SAMWORTH & BURNETT (No.2)
[2011] FMCAfam 816
•1 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMWORTH & BURNETT (No.2) | [2011] FMCAfam 816 |
| FAMILY LAW – Children – parenting – interim orders – application for ex parte orders – where respondent has gone to Perth and applicant does not know an address for service – best interests of the child – family violence issues – family violence order in force – where mother requires father to undergo a psychiatric assessment before spending time with the child. FAMILY LAW – Injunction – interim injunction – where applicant seeks interim injunction against respondent to protect herself, the child, and two children from an earlier marriage – whether an injunction is necessary when a final Apprehended Domestic Violence Order is in force until November 2012. |
| Family Law Act 1975, ss.60CA, 60CC, 60CG, 61DA, 64B, 68B Family Law Amendment (Shared Parental Responsibility) Act 2006 Federal Magistrates Court Rules 2001, r.5.03 |
| L v T (1999) 154 FLR 211; 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 |
| Applicant: | MS SAMWORTH |
| Respondent: | MR BURNETT |
| File Number: | SYC 552 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 August 2011 |
| Date of Last Submission: | 1 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | O’Connell Solicitors |
| The Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
The Applicant is granted leave to proceed ex parte.
The Applicant is to have sole parental responsibility for the child of the marriage [X] born [in] 2000.
The child [X] is to live with the Applicant.
The child is to spend such time with the Respondent as the Applicant and the Respondent shall agree, such time to be in the presence of a responsible adult nominated by the Applicant.
Neither the Applicant nor the Respondent is to use any physical discipline on the child or permit any other person to do so.
The Applicant and the Respondent are restrained by injunction from denigrating or criticising each other in the presence or hearing of the child.
The Applicant is to forward a sealed copy of these orders to the Respondent at his last known address within twenty-eight (28) days.
The Application is adjourned to Monday 12 December 2011 for further mention at 10am.
The Respondent is advised that if he does not attend Court on
12 December 2011 then final orders may be made in his absence.
IT IS NOTED that publication of this judgment under the pseudonym Samworth & Burnett (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 552 of 2011
| MS SAMWORTH |
Applicant
And
| MR BURNETT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders by the mother of a girl called [X] (known as “[X]”). [X] was born [in] 2000, so she is now ten years and seven months old. The father has not attended court and has, on the evidence available, travelled to Perth for work and the mother does not know his address or exactly when he will return to Sydney.
Background
The parties were married in September 1999 and separated on 19th August 2010. There is one child of the marriage, the child [X], who was born [in] 2000.
The mother has two children from her previous marriage:
a)[Z], born [in] 1998; and
b)[Y], who was born [in] 1995.
On 8th November 2010 the Local Court of New South Wales at Newtown made a final Apprehended Domestic Violence Order against the father, naming the mother and her daughters [X] and [Y] as protected persons. The order is in force for two years.
The Apprehended Domestic Violence Order was varied by the Local Court on 28th March 2011, but it remains in force for two years.
The mother commenced proceedings in this Court by filing an application and supporting affidavit on 1st February 2011. The mother has had difficulty serving sealed copies of the documents on the father and the application has been relisted on two separate occasions to allow more time for service.
The mother has now filed an Application in a Case seeking an order dispensing with personal service.
Evidence
The mother has sworn a further affidavit on 27th June 2011, settling out her dealings with the father, who has exhibited a considerable reluctance to attend court, although the mother deposes that he is well aware of the proceedings.
The father had moved out of the matrimonial home and was staying with his brother, but he moved back into the home on 5th May 2011. The parties are now separated under the one roof, or were, until the father left for Perth on 21st May 2011.
The mother deposed in her affidavit that the father told her on or about 18th May 2011 that there was a job for him in Perth. He left on the following Saturday. She does not have an address for him in Perth, nor does she know when he plans to return.
The mother also deposed that on 6th June 2011, when the matter was previously before the Court, she telephoned the father on his mobile phone to advise him that she was at Court seeking orders. She states that she asked him if he wanted anything said to the Court on his behalf but he replied:
I’m fine. I don’t need anything.[1]
[1] Affidavit of Ms Samworth 27.6.2011 at paragraph [21]
The mother gave evidence on oath in support of her application. She confirmed that the father knew of the proceedings but was unable to indicate when he proposed to return to Sydney. She also confirmed that he had said to her:
I know what you want. You deal with the matter in Court if you want. I don’t want to go to Court. You finish the matter yourself.[2]
[2] Ibid at [27]
The mother has also deposed that the father said to her:
I want all this to be finished. I want nothing to do with it. I know what I’m doing. I just want a peaceful life. I don’t want any more dealings with Court.[3]
[3] Ibid
The mother wishes to have some orders in place in respect of the parties’ child [X], because she needs to make decisions on the child’s behalf without having to rely on the father’s permission. The only way she can communicate with him is by mobile telephone from time to time.
The Relevant Law
Rule 5.03 sets out a procedure to be followed where a party is seeking ex parte orders on an urgent basis. In particular, the applicant must advise the Court of:
(d) the steps that have been taken to tell the respondent or the respondent’s legal representatives of the applicant’s intention to make the application or the reasons why no steps were taken; and
(e) the nature and immediacy of the damage or harm that may result if the order is not made…
Section 60CA of the Family Law Act 1975 provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Subsection 60CC(1) of the Act provides that a Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of that section.
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both 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.
Paragraphs (i) and (j) of subsection 60CC(3) require the Court to consider any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family.
When making a parenting order, the Court is required by s. 61DA(1) to 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, although s. 61DA(3) provides that:
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.
Conclusions
It is a matter of concern that the mother was not able to serve the respondent personally whilst he was living in Sydney. However, there is evidence that:
a)The respondent is and has been aware of these proceedings;
b)He has chosen not to involve himself in these proceedings;
c)He has travelled to Perth to live for an indefinite period; and
d)The mother’s only means of communicating with him is by mobile telephone.
I am of the view that it is appropriate to make interim parenting orders on an ex parte basis. If the father wishes to be heard, he can file a response and an affidavit setting out the facts that he wishes to present to the Court and he can always attend Court.
I am satisfied that it is in the best interests of the child [X] to make parenting orders in favour of her mother. It is clear from the evidence that the mother is [X]’s primary caregiver.
It is an important consideration that the Court must make orders intended to protect the child from physical or psychological harm from being subjected to or exposed to family violence. There is a final Apprehended Domestic Violence Order in force for a period of two years, naming the mother and the child as protected persons.
Both the original order made on 8th November 2010 and the varied order made on 28th March 2011 show the Applicant as [omitted] Police and show that the defendant (i.e. the respondent to this application) was present at the Local Court when the orders were made.
The Court is required by s.60CG of the Act to ensure that any order made, consistently with the child’s best interests being the paramount consideration:
a)is consistent with any family violence order; and
b)does not expose a person to an unacceptable risk of family violence.
I am not satisfied that it is appropriate in the circumstances to apply the presumption that it would be in the child’s best interests for her parents to have equal shared parental responsibility for her. In the light of the family violence order currently in force, I am of the view that that, on an interim basis, the mother should have sole parental responsibility.
I am satisfied that it is in the best interests of the child that she should live with her mother.
In her Amended Application filed on 17th May 2011, the mother seeks interim orders and final orders in identical terms. Orders 3, 4 and 5 sought by that application refer to the father having “contact” with the child, subject to the father meeting some nine separate conditions and, if the father is unable to comply with those conditions, then the father is to spend time with the child only under supervision at times agreed between the parties.
The use of the term “contact” in parenting orders was replaced by operation of the Family Law Amendment (Shared Parental Responsibility) Act 2006. What used to be called “contact”, as opposed to “telephone contact”, is now defined by s.64B(2) of the Family Law Act 1975:
A parenting order may deal with one or more of the following:
(b) the time a child is to spend with another person or other persons;
The mother seeks an order that the father comply with the following conditions (summarised) before he can spend unsupervised time with the child:
a)That he attend on a medical practitioner who is a recognised expert specialising in psychiatry or psychology;
b)That he make himself available for a psychiatric assessment and the preparation of a report to determine whether he is safe to spend time with the child;
c)That he obtain that report at his own expense;
d)That he forward that report to the mother’s legal representatives;
e)That the report must stipulate whether the father “may come into contact with the child”;
f)That he completes a domestic violence awareness and prevention course;
g)That he completes an anger management course;
h)That he completes a parenting course; and
i)That he provides certificates as to his successful completion of those courses to the mother’s solicitors.
There is no doubt that the Court has power to order that a party attend a psychiatrist and undergo treatment as a condition of a parenting order (see L v T[4]). However, the mother has not provided any evidence about the father’s mental state in order to justify such an order. The only evidence is that there is an Apprehended Domestic Violence Order in force.
[4] (1999) 154 FLR 211; 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699
Again, it is doubtful that the father, who has to this date failed to involve himself in these proceedings at all and has, on the mother’s evidence, said that he does not want to have any dealings with the Court, will take any of the steps required by the mother. With respect, the orders sought appear to be futile at this stage unless and until the father shows some degree of willingness to involve himself in his daughter’s life.
The mother suggests in her Order 6.1 that if the parties do not agree about a supervisor of the father’s time with the child, then the supervisors should be:
a)The father’s brother, Mr A;
b)The mother’s son by her previous marriage, [Z], or, upon the expiration of the Apprehended Domestic Violence Order, herself.
As the Apprehended Domestic Violence Order does not expire until 8th November 2012, it is hardly appropriate to make an interim order to take effect on that date.
If the mother wants specific persons to be supervisors, those persons should provide written undertakings to the Court. There is no evidence at this stage that either one would be prepared to be a supervisor.
The mother also seeks injunctive orders that:
a)Neither party should physically discipline the child;
b)Neither party should allow anyone else to physically discipline the child; and
c)The parties should denigrate each other in the presence or hearing of the child.
Those proposed orders are uncontroversial.
However, the mother also seeks an injunction that the father should not “denigrate, intimidate, harass or otherwise adversely interfere with the child, the mother, and/or the mother’s children from her earlier marriage, these being her daughter [Y] born [in] 1995 and her now adult son, [Z] born [in] 1998.”
True it is that the Court has a wide power under s.68B of the Act to make injunctive orders in order to safeguard the welfare of a child, but it must be queried at this stage why it is necessary to make an order in such wide terms on an interim basis. There is an Apprehended Domestic Violence Order in force until November 2012 naming the mother, the child and her daughter [Y] as protected persons. It is hard to see what extra protection an interim injunction under s.68B could give over that already provided by the Apprehended Domestic Violence Order.
There is no evidence that the father poses any threat to the mother’s adult son, [Z]. Accordingly, there is no evidence to support an injunction for his protection.
In my view, on an interim basis, the father’s time with the child should only be as agreed with the mother and in the presence of a responsible adult nominated by the mother.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 August 2011
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