upon the father by post at his last known address.
The independent children’s lawyer considers that those orders are in the best interests of [X], [Y] and [Z] but also seeks two additional orders, which are as follows:
1.That the mother ensure that the child [Y] attend upon all his medical practitioners for the treatment/intervention required as a result of the diagnosis of autism and further that the mother follow all reasonable recommendations as may be made as to treatment or interventions.
2.That the mother ensure that she attend personally to the toileting, bathing or dressing [of] any of the children and it is noted that the mother denies the necessity for this order.
As I have mentioned, there have been two s.11F reports in this matter. The first was conducted by Ms T on 4 August 2011. On that occasion, the family consultant recommended that [X], [Y] and [Z] spend structured time with their father. She noted that [X] and [Y], in separate interviews, had stated that their father would yell at them and they would feel intimidated. Ms T recommended that [X], [Y] and [Z] spend two or three hours on Saturday and Sunday in each week with their father. The parents had apparently agreed to this.
In the more recent s.11F report conducted on 3 September 2012, Mr E said that he found it very difficult to make any recommendations as the father had not attended the interviews. He did report that [X], [Y] and [Z] confirmed that there had been violence, aggression and abuse perpetrated by the father against the mother in their presence. Mr E recommended that there be weekly time spent by [X], [Y] and [Z] with their father, but thought there should be supervision. There were difficulties with working out who would be a suitable supervisor. The father’s mother was proposed, but she seemed to be incapable of controlling the father’s behaviour. Mr E recommended subpoenas be issued to the police and DHS, and suggested a psychiatric assessment of the father.
This matter has been before the court on numerous occasions. Orders have been made on an interim basis allowing for [X], [Y] and [Z] to live with their mother and spend time with their father. The orders made on 23 August 2012 were made by consent and provided that:
[X] born [in] 2004 (“[X]”), [Y] born [in] 2005 (“[Y]”) and [Z] born [in] 2008 (“[Z]”) spend time and communicate with their father as follows:
(a)    on Saturday 25 August 2012 from 10am to 1pm;
(b)    on Tuesday 28 August 2012 from 4pm to 7pm;
(c)on Friday 31 August 2012 at [X] and [Y]’s school at the time advertised for the Father’s Day events; and
(d)    on Father’s Day 2 September 2012 from 10am until 3pm.
In considering the best interests of the child, the court must have regard to the matters set out in s.60CC of the Family Law Act1975. The first two of those factors are primary considerations.
The first of those is the benefits of the children of having a meaningful relationship with both of the child’s parents.
It seems that in the past [X], [Y] and [Z] have had a substantial amount of time with their father. It was agreed at one time that [X], [Y] and [Z] would spend four evenings a week with their father from after school till after dinner plus one day on the weekend. [X], [Y] and [Z] no doubt have a relationship with their father. On the other hand, I am told from the bar table that [X], [Y] and [Z] have been much more settled in the last six weeks, during which time they have not spent any time with their father.
It seems that when the father is not affected by drugs or alcohol, he is capable of having a meaningful relationship with [X], [Y] and [Z] that would be a benefit to them. When he is affected by drugs or alcohol, he is violent, intimidating and abusive. In those circumstances, it seems that there would be a limited benefit to [X], [Y] and [Z] in having a relationship with their father.
The next factor is the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The father in this case, on the evidence before me, has been extremely violent towards the mother on many occasions and in front of [X], [Y] and [Z]. This is undoubtedly very frightening for them and could well be psychologically damaging for them. It is imperative that [X], [Y] and [Z] be protected from any further incidents of that nature.
The next factors are described in the legislation as additional considerations. The first of those is any views expressed by the child and any factors, such as the child’s maturity, that the court thinks are relevant to the weight the court should give the child’s views.
All the children in this case are very young. The oldest is eight. As such, the weight that the court would give to their views is probably not great. Nevertheless, they have expressed some fear at the prospect of seeing their father and concern about what he might do to their mother. Those concerns should be given considerable weight.
The next factor is the nature of the relationship of the child with each of the child’s parents and any other persons. It appears that [X], [Y] and [Z] have a very good relationship with their mother. Their relationship with their father seems to have been affected negatively by the father’s violence and abuse towards their mother.
The next factor is 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. The mother, in the past, has demonstrated a willingness to encourage such a relationship between [X], [Y] and [Z] and their father, though she seems less willing at present. The father has shown a willingness and an ability to encourage a close and continuing relationship between [X], [Y] and [Z] and their mother.
The next factor is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or person with whom the child has been living. The proposal is that [X], [Y] and [Z] continue to live with their mother. The only change that is proposed is that [X], [Y] and [Z] would only spend time with their father as agreed between the parents.
It may be that that means that there is not a great deal of time spent by [X], [Y] and [Z] with their father. While, in general terms, it is in a child’s best interests to have a relationship with both parents, there can be circumstances where such a relationship would be deleterious to the child’s best interests. It seems to me that the effect of the children in this case spending less time with their father would probably only be to enable them to be more settled and to recover from the psychological attack that has been inflicted on them by their father’s violence and abuse of their mother.
The next factor is the practical difficulty and expense of a child spending time with and communicating with a parent. Nothing has been put before the court in that regard.
The next factor is the capacity of each of the child’s parents and any other person to provide for the needs of the child. The mother seems to be well able to provide for the needs of [X], [Y] and [Z], albeit with the assistance of the other people with whom she is living. The father seems to have been able to care for [X], [Y] and [Z] most evenings each week and on one day each weekend. However, [X], [Y] and [Z] report that he leaves them alone when they are with him, that he just watches television and that he ignores them. It seems that the father’s capacities as a parent are limited.

The next factor is the maturity, sex, lifestyle and background of each of the child’s parents and any other person. The mother is employed and seems to be fully engaged in a normal life. The father, on the other hand, seems to be involved in a lifestyle involving drug and alcohol abuse.
The next factor only applies if the child is an Aboriginal or Torres Strait Islander. It is not suggested that the children are of that race or ethnicity.
The next factor is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. The mother seems to be demonstrating an admirable attitude towards the responsibilities of parenthood. The father, on the other hand seems to have abnegated his responsibilities. He has absented himself from court today and does not appear to be pursuing a relationship with [X], [Y] and [Z].
The next factor is any family violence involving the child or a member of the child’s family. The evidence before the court is that the father has been persistently, grossly violent towards the mother.
The next factor is any family violence order that applies to the child or member of the child’s family if the order is a final order or the making of the order was contested by a person. I am told that there was recently an intervention order made on an interim basis. That was not contested. However the matter has been referred for final contested hearing on 20 November 2012. As things stand, there is no relevant order before the court.
The next factor is whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. The father is not present today. Consequently, any orders that are made may be set aside pursuant to r.16.05 of the Federal Magistrates Court Rules 2001. Nevertheless, it seems to be to be in the [X], [Y] and [Z]’s best interests to make final orders today.
The first question for the court to decide is the question of parental responsibility. The mother seeks, and the independent children’s lawyer supports, an order whereby the mother would have sole parental responsibility for [X], [Y] and [Z]. The presumption of equal, shared parental responsibility is rebutted in circumstances of family violence, as has occurred in this case. It seems to me that it is appropriate for the mother to have sole parental responsibility for [X], [Y] and [Z]. The father has not participated in these proceedings today or on the last occasion when it was before the court. He did not attend the s.11F interviews on 3 September 2012. Given his violence, it seems to me that it would be unlikely that the parents would be able to communicate in a constructive manner in relation to the long-term needs of [X], [Y] and [Z].
That being so, it is not necessary for the court to consider whether the children should spend equal or substantial and significant time with each parent. It seems to me that, in any event, such time with the father would be contrary to [X], [Y] and [Z]’s best interests. The father has not conducted himself appropriately in the presence of [X], [Y] and [Z], both by being violent and abusive towards their mother and by essentially ignoring them when they are in his care.
It seems to me overall that it is appropriate and in the best interests of [X], [Y] and [Z] that there be orders as sought by the mother and the independent children’s lawyer.
In particular, I note the mother’s request to be able to obtain a passport without the father’s consent for each of [X], [Y] and [Z] and to be able to travel overseas with [X], [Y] and [Z] without the father’s consent. I accept that the mother has family overseas and that her father is elderly and unwell. It seems to me to be entirely reasonable that [X], [Y] and [Z] should be able to visit their grandparents. It is in their best interests that such visits be able to occur without the need to attempt to engage with the father and, if need be, to bring the matter back to court for appropriate orders.
I have no doubt that the mother would return with [X], [Y] and [Z] to Australia. She has a good job and a house here. It seems most unlikely that she would not want to return with the children to Australia.
There will be orders by the court in terms of the minutes.
I will add the usual notation under r.16.05 of the Federal Magistrates Court Rules 2001.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 13 November 2012