Roberts and Mansfield

[2009] FamCA 1075

FAMILY COURT OF AUSTRALIA

ROBERTS & MANSFIELD [2009] FamCA 1075

FAMILY LAW – CHILDREN – with whom a child lives and spends time – where the father discontinued his application and the matter proceeded undefended – whether the orders proposed by the mother to be made by default are in the best interests of the child – where the Independent Children’s Lawyer supports the proposed orders – orders made in terms proposed by the mother – mother to have sole parental responsibility – child to live with the mother and spend time with the father

Family Law Act 1975 (Cth) ss 60CC, 65C & 65DAA

APPLICANT: Mr Roberts

RESPONDENT: Ms Mansfield

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1639 of 2008

DATE DELIVERED: 27 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr I. Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs V Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. I give leave to the mother to file the affidavit backdated to 26 October 2009 when it was filed.

2. I dismiss the husband’s proceedings in relation to the child … born on … December 2006 and refer the matter to a decision on an undefended hearing before me today at 10.15 am when I will hear submissions from the wife’s counsel and the Independent Children’s Lawyer’s counsel as to the orders that should be made in the child’s best interests.

3. I make orders in terms of the minute this day signed by me.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1639 of 2008

MR ROBERTS

Applicant

And

MS MANSFIELD

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been before the Court for a considerable period of time.  There are a large number of documents which have been filed in the proceedings.  The current situation is that the matter was referred by me for steps to be taken to prepare it for a final hearing and orders have been made by way of directions.  In particular orders were made on 26 July 2009 with a view to preparing this matter for a conclusion of trial and certain steps were to be undertaken.  When the matter came on before me this morning it was to come on before me for a compliance check to ensure that it was ready for a final conclusion hearing commencing on 11 November 2009.

2. The father filed an affidavit on 19 October 2009 which was not an affidavit of evidence in chief but was an affidavit to which he annexed a letter which he had sent to the mother’s solicitors putting his proposals for final orders.  The mother has filed her affidavit of evidence in chief late.  However, I gave leave for the late filing, that affidavit having been filed on 26 October 2009 and adequate explanation being given for its delay. 

3. When the matter came on before me this morning the father appeared.  He has been and continued to be unrepresented.  The mother was present represented by Mr Charman and the Independent Children’s Lawyer was represented by counsel, Mrs Lindsay.  The father indicated at the commencement of the hearing before me that he was not proceeding with his applications before the Court.  After discussions with me he conceded that he wished to discontinue his proceedings and was not seeking any orders. 

4. As a result I dismissed his proceedings and then adjourned the matter for further consideration of proceeding with the matter on an undefended basis before me this morning. 

5. I have received the draft of final minutes of order which the mother proposes that I make.  Those orders are supported by the Independent Children’s Lawyer.

6. This case concerns the welfare of the one child of the parties. The child was born in December 2006 and is therefore not quite three years of age.  I have before me the affidavit of the mother which was filed on 26 October 2009 which sets out in considerable detail the history of the relationship between the child’s parents and the difficulties which have been encountered in relation thereto. 

7. The Court is now being required to make orders by way of default but it is still necessary for the Court to be satisfied that the orders which are proposed are orders which are in the best interests of the child.  Part VII of the Family Law Act1975 (Cth) sets out numerous sections which relate to parenting orders concerning children and in particular Subdivision B, which commences with s 65C, sets out matters in relation to parenting orders and the Courts power to make those. In particular s 65DAA requires the Court to consider factors which might relate to the child’s best interests if it is proposed that there by an order for joint parental responsibility.

8. However, it is clear from the provisions of the Act that that order must also be an order which is in the best interests of the child.  The history of the poor relationship between the child’s parents and the allegations of domestic violence alleged by the mother in the affidavit material before me, supported by a finding in the Magistrates Court which put in place a domestic restraining order, are such that in my view it is not in the child’s best interests for there to be joint parental responsibility. 

9. It is not therefore a requisite that I consider whether the child should spend equal time or substantial significant time with each of her parents in those circumstances.  However, I take into account in any event the objects of Part VII of the Family Law Act which includes that children have a significant and meaningful relationship which each of the child’s parents where that is appropriate and in the best interests of the child.  In this particular case I am satisfied that the inability of the parties to communicate on a civil basis to discuss matters which relate to the child’s welfare make it not in the child’s best interests for there to be joint parental responsibility in this case.  I am satisfied that it is in the child’s best interest that the mother have sole parental responsibility. 

10. I turn to consider then whether the other orders which are proposed are in the best interests of the child or what orders would indeed be in her best interests bearing in mind the objects of Part VII and the material required by the Court to be considered in s 60CC. The orders which are proposed by the mother provide that the child live with her and spend time with the father in an arrangement which provides, until the child attends kindergarten, she spend each alternate weekend from 2.30 pm on Friday until 9.30 am on the following Monday and from 10 am Monday until 9.30 am Wednesday on each alternate week.

11. Those arrangements continue whilst the child attends kindergarten subject to the kindergarten arrangements and there is provision in the orders that once the child attends school during school terms she spends each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday with the father and provision is made for sharing the school holidays. 

12. I have considered the material filed by the mother and also the family report of the family consultant, Ms C, which is dated 8 May 2009 which was written following upon indepth interviews with the relevant parties in this matter, including an observation of time between the father and the child.  The material before the Court is such that the arrangements proposed by the mother enable the child to continue to have a meaningful relationship with both of her parents and also make provision to protect the child from any particular harm to which she might be exposed in relation to difficulties of communication or at handovers between the parties. 

13. In relation to the other provisions of s 60CC, the family report indicates that these arrangements would appear to be arrangements which would be satisfactory to the child, although I take into account her young age and as such any views expressed by her would bear little weight. I have taken into account the nature of the relationship of the child with each of the child’s parents and in particular the fact that the child has primarily been in the care of the mother for most of her life but has also spent significant time with the father and the other people involved in each of the parents’ households.

14. I have taken into account subparagraph (3)(c) which involves 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”.  I am satisfied on the evidence before me from the mother and the orders she proposes indicate that she has such a willingness and ability notwithstanding the evidence from the mother about the difficulties in the relationship between her and the father and her concerns about his behaviour.

15. I am satisfied that there are no significant factors to be taken into account in relation to the likely effect of any change in circumstances or practical difficulty and expense of arranging for the time to be spent.  The orders provide for the cost of handover to be borne equally between the parties and, taking into account the evidence before me from the mother, that would be an appropriate arrangement to ensure that the time spent between the father and the child proceeds without the difficulties which might be encountered if handover should take place regularly other than at such places as the mother proposes. 

16. I am satisfied in relation to the factors concerned in subparagraph (3)(f) that the mother has the capacity to provide for the needs of the child including her emotional and intellectual needs. 

17. The factors in subparagraphs (3)(g) and (h) are not significantly relevant in this matter. 

18. In relation to subparagraph (i) “the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents”;  I am satisfied that the mother has on the evidence she has provided to the Court, which as an undefended matter is not in dispute, has indicated an appropriate attitude to the child and to her responsibilities as mother. 

19. Subparagraph (3)(j) relates to “any family violence involving the child or a member of the child’s family” and subparagraph (3)(k) refers to “any family violence order …” that has been made.  My attention has been drawn to the restraining order made after hearing and determination by a magistrate on the evidence then available.  I have also before me the uncontested affidavit of the mother in relation to her allegations of violent and inappropriate behaviour by the father.  I am satisfied that the arrangements proposed by the mother balance her concerns in relation to family violence and the needs of the child to continue to have a meaningful relationship with her father. 

20. It is to be hoped that the final orders being made in these proceedings will bring about circumstances in which any stress or difficulties between the parties is significantly reduced and that there should not be any further occasion of any family violence either between the parties or in presence of the child. 

21. Subsection (3)(l) is “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”.  I have indicated already to counsel that it is my view that it will be in the child’s best interests for orders to made which would discourage any further proceedings being taken in this Court or any other Court in relation to the child and allow the parties and the child to lead a life which is not subjected to unnecessary litigation.  The orders are in terms which should make that possible if the parties concentrate on providing what is best for the child rather than ongoing litigation in this or any other Court. 

22. Subparagraph (3)(m) is “any other fact or circumstance that the Court thinks is relevant”.  One of the significant factors is that the father has discontinued his proceedings and did not wish to participate in final conclusion of the trial concerning the Court’s determination of what is in the best interests of the child. 

23. Having taken into account the material that is before me therefore I am satisfied that it is in the child’s best interests that orders be made in terms of the orders proposed by the mother to which the Independent Children’s Lawyer is consenting. 

24. The Court will forward a sealed copy of the order to the father in the usual course notwithstanding the dismissal of the proceedings and that this was made by way of a default order.  That order included, as I noted, the discharge of the Independent Children’s Lawyer.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 November 2009