Samford and Samford

[2007] FamCA 897

FAMILY COURT OF AUSTRALIA

SAMFORD & SAMFORD [2007] FamCA 897

FAMILY LAW – CHILDREN - With whom a child spends time - With whom a child communicates

Family Law Act 1975 (Cth)

APPLICANT: Mr Samford

RESPONDENT: Ms Samford

INDEPENDENT CHILDREN’S LAWYER: Nabil Wahhab

FILE NUMBER: SYF 2296 of 1998

DATE DELIVERED: 27 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 27 August 2007

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: Ms. Samford (In person)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr. Nabil Wahhab

Orders

1. That all previous parenting orders are discharged.

2. That the child … born … July 1995 shall live with the mother.

3. That the child spend time with the father:-

   (a)By telephone each Saturday between 8:30 am – 9:00 am with the father to call the child at the mother’s home provided however that if there is no answer the father must not leave any voice mail messages on the mother’s phone and the mother shall ensure the child calls the father at the earliest opportunity after 9:00 am.

   (b)By email once per week but limited to child appropriate communications and shall not contain any threats or similar matters.  If the father does send emails containing threats and the like then the mother shall be at liberty to terminate the email communication.

   (c)By gifts, birthday cards, Christmas cards and the like.

4. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-

   (a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-

   (i)an obligation to do all reasonable things to give effect to the orders; and

   (ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.

   (b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties.  This sets out:-

   (i)the penalties which may apply, or other things which may occur, if you breach the orders made; and

   (ii)details of who can assist parties to adjust to and comply with the orders made.

   (c)That there are available programs to help people understand their responsibilities under parenting orders and that the Court can make Recovery Orders to ensure that parenting orders are complied with.  Details of the available programs can be obtained through Family Relationship Centres.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Steele delivered this day will for all publication and reporting purposes be referred to as Samford & Samford.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2296  of 1998

Mr Samford

Applicant

And

Ms Samford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings for parenting orders relating to a now 12 year old girl, whose parents separated in August 1998.

2. There was no appearance today by or on behalf of the father.

3. The case has proceeded on an undefended basis following receipt by the Registrar of a letter from the father indicating that he did not intend to attend Court on the date fixed for hearing of 27 August 2007.  In that letter the father has asserted that he has new employment that precludes him coming to Court on the hearing date but urged the Court to have regard to his affidavit.

Short History

1. The father was born in September 1964 and is now 42 years of age. 

2. The mother was born in April 1960 and is now 47 years of age. 

3. The parties commenced cohabitation in 1991 and were married in November 1992.  Separation occurred on 7 August 1998.

4. There is one child of the marriage, a daughter born in July 1995 who is now 12 years of age.  She lives with her mother.

5. Each of the parties has been unrepresented throughout the hearing and there is an independent children’s lawyer.

The Facts

1. The dispute between the parties was heard by Rose J and he delivered, after a three day hearing, judgment on 26 October 2005.  In that judgment he recorded that the father had serious anger management and alcohol problems and made orders which provided for the father to have supervised contact each alternate Sunday and ordered that he undergo treatment from a psychologist specialising in issues of anger management and alcohol abuse.  The orders made by Rose J required the father to provide to the mother and the independent children’s lawyer a report from the psychologist detailing the consultations held and certifying that the father had successfully overcome those issues.  The father did attend a number of consultations with a psychologist, Ms. E, who provided a certificate which stated that she was unable to certify that the father had overcome the problems because it was never possible to do that in cases involving these types of problems. 

2. The mother, however, took the view that the father continued to have alcohol problems and anger management problems and declined to provide the child for unsupervised contact. The end result is that the father filed an Application on 15 September 2006.  The mother has also filed an Application, as has the independent children’s lawyer. 

3. The matter came before me on 10 November 2006 when I accepted a submission from the independent children’s lawyer that the order made by Rose J may be of no effect in all the circumstances.  There having been no appeal from Rose J’s orders the findings of fact, that the father had alcohol and anger management problems, should be accepted and a new hearing embarked upon determining whether in the light of the treatment he has had the father should now be able to have unsupervised contact as he was seeking.

4. By way of interim orders, I made orders on 10 November 2006 for the further conduct of the matter and for the father to see the child on alternate Sundays on a supervised basis.  The only supervisor able to be agreed upon was an accredited professional from an agency and the father saw the child on a number of times on that basis.  The last occasion was apparently Christmas Day 2006 when the father stated that he was no longer able to afford that expense.

5. The Family Consultant, Ms. B, who had prepared an earlier family report in July 2005, prepared a further family report dated 14 February 2007.  She recommended that the parents have equal shared parental responsibility and that the child continue to spend time with the father on a supervised basis through a professional supervising agency or supervised contact service and that she communicate with her father by telephone calls or emails.  She also made recommendations for the father to continue treatment from a psychologist and continue seeking assistance from Unifam.

6. The matter came back before me again on 29 March 2007.  Ms. E, the expert who had provided the original certificate and report in relation to the father’s alcohol and anger management problems was to provide a new report but it was not then available.  The father advised that he had lost his job and was unable to afford supervised contact. In those circumstances the matter was set down for a three day trial commencing 27 August.  Since that time a further updated report has been obtained from Ms. E which has been verified by affidavit and filed.  It was apparent that she had not seen the father since December 2006, although there was telephone contact on two occasions in January 2007 when he informed her that he was seeing a private psychologist, Mr. C.  He said that he was having ongoing problems with his neighbours and had been required to undertake weekend detention for smashing a window at his previous residence.  She recorded that he had, contrary to her instructions, been leaving messages on her mobile phone.  She expressed the view that it is likely that when the father consumes alcohol to excess he has a tendency to leave messages for the mother and that she (Ms. E) was unwilling and unable to state that the father had overcome his issues.  She said that the situation had appeared optimistic for a time however, other incidents in his personal life tend to indicate that he had unfortunately been unable to improve the position thus impacting upon his ability or inability to gain unsupervised contact with his daughter.

7. The father has not exercised his right to cross examine the deponents of the various affidavits filed by the mother and the independent children’s lawyer.  He had informed the independent children’s lawyer that he assumed the trial judge would read his affidavit and make a decision based on the affidavit material.  The Court can, of course, do that and I have read his affidavit but the weight to be given to it must be judged having regard to the fact that he has not been available for cross examination.

8. The real issue is whether the father should have unsupervised contact.  Sadly, all the evidence suggests that he should not have unsupervised contact with his 12 year old daughter and his contact should be limited to contact by way of telephone, letters, gifts and/or emails.  The material provided by the affidavits suggests that if the father was to have unsupervised contact it would be upsetting for the child.

9. Having regard to the father’s position and the problems of communication with him, the presumption in s.61DA has, in my view, been rebutted.  I do not propose to make an order for equal shared parental responsibility.

The Orders

1. That all previous parenting orders are discharged.

2. That the child shall live with the mother.

3. That the child spend time with the father:-

   (a)By telephone each Saturday between 8:30 am – 9:00 am with the father to call the child at the mother’s home provided however that if there is no answer the father must not leave any voice mail messages on the mother’s phone and the mother shall ensure the child calls the father at the earliest opportunity after 9:00 am.

   (b)By email once per week but limited to child appropriate communications and shall not contain any threats or similar matters.  If the father does send emails containing threats and the like then the mother shall be at liberty to terminate the email communication.

   (c)By gifts, birthday cards, Christmas cards and the like.

4. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-

   (a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-

   (i)an obligation to do all reasonable things to give effect to the orders; and

   (ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.

   (b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties.  This sets out:-

   (i)the penalties which may apply, or other things which may occur, if you breach the orders made; and

   (ii)details of who can assist parties to adjust to and comply with the orders made.

   (c)That there are available programs to help people understand their responsibilities under parenting orders and that the Court can make Recovery Orders to ensure that parenting orders are complied with.  Details of the available programs can be obtained through Family Relationship Centres.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate: 

Date:  27 August 2007