Sablons and Dormoy

[2009] FamCA 613

FAMILY COURT OF AUSTRALIA

SABLONS & DORMOY [2009] FamCA 613

FAMILY LAW – CHILDREN – Final parenting orders – Mother failed to appear – Case hear in absence – Child of twelve – Best interests – Supervised time

Family Law Act 1975 (Cth)

Champness & Hansen [2009] FamCAFC 96

FATHER: Mr Sablons

MOTHER: Ms Dormoy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11579 of 2007

DATE DELIVERED: 2 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 2 July, 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Ms Mansfield

SOLICITOR FOR THE FATHER: Victoria Legal Aid

COUNSEL FOR THE MOTHER: Ms Jardine

SOLICITOR FOR THE MOTHER: Peter Baker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr James

INDEPENDENT CHILDREN’S LAWYER: O’Farrell Robertson McMahon

Orders

1. That all previous parenting orders and injunctions which relate to the child R born … January, 1997 be discharged.

2. That the child live with the father. 

3. That the father and mother have equal shared parental responsibility for the child save that the father have sole parental responsibility for issues relating to the child’s health (including her psychological health) and education. 

4. That subject to the provisos contained in this order, the child spend time with the mother at the B Children’s Contact Centre (“B Centre”) on one occasion in each month, the date, time and duration of the contact to be nominated by B Centre. 

5. That the mother forthwith sign all necessary documents to enrol at B Centre and attend an intake interview or such other interview as is requested by B Centre. 

6. That if the mother fails or refuses to comply with paragraph (5) hereof by 30 October, 2009, then paragraph (4) hereof be discharged. 

7. That if the mother complies with the provisions of paragraph (5) hereof, and the child attends B Centre on a date and time nominated by B Centre, in anticipation of spending time with the mother, and the mother fails to attend B Centre on the nominated date and time, then paragraph (4) hereof be suspended until further order. 

8. That on the child turning fifteen (15), paragraph (4) hereof (if not previously discharged pursuant to these orders) be discharged.

9. That the child spend such other time with the mother as is agreed between the parties.

10. That all contact between the mother and the child, whether pursuant to paragraph (4) or paragraph (9) hereof, be conditional upon the child agreeing to spend the time with the mother. 

11. That the mother communicate with the child by telephone on each Tuesday, Thursday and Sunday, the mother to initiate such communication between 7:30 pm. and 8:00 pm., and the father shall keep the mother informed of the telephone number on which the child can be contacted by her. 

12. That the mother be restrained from consuming, using or being affected by alcohol or any illicit substance during any time or communication with the child.

13. That the report of Dr. E tendered as exhibit F-2 be indexed on the court file. 

14. That the solicitors for the father serve a sealed copy of these orders on the Department of Human Services within fourteen days of receiving such sealed copy from the registry. 

15. That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal.

16. That the reasons for judgment this day be transcribed and copies made available to the parties. 

17. That pursuant to s.62B and 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, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

18. That all extant applications be otherwise dismissed and removed from the List of matters awaiting finalisation. 

19. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES

That Ms. Jardine of counsel appeared for the mother but advised that neither she nor her instructing solicitor had been able to obtain current instructions from the mother. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11579 of 2007

MR SABLONS

Father

And

MS DORMOY

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case concerns the parenting orders that should be made for the parties’ daughter, R, who was born in January 1997.  The child’s parents are Mr Sablons (“the father”) who was born in April 1973, and Ms Dormoy (“the mother”) who was born in October 1971.  Her father lives in regional Victoria, her mother in Melbourne. 

Litigation History

1. Litigation commenced in the Bendigo Magistrates’ Court on 11 September 2006, by an application transferred to the Federal Magistrates’ Court on 15 September 2006.  The federal magistrate ordered a family report, which was prepared in January 2007;  the family consultant saw both parents and the child.

2. On 21 February 2007 final parenting orders were made by consent in the Federal Magistrates Court.  Those orders provided for the discharge of all previous parenting orders.  The parties were to have equal shared parental responsibility for the child. The child was to live with the mother and spend time with the father on alternate weekends, half of school holidays, on special days, and otherwise as agreed.  The father was also to be able to communicate with the child by telephone and by email. 

3. Each of the parties was restrained from changing the child’s school without first obtaining the written consent of the other or a court order; and restrained from consuming or being affected by alcohol or drugs within 24 hours of any period in which the child was in their care, save for prescribed medication.  Other orders provided for the parties to complete parenting courses and undertake alcohol and drug counselling.  The mother was to engage with a community family support program nominated by the independent children’s lawyer.

4. The parties were required to keep each other informed of any accident or injury suffered by the child, and provide information about her treating medical practitioners.  Each of the parents was able to access information about her education, and each was restrained from physically disciplining her, denigrating the other parent in her presence or hearing, discussing the proceedings with her or allowing anyone else to do so.

5. A copy of those orders was to be served on the child’s school and on the Department of Human Services in the rural Victoria region.  As may be apparent from that last order, the family had been the subject of departmental intervention on a number of occasions.  Before the court is a Children’s Court Clinic report of Dr E, a psychologist who saw the parents and the child on 20 May 2008.  It refers to a number of protection applications issued by DHS in relation to the child.

Siblings

1. In terms of the family constellation, R is the mother’s second child.  She has a son, J, who at the time he was seen by Dr E was 14 years and 4 months old.  That was a year ago.  At the time Dr E saw the family, the mother had a four month old child called S, obviously born in early 2008.  The evidence before this court is that the mother had another child in March 2009.  She thus has two children under two, and has a son who is about fifteen and a half, in addition to the subject child, who turned twelve in January. 

Move from mother’s care

1. The orders of 21 February 2007 provided for the child to live with the mother.  The Children’s Court report sets out the circumstances in which the child moved from the mother’s care to that of the father, after a protection application was brought in early 2008.  Reports before the Children’s Court on 21 January 2008 (the return date of the protection application) recorded that by that time R had been living with her father for three to four months, due to a domestic violence incident when living with her mother, in which R was injured.  After that incident the child stated she wanted to remain in her father’s care. 

2. At that time the mother was living with Mr P, the father of her third child, S.  He was described as the perpetrator of the domestic violence which involved the mother and R.  In the course of an assault, R had been pushed to the ground.  The mother was then six months pregnant.  Mr P had a history of violence.  When police visited his home, after the domestic violence incident, they found the house in a filthy state with rotting food on benches and garbage bags overflowing.  The child told police that she was scared to live with her mother, as a result of Mr P’s presence. 

3. Possibly as a result of departmental or police pressure, the mother sought an intervention order against Mr P but reports before the Children’s Court in January 2008 recorded that she had seen him a number of times since filing the application.  Those reports described the mother’s history of drug and alcohol abuse, of involvement with men who were emotionally and physically abusive of her, and of living a transient and unstable lifestyle.  She had a history of leaving her children with their maternal grandmother and of not returning for a number of days, failing to give any indication of where she was.

4. Reports before the court noted that the mother had used heroin and marijuana in front of R, and had displayed abusive, erratic and irrational behaviour.  R’s attendance at school had been minimal, and had decreased as the mother moved through her pregnancy.

5. In late 2007 DHS placed R with her father.  The mother’s then two other children were on a 12 month custody to Secretary order.  Reports noted that while living with the father, concerns had been expressed about R having contact with a convicted sex offender and drug dealers, and it had been reported that the father had left her at the pub where he works.  The father had made statements to workers that he would ensure those incidents would not happen again.

Parenting capacity

1. The only recent evidence of the mother’s relationship with R is contained in Dr. E’s report;  the observations on which it is based were made a year ago.  At that time R presented as a girl with a slightly negative attitude towards authority.  She was guarded in her responses.  Dr E was very complimentary about the father’s interaction with the child;  in particular, she commended the quiet and consistent way in which he dealt with her, including encouraging her to see her mother on that occasion.

2. With Dr. E the father was able to identify the emotional risks to R who clearly felt very let down by her mother’s behaviour.  He was able to realise that R was hurt by her mother’s lack of commitment and did not necessarily take at face value his daughter’s adamant statements of dislike of her mother and of not wanting to see her at all.

3. In essence, Dr E’s opinion was that the father displayed evidence of a willingness to provide sufficient nurturance for R.  He was supportive of her receiving help through counselling to develop her resilience, and supportive of her having contact with her mother.  It was noted that he, himself might require guidance in terms of helping the child develop a more positive outlook about herself.

4. Dr E reported that the mother, whilst plausible in the short term, became verbally abusive and aggressive when challenged about any aspects of the history she had given or her current arrangements.  She was unable to recognise or acknowledge her role in the poor care R had received while living with her and blamed the father for that, rather than herself and Mr P.  She had a very limited ability to reflect upon her own actions and take responsibility for her behaviour.

5. The report details the sad history of the mother’s own experience of parenting, or lack of it, and canvases potential explanations for the significantly dysfunctional set of relationships she has experienced and the significant difficulties she has had in parenting her own children.  While the court can have sympathy with a person in those circumstances, its role is not to apportion blame but to look at the way parental behaviour impacts on a child.  It is the child’s  best interests which are paramount.

Present proceedings

1. R has been living with her father now for some time. After she moved to his care, he filed an application in the Federal Magistrates Court on 3 October 2007 in which he sought that the orders of 21 February be discharged. He sought that the child live with him; that the parents have equal shared parental responsibility; that the mother be restrained by injunction from bringing R into contact with Mr P; and that the mother spend such time with the child as was agreed. He also sought, pursuant to section 91B of the Family Law Act 1975, that DHS intervene in the proceedings. On 9 November 2007 the proceedings were transferred to this court.

2. On 12 August, 2008, by which time R had been living with her father for quite some time, the matter came before Senior Registrar FitzGibbon.  Both parents were represented, as was the independent children’s lawyer and there was an appearance for DHS.  On that day, not by consent, it was ordered that, until further order, R spend time with the mother at the B Children’s Contact Centre once a month. 

3. The parties were required to do everything necessary to complete the documents for the family to use the services of B Centre.  The father filed his application within a few days.  The mother never did so.  Ten months later, contact has not commenced. 

4. On 12 August, 2008 it was ordered, by consent, that the mother have phone contact with R on Tuesday, Thursday and Sunday, with the mother to initiate those calls.  There has been some communication by phone but the mother has used that opportunity to abuse R and denigrate the father.

5. DHS agreed to provide copies of drug screens undertaken by the mother to the ICL.  The mother was required to complete urine screens as requested by the ICL, and was restrained from consuming or being affected by alcohol or illicit substances during the time she spent with R. There is no evidence of compliance.

6. The applications for final orders were referred to the list of cases awaiting allocation to a judicial docket, which meant allocation for trial.  On 11 June they came before Registrar Field for the giving of trial directions.  Again, the parties were represented.  Registrar Field ordered that all extant applications be fixed for final hearing before me today.  On or before 26 June each of the parties was to file and serve an affidavit setting out the evidence in-chief in support of the issue which required judicial determination, which by that time had become whether the mother should see R at B Centre in regional Victoria or whether that should be in Melbourne.  The parties had agreed on a number of other orders.  The applicant was to pay the trial fee, or obtain a waiver by 26 June.

7. By 26 June no affidavits had been filed.  At my direction, inquiries were made of the parties’ solicitors.  The court was informed that it was anticipated that minutes of consent orders would be put before the court today;  on that basis and in order to save money, trial evidence was not being prepared.  That was a sensible decision.

8. On 22 June the solicitor for the mother wrote to Victoria Legal Aid, who acted for the father, confirming that on 11 June the parties had reached agreement on everything other than the question of the location of the supervised contact centre.  He noted that following that hearing VLA (which was also funding the mother) had advised it would not fund a contest on the issue and :

   “Therefore, my client has conceded that she would agree for supervised contact to occur [in regional Victoria].”

   The mother’s solicitor sought that final minutes be prepared in accordance with the wider agreement made at court on 11 June, and be forwarded to his office for his client’s signature. 

9. There may have been further communications between the respective solicitors in this matter, but on 1 July, in the absence of a signed consent from the mother, the father’s solicitors advised they would be seeking undefended orders in the terms of the prepared minutes.

10. Today Ms Jardine of counsel appears for the mother, as she has on previous occasions.  She is familiar with the case.  Ms. Jardine has advised that her instructor has been unable to obtain any instructions from the mother.  Her own attempts to do so have been equally unsuccessful.  She appears without any instructions as a courtesy to the court and, indeed, as a courtesy to the mother.  Her instructor is still on the record.  She has advanced arguments in support of her client’s interests, as instructed previously, but can do no more than that.

11. This litigation has been on foot since 3 October 2007.  R is twelve and a half.  The report before the Children’s Court illustrates the impact of the litigation on her.  I am satisfied I should proceed on the evidence before the court, despite the mother’s absence. 

Legal Principles

1. Two principles are of vital importance when considering where the best interests of children lie.  The first is the importance to children of having a meaningful relationship, insofar as it is possible, with both parents and with other people of significance to them.  The second is the importance of protecting children against violence and abuse.  It is the child’s best interests which are paramount, not the wishes or desires of parents.

Relationship with siblings

1. R has a number of siblings.  When with Dr E she had little interest in S, which is unsurprising, as S was then tiny and when R moved into her father’s care, S had not been born.  R has had no opportunity to have anything to do with the mother’s most recent child, who is only a few months old.  Dr. E said she seemed to have little interest in or relationship with her brother J.   That may be explained by the fact that J lived with the maternal grandmother for a lot of his life and, indeed, both J and S have been subject to custody to Secretary orders by the Children’s Court.  So it could not be said that R has ever felt herself to be part of a stable family unit.

Relationship with father

1. The court can find R has a good relationship with her father.  He has been able to fulfil her needs, having, it seems, transcended his own earlier problems with alcohol and drug abuse.  He conceded earlier violence and, indeed, there is evidence of him being charged with violence when the parties were together in Tasmania.  There is reference to that in the family report prepared for the earlier round of proceedings.  That is a significant matter.  However, there is no evidence DHS was concerned about that aspect of his behaviour at the time the protection application was brought last year.

Relationship with mother

1. It is also clear that prior to moving from living with her mother and Mr P, to living with her father, R’s circumstances were dreadful.  Her mother’s life was dysfunctional and the quality of care available to R was minimal.  Significant violence was directed at her or at her mother in her presence and her school attendance was erratic.

2. In the course of writing her report Dr. E spoke to a number of agencies involved with the mother and R.  She had contact with the welfare co-ordinator at a Primary School in a suburb of Melbourne, with the lawyers for the parties, with the mother’s case manager at the Royal Women’s Hospital, with Hanover Family Services, and with a psychologist in the alcohol and drug centre at the Royal Women’s Hospital. 

1. The court cannot find a strong and healthy relationship exists between R and her mother.  The mother has not seen her for months and never sought to implement the orders for time at B Centre. 

2. It seems that the maternal grandmother, who clearly provided a lot of support to the mother, died in or about October 2008.  R – this is an assertion from the bar table – was at her funeral but she has not seen her mother since.  There has been some phone contact but phone contact has been problematic in the past, as is apparent from Dr E’s report. 

3. There is no question that it would be to R’s advantage to have a meaningful relationship with her mother. She does not do so at the moment.  Responsibility for that cannot be laid at R’s door and cannot be laid at the father’s door.  The court must do what it can to foster that relationship but it must also do what it can to protect R from emotional and physical abuse.

Protection from abuse

1. Dr E’s description of the mother’s demeanour, and of her swift descent into aggression and anger when challenged, is consistent with R’s account of the abuse to which she was subjected, even during phone calls while living with her father.  The need to protect R has to take priority over the maintenance or improvement of her relationship with her mother.  The court frequently hears evidence of the risks to girls of R’s age who develop negative attitudes towards authority, have difficulty with social interactions and experience disrupted family relationships and abusive interactions, particularly if coupled with problems with school attendance.  Such children are at significant risk of psychological harm and of actual physical harm, that harm can resonate through their adult lives and their adult relationships.  It is the court’s duty to look to R’s protection.

The child’s views

1. The only evidence of R’s views is that contained in Dr E’s report, but her residence has not been in issue for some time.  The child wants to stay living where she is.  R’s expressed view of not wanting to have anything to do with her mother and not wanting to talk to her is probably indicative of her hurt and of her need to protect herself, rather than a central emotional position.  However, at her age her views have to be given real, not notional, weight.  I am satisfied that any orders providing for R to spend time with her mother should be conditional on R’s agreement.  Anything else is likely to be unproductive and potentially abusive. 

Supervision at B Centre

1. Having regard to the mother’s lack of involvement with B Centre pursuant to the orders of 11 June, the efficacy of the order now sought by the father needs to be considered.  In evidence is a copy of the father’s application to use B Centre, provided on 22 August, only ten days after the orders were made requiring the parties to do that.  There is no evidence the mother ever filed an application to use the service.  The service has thus not been in a position to determine whether to accept the family, and there has been no formal contact since then.

2. The mother would have had a new baby at that time, and she must have fallen pregnant soon after.  That, no doubt, had the capacity to impact on her capacity to travel but there is no explanation as to why she failed even to post an application form. 

3. At my request, inquiries have been made of B Centre, which – unusually and flexibly – accepts children up to fifteen.  That means that were the mother to apply to use the service, be accepted and attend, she could see R there.  If R and the mother attend, B Centre will do what they can to further and foster that relationship.

Indigenous issues

1. The evidence suggests that the father is Indigenous.  There is reference to that in the 2007 family report and there is also reference to R being of Aboriginal or Torres Strait Island heritage in the Children’s Court Clinic report.  The court must take account of that.  Orders proposed would provide for R to live with her Indigenous father and thus have the capacity to experience her cultural heritage.  In 2007, the father rejected an offer to have an Indigenous advocate involved in the case, but I can say nothing further than that.

Parental responsibility

1. The court expressed concerns about the potential for problems to arise if the parties retain equal shared parental responsibility for R. The father has been exercising responsibility for her schooling and, I can find on the evidence, doing that much more successfully than the mother ever did.  He has also been making decisions about her health and has obtained necessary counselling for her.

2. Notwithstanding the mother’s failure to appear today and that she did not know that any variation to the order for equal shared parental responsibility was on the cards, I am satisfied the court should give effect to the reality, which is that the father has sole responsibility for matters relating to R’s education and health.  I have considered whether I should give the mother a period in which to put submissions forward as to the father having sole parental responsibility.  It is not an order the father sought when he filed his application and it was not sought in the minute of consent orders which the parties had planned to put before the court.  It is unlikely the mother would respond to any opportunity to file a submission, given her lack of connection with the proceedings to date, and her failure to act proactively to see R.

Conclusion

1. I am satisfied that the best interests of R will be met by discharging all existing parenting orders and injunctions.  In lieu, orders will provide for R to live with her father.  Her parents will retain equal shared parental responsibility but the father will be solely responsible for issues relating to her education and health. 

2. To the extent necessary, I find it would not be in the interests of R for her to spend equal time with both parents and it would not be in her best interests to spend substantial time with her mother.

3. Orders will provide for the mother to spend time with R at the B Children’s Contact Centre in regional Victoria, once a month, subject to a number of conditions.  First, the order will be discharged when R turns fifteen.  Second, it will be conditional on R’s agreement.  Third, if the mother does not file all necessary intake documents and attend any intake interview required by 30 October 2009, the order will be discharged.  Fourth, if the mother applies and the family is accepted, an appointment is made, R attends and the mother fails to arrive, the order will be suspended until further order.  It could not be in R’s best interests to have her hopes dashed in that manner.

4. I am mindful that long term supervision can be problematic.  What is proposed is not indefinite and the contact service has confirmed its capacity to undertake the role.  The orders will provide for other time by agreement, which provides a “mechanism for moving forward”, as endorsed by the Full Court in Champness & Hansen (2009) FamCAFC 96 at paragraph 219. For example, R might be able to spend time with her mother in the presence of another adult, a family member, or a reliable friend. With more maturity, she might feel confident in spending some limited time alone with her mother, perhaps in a public place.

5. I will order, as proposed, that the mother communicate by phone each Tuesday, Thursday and Sunday between 7.30 and 8 pm, the mother to initiate that communication. 

6. The mother will be restrained from consuming, or using, or being affected by, alcohol or illicit substances during her time or communication with R.  I make that order more in hope than in confidence.  

7. All applications will be otherwise dismissed.  The ICL will be discharged one month from today or, if a notice of appeal is filed, on determination of the appeal.  I will certify for counsel.  I will direct that Dr E’s report, which is exhibit F2, be indexed on the court file.  As a court document it will be available to anyone who searches the file.

8. I will order service of a sealed copy of the orders on the Department of Human Services. 

I certify that the preceding
53  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.