Saleh and Hamad

[2007] FamCA 316

FAMILY COURT OF AUSTRALIA

SALEH & HAMAD [2007] FamCA 316

FAMILY LAW - CHILDREN - ORDERS - Discharge of orders

APPLICANT: Mr Saleh

RESPONDENT: Ms Hamad

INDEPENDENT CHILDREN’S LAWYER: Harman & Co

FILE NUMBER: PAF 1706 of 2005

DATE DELIVERED: 12 April 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 4 April 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The Applicant Father appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appeared on her own behalf

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Joe Harman, Harman & Co

Orders

1. That all prior parenting orders with respect to the children of the relationship:

   a son born in October 2000, and

   a daughter born in October 2001

   be discharged.

2. That all outstanding applications by either party be dismissed.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF  1706 of 2005

Mr Saleh

Applicant

And

Ms Hamad

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. The parties are the parents of 2 children:

   A son born in October 2000 (6) and

   A daughter born in October 2001 (5)

   This litigation with regard to parenting arrangements for the children commenced by way of the Application filed by the mother in the Local Court at P on 31 May 2005.  She sought orders to the effect that the children live with her and spend time with their father each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday.  The father filed an Application in the Federal Magistrates Court at Parramatta on 2 June 2005.  He sought orders to the effect that the children live with him and spend time with their mother on alternate weekends, during half of all school holidays and on special occasions.  The mother’s Application was transferred to the Federal Magistrates Court and the two sets of proceedings were consolidated. 

2. On 1 July 2005 an order was made pursuant to section 65L that the children be independently represented in these proceedings.  Fortunately for me, I have had the invaluable assistance of Mr Harman, solicitor, who fulfilled this role.

3. On 12 August 2005 the first of a series of interim orders were made, by consent, to provide for the children and their father to spend time together.  These orders provided that the children be in the care of their father from 10:00am until 1:00pm each Saturday for a period of 4 weeks and, thereafter, from 9:00am until 5:00pm each Saturday.  These arrangements soon broke down and further interim orders were made by consent on 18 October 2005.  Under this regime, the children were to be in the care of their father from 9:15am until 4:30pm each Saturday, with changeovers to take place at the C Contact Centre or G Police Station.  These arrangements also broke down after a short time. 

4. The proceedings entered the Children’s Cases Program on 9 December 2005, when a list of issues for determination was agreed as follows: 

   1.Does the mother currently suffer from any mental health condition and if so does that condition impact on her capacity to provide for the children’s need?

   2.        Has either of the parties perpetrated violence against the other?

   3.Have the children been exposed to violence between the parents and if so what has been the impact on their emotional stability?

   4.Does the father suffer from any drug and/or alcohol problem and if so the impact on the father’s capacity to provide for the children’s need?

   5.To what extent does each parent have the capacity to support and foster the children’s relationship with the other parent?

   Because an issue was raised as to the mother’s psychiatric state, the Independent Children’s Lawyer proposed that a report be prepared by consultant psychiatrist Dr W.  I made the necessary orders and it was my intention that further consideration be given to the matter when this report became available.

5. Appointments were made for the mother and the children to attend upon Dr W on 13 March 2006, 20 June 2006 and 24 July 2006.  The mother failed to attend any of these appointments.  Dr W interviewed the father on 20 June 2006 and prepared a report dated 27 July 2006.  Due to the mother’s lack of cooperation, Dr W’s report could not address the defined issues or otherwise provide assistance to me.

6. The Independent Children’s Lawyer caused the matter to be relisted on 2 May 2006, after both parties failed to attend their appointments with Dr W.  Both of their lawyers filed a Notice of Ceasing to Act around this time and the mother informed Mr Harman that she was not willing to attend court.  I made an order on 2 May 2006 that she appear personally at court on 26 May 2006.  At my invitation, the Independent Children’s Lawyer informed the mother in writing that there was a serious risk that the children may be removed from her care if she failed to appear on the next occasion.

7. On 26 May 2006 both the parents appeared in person.  Further interim orders were made by consent, to the effect that the children live with their father each weekend from 5:00pm on Friday until 5:00pm on Sunday and during the first half of all school holidays.  I made further orders which required each of the parties to attend upon fresh appointments with Dr W.

8. On 14 June 2006 the mother informed the Independent Children’s Lawyer that she would not comply with the orders made on 26 May 2006.  On Mr Harman’s application the matter was relisted on 22 June 2006, when the mother  failed to appear or offer any explanation for her absence.  I ordered a Family Report on this occasion, in the hope that the mother may find it easier to transport the children to Parramatta rather than to Dr W’s office in the Eastern Suburbs. 

9. The mother failed to attend the interviews with the Family Consultant, Mr O, and did not comply with the interim orders for the children to spend time with their father.  On the application of the Independent Children’s Lawyers, the matter was relisted on 17 November 2006, when neither party appeared.  The father gave an explanation for his absence, which related to his state of health. Mr Harman informed me that the mother had contacted him and indicated that she had no intention of attending court.    

10. On the application of the Independent Children’s Lawyer, the proceedings were relisted on 28 March 2007, when the father appeared in person.  Mr Harman informed me that the mother had contacted him and said that “she had no regard for rules and would not attend court”.  The father advised me that he wished to withdraw his application for orders that the children live with him.  I directed that he discuss this decision with the duty solicitor before he actually took the drastic step of withdrawing his application. 

11. Having conferred with the duty solicitor, the father elected not to withdraw his application for residence and insisted that I determine the proceedings that day.  I directed that he file an affidavit in support of his case but he declined to do so.

12. I arranged to have the matter listed for an undefended hearing on 4 April 2007.  The father said that he wished to go to Melbourne that day but, ultimately, decided that he would attend court.  On his application, I made an interim order restraining the mother from changing the children’s address.

13. Ultimately, both parties attended court on 4 April 2007.  They had filed no recent affidavits and the utility of the reports from Dr W and Mr O was compromised by the mother’s lack of cooperation.  Nonetheless, I decided that the matter should proceed to finality and, with the invaluable assistance of Mr Harman, this object was achieved.

BACKGROUND

1. The father, who is 38, and the mother, who is 27, began to live together in January 2000 and married in March 2001.  They separated in May 2005, when the mother and the children went to live in a refuge. 

2. I have referred already to the series of interim orders which provided for the children to spend time with their father.  None of these arrangements have operated successfully.  Having observed the parents giving evidence on 4 April 2007, I came to understand why all of these arrangements broke down.  It was obvious that they are both absorbed with their own adult issues and are unable and/or unwilling to focus on the interests of their children. 

3. The father last saw the children in November 2006, when he attended the mother’s home.  It seems that his parents visited the children at their mother’s house quite frequently during 2006.  Around Christmas, however, there was an argument about the father’s wish to take the children to the home of his girlfriend.  He has not seen the children since November 2006, although his parents seem to have continued to visit them at the home of their mother.

4. The mother has a history of depression and has been admitted to hospital on more than one occasion after attempts at self-harm.  Exhibit 6, which is the file of N Hospital, shows that she was admitted on 16 July 2004, 16 October 2004 and 13 February 2005 after having taken overdoses of medication.  It seems that she was diagnosed with depression and that medication was prescribed at some stage.  It appears that the mother stopped taking antidepressant medication without professional advice approximately 2 years ago. 

5. The father is in receipt of workers compensation payments of $1,200 gross per fortnight.  Apparently he suffered a neck injury at work and has no prospect of returning to paid employment.

APPROACH TO THESE PROCEEDINGS

1. The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.

2. In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration:  section 60CA.  In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).

3. Section 60CC(2) contains 2 ‘primary considerations’ which apply to the determination of what is in a child’s best interests.  The first consideration is the benefit to a child of having a meaningful relationship with both parents.  The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.  Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.

4. Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.  In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child.  It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.

5. Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.  This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.

6. It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1).  The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).

7. Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order.  This  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 child abuse or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility:  section 61DA(4).

8. It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent.  The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.

9. If an order provides that 2 or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached.  These decisions are to be made jointly by the persons who share parental responsibility for the child.  Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision.  It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues:  section 65DAE.

10. If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent.  If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent:  section 65DAA.

11. In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration:  section 60CA.  The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

THE PROPOSALS OF THE PARTIES

1. The unsatisfactory state of the evidence makes it difficult to identify the specifics of the proposals of either party.  It is reasonable to observe that both parties adopted a very cavalier attitude to the proceedings.

The Proposals of the mother

1. The mother has lived in rented accommodation at C for approximately 16 months.  Presumably, she will continue to do so.The children attend B Public School at C.  Presumably, the mother proposes that they will continue to do so.

2. The mother would limit the children’s time with their father to Saturdays only.  She advanced no convincing reason for this drastic limitation on the children’s time with their father.  In fact, her basis for this proposal seemed to be entirely self-focussed and oblivious to the emotional needs of the children.

The Proposals of the father

1. The father proposed that the children live with him at the parents’ home at S.  The residence is occupied also by the foster children of the father’s parents and an adult woman, who is a family friend.  The mother raised an issue as to whether the father in fact lives with his girlfriend.  The evidence of the father’s father suggested that the father does spend reasonably substantial time at a place other than the home of his parents. 

2. The father would enrol the children at a school close to the home of his parents.  He has approached staff at this school and I would assume that places are available for the children. 

3. The father proposed that there be no contact between the children and their mother for a period of 6 months, in the event that they go to live with him.  His only reason was that he has not been able to spend time with the children for 6 months, thus the mother should receive the same treatment. 

4. If the father fails to secure an order that the children live with him, he does not wish for the children to spend any time with him at all.  This extreme position was confirmed by him at least twice during his evidence on 4 April 2007.

5. It hardly needs to be stated that these proposals demonstrate a remarkable lack of insight into the needs of the children on the part of each of their parents.

THE CONSIDERATIONS

The Primary Considerations

1. There was no evidence as to any risk to the children’s well being in the care of either of their parents.  The mother made a number of unsubstantiated complaints about the father which seem to be based more in malice against him than in fact.

2. The father conceded that the mother is “a very good mum” and that the children are always well presented.  There was nothing in the evidence which would suggest that the mother’s history of depressive illness has had any adverse impact on her ability to care for the children during the past 2 years. 

3. The evidence did demonstrate a striking lack of insight on the part of each of the parties as to the children’s need for an ongoing relationship with their other parent.  There is thus a real risk that these children will be exposed to psychological harm in the care of either of their parents.  As the Independent Children’s Lawyer submitted, neither parent approached this matter from the perspective of the best interests of the children.

4. All the indications are that the children would benefit from a meaningful relationship with each of their parents.  Both parties, however, seemed determined to deprive their children of that advantage in life.  For the reasons which I will set out below, it seems to me that the court is powerless to prevent the parties from continuing to engage in this destructive behaviour.

The Additional Considerations

section 60CC(3)(a):  any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views

1. The mother’s failure to attend the appointments with Dr W and Mr O deprived the court of objective evidence in relation to the children’s views.  Although the children are only 6 and 5 years old, their views would nonetheless have been given proper consideration.

   section 60CC(3)(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);          

2. Again, there was no objective evidence as to the nature of the children’s relationship with their parents and other significant persons due to the uncooperativeness of the mother.  The children have always been in the primary care of their mother, thus it is likely that their strongest and closest relationship is with her.

3. It may well be that the children’s relationship with their father has been undermined by their mother’s frustration of opportunities for them to spend time with him.  On the basis of the available evidence I am simply unable to make any findings as to the nature of the children’s relations with their parents and any other persons.

4. It seems that the father’s parents have had reasonably significant contact with the children until recently.  The evidence of the father’s father indicated that he and his wife are very committed grandparents to the children.  Objective evidence with regard to the children’s relationships with their paternal grandparents would have been of assistance to me.

   section 60CC(3)(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;

5. It is staggeringly apparent that the mother is open to much criticism, in terms of this factor.  She made it very clear that she could see no benefit at all to the children in an ongoing relationship with their father.  It was equally clear that a significant component of her motivation in this regard was his involvement with another woman.  It is sad indeed to witness such a lack of insight by a mother into the needs of her children.

1. The father has made some efforts to maintain a relationship with the children and he deserves credit in this regard.  For example, he has been to their school but he did not provide to the principal a copy of the orders which permitted him to visit, to the extent allowed by the staff.  He simply let this avenue for contact with the children disintegrate, when the principal told him he was not permitted to attend at the school. 

2. The father’s solution to the difficulties in his maintaining a relationship with the children was to seek that they live with him.  Ostensibly this proposal seemed appropriate and, probably, the only viable solution.  Great concerns emerged with this proposal, however, because of the father’s vindictive approach to the children’s ongoing relationship with their mother.  I have referred already to his insistence that the children not spend time with their mother for a period of 6 months, simply because he has been deprived of contact with them for that period. 

3. My concerns as to this lack of insight on the part of the father were heightened by his acknowledgement that the daughter would miss her mother in these circumstances.  Although the father did not mention the son in this context, there is no reason at all to think that he would react in the same way to a lengthy separation from his mother.

   section 60CC(3)(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

4. In the absence of expert evidence, it is difficult for me to predict the effect on the children of a change in residence from their mother to their father.  Similarly, it is difficult to predict what might be the consequences for the children if their father makes good his threat to abandon them if he does not obtain an order for residence.  It might be supposed that the children would suffer in the latter scenario.

   section 60CC(3)(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

   section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents  

5. I have already referred to much of the evidence which is relevant to these considerations.  It is obvious that the capacity and attitude of both of the parents is sadly lacking, as I have indicated above.  There was nothing in the evidence or in the presentation of either of the parties which left me with any reason for optimism that this situation may improve in the future.  The parties seemed consumed with issues as between themselves and determined to continue with their retaliatory behaviour toward each other. 

CONCLUSION

1. As was submitted by the Independent Children’s Lawyer, the real question at the end of the day was whether it is appropriate to make any parenting orders at all in these proceedings.  Neither party seemed overly interested in prosecuting their competing applications.  They could not be bothered to provide any written evidence and the mother did not trouble herself to attend the appointments with Dr W or Mr O.  As well, the parties seem to be prepared to comply with court orders only when and if they feel inclined to do so from time to time. 

2. I have no reason to suppose that any further orders which I might make would be complied with by the parties, having regard to recent history.  In any event, the father made it extremely clear that he does not want any orders for the children to spend time with him, if he is not awarded residence.

3. For all of these reasons, I am persuaded by the submission of the Independent Children’s Lawyer that the most appropriate course is to discharge all existing orders in relation to the children and to dismiss all outstanding applications and responses.  This outcome is far from satisfactory but the parties have only themselves to blame.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate: 

Date:  12 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SALEH & HAMAD