S and S
[2007] FMCAfam 942
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2007] FMCAfam 942 |
| FAMILY LAW – Sole parental responsibility. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA |
| Applicant: | S |
| Respondent: | S |
| File Number: | SYM 460 of 2003 |
| Judgment of: | Altobelli FM |
| Hearing date: | 13 July 2007 |
| Date of Last Submission: | 13 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
| Applicant: | Self represented |
| Respondent: | No appearance |
| Solicitor Advocate for the Independent Children’s Lawyer | Ms Mowbray |
ORDERS
The Mother have sole parental responsibility for the Children H born 26 August 1996 and J born 13 September 2000.
The Children live with the Mother.
If the Father chooses to be known to the Children and applies to the Court for this purpose, written evidence from a qualified psychologist that the Father has been treated on a fortnightly basis for a period of no less than four months must be provided before he resumes spending time with the Children.
Upon providing the evidence required under Order 3 above, and conditional upon the Father continuing to undertake regular treatment with a registered psychologist as directed by said psychologist, the Father shall resume spending time with the Children on the following basis:
(a)Three hours per week for a period of eight weeks; then
(b)Eight hours each alternate week for a further period of eight weeks; then
(c)From 10.00am on Saturdays to 6.00pm on Sundays each alternate week for a further period of one calendar year; then
(d)From 5.00 pm on Fridays to 5.00pm on Sundays thereafter.
Order 4 is conditional upon the Father continuing to take all medication including anti-depressants as prescribed by his treating physician.
On completion of the period in Order 4(c). above, a report is to be prepared by the Father’s treating psychologist as to the Father’s attendance, progress and recommendations in relation to continued treatment and a written commitment by the Father to continue treatment if that is the recommendation of the treating psychologist.
If Order 3 comes into operation, the parties must within 14 days contact UNIFAM on (02) 9891 1628 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
The parties must attend the appointment at any reasonable location nominated by UNIFAM and complete the assessment.
If assessed as suitable and UNIFAM nominates counselling, mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
UNIFAM to notify the court no later than 48 hours prior to the adjourned date whether or not the parties have completed the assessment and the parties’ progress generally.
Both parties to share equally the costs of the program.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 460 of 2003
| MS S |
Applicant
And
| KSNETH S |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This matter relates to H, born 26 August 1996 and J, born 13 September 2000 who are the children of LS and KS. The parents married in the United States in 1991, moved to Australia in 1993 and separated in 2002. The children have not seen their father since April 2006.
There is a long history of proceedings between the parties that is outlined below. The father has participated in proceedings on an intermittent basis. The application before me was the mother’s application filed 26 March 2006, which seeks to vary consent orders entered into on 16 June 2004. The matter was heard and determined on an undefended basis on 13 July 2007. On that date the Court attempted to contact the father by telephone, which was unsuccessful. At the hearing the mother was self represented and Ms Mowbray was the Independent Children’s Lawyer. The mother relied on her affidavits filed 8 February 2007 and 24 March 2006 as well as the affidavit of Dr Rudd filed 24 March 2006. There was no response filed. The orders sought by the mother were set out in a document which became Exhibit A.
The extensive history of this matter is outlined below briefly:
·Final orders were made by consent on 16 June 2004 providing for the two children to live with the mother and spend supervised time with the father, progressing to unsupervised time. The orders contained a condition that the father could only spend time with the children if he undertook counselling with a registered psychologist, until such time that the practitioner certified treatment was no longer required.
·The father filed an application for contravention on 19 January 2006 alleging the mother failed to make the children available on 4 September 2005, 17 September 2005 and 24 September 2005.
·On 1 March 2006 the matter came before Federal Magistrate Sexton and the contravention application was withdrawn and dismissed. Orders were made which suspended and discharged parts of the consent orders of 16 June 2004. The Orders provided for the father to spend time with the children on an unsupervised basis for three hours on a Sunday providing he attend upon a registered psychologist on a fortnightly basis and took all medication as directed.
·The father did not comply with the Orders, and has not seen the children since April 2006.
·On 24 March 2006 the mother filed an application to vary the consent orders made on 16 June 2004.
·The matter came back before the Court on 18 May 2006 and 13 June 2006 and 17 July 2006 and 5 September 2006, with various procedural orders made directing the Father to file material and appointing an Independent Children’s Lawyer. The father appeared on 18 May 2006, and 13 June 2006 but not on 17 July 2006 or 5 September 2006. Whilst the Orders note that the Independent Children’s Lawyer was attempting to liaise with the parents in Order to draft terms of settlement, the father failed to comply with directions relating filing material or attending UNIFAM.
·On 21 December 2006 Federal Magistrate Sexton made interim orders and delivered reasons for those orders and adjourned the matter to final hearing in Wollongong, which is how the matter came into my docket. On that date the mother and father appeared, both self represented, as did Ms Mowbray the Independent Children’s lawyer. Orders were made by Federal Magistrate Sexton for the children to spend supervised time with the Father at Kirawee Supervised Contact Service for three hours each Saturday for three consecutive periods, followed by a gradually increasing amount of time if the father complied with the Orders and attended upon his General Practitioner fortnightly and obtained a referral to a psychologist or counsellor and attended upon them. Further orders in relation to directions, the appointment of an expert, and attendance at UNIFAM were also made.
·The father failed to attend upon Kirrawee and therefore those orders were not put in place, and the father has not participated in proceedings since that date.
·On 19 January 2007 the matter was listed for mention and the father did not appear. An Order was made permitting the mother to travel overseas with the children between 9 February 2007 and 6 March 2007.
·On 21 February the matter was listed for mention and was adjourned by consent to 19 March 2007.
·On 19 March 2007, the matter was listed for mention and the father did not appear. On that date the matter was then listed for mention or undefended hearing on 20 June, with the Independent Children’s Lawyer directed to notify the father of the orders, and the consequences of non- attendance at the hearing. An order was also made directing the father to attend on Dr Rikard bell at the earliest date possible for the purpose of completing an updated expert’s report.
·On 20 June 2007 the matter was listed for mention and the father did not appear. The matter was then listed for mention or undefended hearing on 13 July 2007, with the Independent Children’s Lawyer directed to notify the father of the orders, and the consequences of non- attendance at the hearing.
·The matter was heard and determined on an undefended basis on 13 July 2007 by me.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring 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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taKS to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weeKSds and holidays; and
(ii) days that do not fall on weeKSds or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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.
Expert’s Report
Dr Rikard-Bell has prepared an initial and updating report in this matter. The first was prepared on 24 May 2004. For the purposes of that report Dr Rikard-Bell conducted interviews with both parents and with the children. His recommendations were based on time increasing progressively from supervised to unsupervised, and also recommending the father continue to attend counselling.
The updating report was prepared for the purpose of these proceedings, but the father did not attend interview for the purpose of the second report.
Dr Rikard Bell conducted interviews with J, H and MS on 22 January 2007. Dr Rikard Bell’s report recorded:
MS and the two children I believe have a close loving relationship. The children are developing well in her care. MS appears to be protective of the children but I believe in an appropriate way. She’s tried to be balanced by encouraging the children to remain connected with KS’s extended family and also to keep in contact with him by telephone. Her stipulation has been that the father continues to attend counselling for his anger and aggression in order to ensure a sense of protection of the children. She was willing to contemplate unsupervised contact should the father continue with anger management and counselling.
I concluded previously that KS was rather emotionally immature and had impulse problems but I do not believe that he had an anti social personality disorder. I saw his personality style more in terms of immaturity and impulsive traits. Unfortunately, his counselling with Marilyn Rudd became problematic and she reported being uncomfortable being exposed to his anger herself. I previously didn’t find that their was any psychiatric illness specifically.
As I said in my previous report I felt that contact should be restricted between the children and the father because of his impulsivity and the anger issues, but that it was important for the children to continue to have a relationship with him. Gradually this relationship would grow and develop. I was impressed that MS was supportive of the process and it is disappointing for the children that the father hasn’t co-operated.
The report makes the following recommendations:
1. In the current situation I would recommend that at least some recognition contact occur between the children and the father. The children can have telephone contact monthly and perhaps see their father once every three months. If some form of contact is maintained, perhaps four times per year, then this facilitates keeping the relationship between the father and the children alive. I believe that the mother remains open to the concept of the father being part of the children’s lives as long as he is able to engage in some sort of treatment I would strongly support this approach. ..
2. I would revert to my previous recommendations if KS does re-engage in the counselling process then I would recommend that some graduated supervised contact gradually become unsupervised.
3. I recommend that neither parent denigrate the other parent in front of the children.
FROM FIRST REPORT:
KS appeared rather child like and in some ways I believe had become reliant on MS. When MS withdrew her support he became engaged and unable to cope. I did not form the view that he had a habitual pattern of violence. Violence appeared to be in relation to frustration and lack of skills in dealing with emotional conflict. Obviously these skills are important in a marital relationship and when dealing with children. He however does not have a history of conduct disorder and anti-social problems suggestive of an anti-social personality disorder. It appears to have a more avoidant and impulsive personality traits. I formed the view that he cared a great deal about the children. I was also impressed by his frankness and honesty. I note he has undergone some counselling with Marilyn Rudd and also anger management. These are obviously a good step in the right direction although it would be naïve to believe that a lack of anger management skills could be treated in a single course of counselling.
I do not believe that KS has a psychiatric illness such as bipolar disorder or chronic pychosis. His psychological problems are more in the realm of personality factors such as coping skills, dependency and impulsivity.
Application of the law to this case
This is a sad case where a father who potentially has much to offer his children has chosen to absent himself and not participate in the proceedings. The expert evidence indicates he suffers from emotional and anger management issues which could probably be controlled with professional assistance. The children would like to spend time with their father. The mother prefers this too, if it can be done in a safe environment and with assurance that the father is receiving treatment from his psychologist.
There is no question that the children should live with the mother and the evidence indicates they are thriving in her care.
Under the circumstances an order for sole parental responsibility is in the children’s best interests. Having regard to the concern about the father’s well-being and his absence, the mother must have the autonomy to make any decisions. I doubt very much that she would use this inappropriately.
Having regard to all of those matters, the orders made by me on 13 July 2007 are in the children’s best interests.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 19 November 2007
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