RYAN & RAMAKERS
[2020] FCCA 314
•20 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RYAN & RAMAKERS | [2020] FCCA 314 |
| Catchwords: FAMILY LAW – Undefended hearing – order for no time with father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 61DA, 60CG |
| Cases cited: Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MS RYAN |
| Respondent: | MR RAMAKERS |
| File Number: | PAC 5591 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 24 October 2019 |
| Date of Last Submission: | 24 October 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 20 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gonzalez |
| Solicitors for the Applicant: | Gonzalez & Co |
| Counsel for the Respondent: | No appearance |
| Appearing for the Independent Children's Lawyer: | Ms Newland |
| Solicitors for the Independent Children's Lawyer: | JLM Family Lawyers Pty Ltd |
ORDERS
The mother shall have sole parental responsibility for the children [W] born on … 2008, [Y] born on … 2010, [X] born on … 2014 and [Y] born on … 2016.
The children shall live with the mother.
The children shall spend no time with the father.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Ryan & Ramakers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5591 of 2016
| MS RYAN |
Applicant
And
| MR RAMAKERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to four children:
a)[W] born … 2008;
b)[Y] born … 2010;
c)[X] born … 2014; and
d)[Y] born … 2016.
The parties to the proceedings are the applicant mother Ms Ryan and the respondent father Mr Ramakers.
On 18 September 2019 the Court made orders by consent between the mother and the Independent Children’s Lawyer that:
a)The mother serve upon the father a copy of the Amended Initiating Application filed 18 September 2019[1] and the mother’s affidavit filed 22 August 2019 within 14 days;
b)The father file any response and affidavit upon which he seeks to rely within 28 days from the date of service of the above documents;
c)In the event that the father does not file a response and affidavit the Court would deal with the matter on the material filed in Chambers and issue reasons in due course; and
d)The mother file an Affidavit of Service confirming she had served the father with the above documents within 7 days.
[1] The Amended Initiating Application was in fact filed in the Registry on 22 August 2019
The mother filed an Affidavit of Service on 4 October 2019 confirming the father had been served with the Amended Initiating Application and Affidavit filed on 22 August 2019.
To date the father has not filed a response to the mother’s Amended Initiating Application or an affidavit. Accordingly, the Court is proceeding to hear this matter in chambers on the material filed.
Documents relied upon
The mother relies upon the following documents:
a)Amended Initiating Application filed 22 August 2019; and
b)Affidavit of Ms Ryan filed 22 August 2019.
The Court has considered the father’s documents filed in these proceedings being:
a)Response filed 15 June 2017;
b)Affidavit of Mr Ramakers filed 15June 2017; and
c)Notice of Risk filed 15 June 2017.
As noted above, the father has not complied with filing directions of this Court made on 18 September 2019 directing him to file a Response and affidavit to the mother’s Amended Initiating Application.
Orders sought
The mother seeks the following final orders as contained in the Amended Initiating Application filed 22 August 2019:
a)The mother have sole parental responsibility for the four children;
b)The children live with the mother; and
c)The children spend no time with the father.
The father, in his response filed 15 June 2017 seeks orders for the parents to have equal shared parental responsibility, the children to live with the mother and to spend time with the father each alternate weekend and during school holidays.
The Independent Children’s Lawyer seeks orders[2] that the mother have sole parental responsibility, the children live with the mother and that the children spend time with and communicate with the father at the mother’s discretion.
[2] Contained in the Independent Children’s Lawyers Case Outline filed 12 September 2019
Short Chronology
The mother was born on … 1985.
The father was born on … 1987.
The parties commenced a relationship in 2004.
The child [W] was born on … 2008.
The child [Y] was born on … 2010.
The child [X] was born on … 2014.
The child [Y] was born on … 2016.
The father’s child to another partner was born on … 2016.
The mother filed an Initiating Application on 29 November 2016.
The father filed a Response on 15 June 2017.
The mother asserts the parties separated in 2012 however the father asserts that the parties separated in 2016.
On 22 September 2017 the parties and the children attended a Child Inclusive Conference with a Family Consultant.
On 27 March 2018 the Court made interim orders by consent for the children to live with the mother and to spend two hours each alternate Sunday with the father supervised by the maternal grandmother until Town A Children’s Contact Service became available.
On 10 October 2018 the parties attended Family Dispute Resolution however an agreement was not reached.
On 15 May 2018 the father’s solicitor was granted leave to withdraw from the proceedings with no appearance by the father on that date. The Court listed the matter for final undefended hearing on 18 September 2019.
The father has not filed a Notice of Address for Service and was, on the mother’s evidence, in custody at the Correctional Centre B as at the date of hearing.
On 18 September 2019, the Court made orders as outlined above.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a children’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[3]
[3] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect a children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[4] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[5]
[4] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[5] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[6]. The Court may include[7] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[6] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[7] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[8]
[8] MRR v GR [2010] HCA 4 at [15]
Family Violence and Risk of Harm
The mother has been the primary carer of the four children their entire lives. The father has very limited time with the children and any time that he has had with the children [W] and [Y] has been supervised by either the mother or the paternal grandmother.
The father is a chronic user of illicit substances and alcohol. On his own evidence he has attended the “drug court program” and returned to using drugs again for a number of years following a period of abstinence.
The child [W] told the family consultant during the Child Inclusive Conference on 22 September 2017 that he saw the father using cannabis, which he described as looking like dried herbs and that the father smoked this in a bottle. [W] also disclosed that the father does burnouts in the car and that when he is in the car with the father, he does not wear a seatbelt except when they see the police.
The mother gives evidence that the father has threatened to commit suicide on at least two occasions by posting messages to her on Facebook and via text messages with photographs including a photo of the father “with cable ties around his neck that are pulled tightly and another of Mr Ramakers with a rope around his neck”[9]
[9] Annexure D to the mother’s affidavit filed 22 August 2019
The mother’s evidence is that from very early on in the parties’ relationship the father perpetrated family violence towards the mother and that such violence continued throughout the parties’ relationship including physical, verbal and emotional abuse and at times in the presence of the children.
The father has threatened to burn the mother’s house down which resulted in a final Apprehended Domestic Violence Order in 2016 for two years listing the mother and the children as those in need of protection.
The father had been incarcerated and under house arrest during the parties’ relationship[10]. At the time of hearing the father was incarcerated, it appears, for driving offences. The father will not be able to hold a driver’s licence until 2030.
[10] Driving whilst disqualified and similar offences (see father’s affidavit)
Court’s Determination
The children do not have a meaningful relationship with the father. They have spent very limited time with the father since birth, and the time which the children have spent with the father has been supervised. The mother on the other hand has been the children’s primary carer and has been solely responsible for the children’s physical, emotional and financial wellbeing. She is also the parent who has been responsible for any long-term decisions regarding the children.
The risks to the children, particularly with respect to the father’s unknown mental health status, his chronic illicit drug use and alcohol abuse, and his history of imprisonment, are in the Court’s view, significant, real and unacceptable.
The Court is not satisfied that those risks can be ameliorated in a way which would on balance see the children benefiting from a meaningful relationship with the father while protecting them from harm in a way required by s60CC(2) of the Act. This is particularly so given the lack of evidence as to how the father proposes to develop a relationship with the children, least of all a meaningful relationship.
Furthermore, the father’s lack of engagement with his parenting responsibilities to date and his lack of engagement in these proceedings overall are strong indicators of his lack of capacity to put the children’s needs above his own and his lack of capacity to meet the children’s needs.
The lack of relationship the children have with the father would no doubt result in significant stress and pressure on them if they were to spend time with him. Such an outcome would not be in the children’s best interest. An order for long-term supervision might only be beneficial to the children if it was for a particular purpose of either developing a relationship with the children and the father or perhaps alternatively for the purpose of identification. The father does not propose any supervision, indeed, he only proposes unsupervised time which is significant and substantial. This is not a proposal which is in the children’s best interest given the risks which have been identified, the lack of capacity by the father to meet the children’s needs and the children’s lack of any meaningful relationship with the father.
The mother has the capacity to act protectively and has done so in the past, whilst at the same time promoting a relationship between the children and the father. However, the mother should not be put to burden of having to decide when and if the father is capable of spending time with the children without putting them at risk. It is likely that if an order is made for the children to spend time with the father as agreed or similar, that there will then be undue pressure by the father put on the mother to agree to such time occurring. The father has, in the past, made serious threats to the mother, which would likely continue if an order such as the one proposed by the Independent Children’s Lawyer was to be made. The Court needs to ensure that its orders do not expose the mother to an unacceptable risk of family violence.
The Court is satisfied that the presumption of equal shared parental responsibility has been rebutted on the basis that there are reasonable grounds to be believe, being the mother’s evidence, that the father has engaged in family violence. It is also in the children’s best interest that their primary carer and the person with whom they will live pursuant to these orders has the capacity to make long-term decisions unhindered.
Conclusion
For all of these reasons orders as set out at the forefront of these Reasons for Judgment are made and are in the child’s best interests.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 20 February 2020
Key Legal Topics
Areas of Law
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Family Law
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