SAUSSURE & CONDILLAC

[2012] FamCA 1153

FAMILY COURT OF AUSTRALIA

SAUSSURE & CONDILLAC [2012] FamCa 1153

FAMILY LAW – PARENTING

APPLICANT: Ms Saussure

RESPONDENT: Mr Condillac

FILE NUMBER: SYC 4228 of 2011

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 12 July 2012

REPRESENTATION

APPLICANT: Ms Saussure

RESPONDENT: No appearance

Orders

1. The mother have sole parental responsibility for making decisions in relation to the major long term issues concerning the child B born on… December 2007 (“the child”) such major long term issues to include:

   a.the child’s education (both current and future)

   b.the child’s religious and cultural upbringing

   c.the child’s health

   d.the child’s name and

   e.changes to the child’s living arrangements.

2. The child live with the mother.

3. The child spend time with the father as agreed between the parties in writing from time to time.

4. The father and mother shall each have reasonable and flexible telephone communication with the child such that:

   a.the father shall telephone the child when he is living with the mother on a telephone number provided by the mother

   b.the mother shall telephone the child when he is spending time with the father on a telephone number provided by the father and

   c.both parties shall encourage and facilitate the child communicating with the other parent.

5. The mother shall have sole parental responsibility for the day to day care of the child when he is living with her and the father shall have sole parental responsibility for the day to day care of the child when he is spending time with him in accordance with these Orders.

6. The father and the mother shall keep each other advised of their residential address, email address and contact telephone numbers including landline telephone numbers and mobile telephone numbers and these contact details are only to be used for communications between the parties in relation to matters concerning the child.

7. The father and the mother shall keep the other advised of any change in their contact details including their respective residential addresses, email addresses, landline telephone numbers and/or mobile telephone numbers within 48 hours of any such change.

8. The father and the mother shall do all things necessary to authorise the child’s day care, pre-school and/or school to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s attendance and progress.

9. The father will take the child to all tuition, sporting and other extra-curricular activities during periods when the child is in his care pursuant to these Orders, and the mother will advise the father of any such activity as soon as practicable.

10. The father and the mother notify the other parent of any illness, medical emergency, serious medical problems, hospitalisation or accident in relation to the child when the child is in their respective care as soon as practicable and in any event within 24 hours, and together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that has provided any medical treatment for the child.

11. The father be restrained from:

    a.denigrating or criticising the mother and/or members of her extended family to and/or in the presence of and/or within the hearing of the child

    b.discussing any aspect of these proceedings to and/or in the presence of and/or within the hearing of the child and

    c.showing any documents related to these proceedings directly or indirectly to the child including through any third party.

12. The father be hereby restrained from removing the child or causing the child to be removed from the Commonwealth of Australia without the prior written consent of the mother or an Order of the Court.

13. The mother be permitted to travel overseas with the child provided the mother provides to the father at least two weeks advance written notice in writing setting out the proposed itinerary and complete contact details for the child including a telephone contact number.

14. The father and the mother shall do all acts and things and sign all documents necessary to facilitate the issue of an Australian Passport for the child and to ensure the child has a valid Australian Passport at all times.

15. The father and the mother shall equally share the costs associated with the issuing and renewing of the Australian Passport for the child.

16. In the event that the father neglects or refuses to sign an Application for an Australian Passport for the child or any other documents necessary to enable the implementation of these Orders within 7 days of being forwarded to him for signature, then pursuant to section 106A of the Family Law Act 1975, a Registrar of the Family Law Court of Australia at Sydney be authorised to sign such documents on behalf of the father and an Australian Passport issue for the child without the written consent of the father.

17. The mother will hold the child’s original Australian Passport at all times, with the exception of those occasions when the mother provides written consent to the father travelling overseas with the child and on such occasions the mother will deliver the child’s passport to the father at least seven days prior to any such overseas travel and the father return the child’s passport to the mother within 24 hours of his return to Australia from any such overseas travel with the child.

18. In the event that the father is not personally available to care for the child when the child is spending time with him in accordance with these Orders, the father will forthwith provide the mother with the name and contact details of any adult with whom he proposes to leave the child in his absence, and in the event the mother does not provide her written consent to such arrangement, then the father will provide the mother with the first opportunity to care for the child.

19. On those occasions when the child is spending time with the father pursuant to these Orders, the father is hereby restrained from:

    a.using and/or consuming and/or supplying marijuana and/or any other illegal substances for at least 48 hours prior to the commencement of the time the child is to spend time with him and during all periods when the child is in the father’s care

    b.associating and/or socialising with any individuals using and/or consuming and/or supplying marijuana and/or any other illegal substances and/or otherwise involved in any illegal activity during all periods when the child is in the father’s care and

    c.sharing a bed with the child and/or allowing any other adult to share a bed with the child during the time the father spends with the child pursuant to these Orders.

20. The father will at all times provide suitable and age appropriate accommodation including a separate bed for the child during all periods of care pursuant to these Orders.

21. In the event that the father is unable to spend time with the child pursuant to these Orders, the father will notify the mother in writing as soon as practicable.

22. The father pay the mother’s costs of and incidental to these proceedings.

23. All material produced in response to subpoenas is to be returned to the party who produced it.

24. The matter is removed for the list of Active Pending Cases.

25. Pursuant to Section 65DA(2) and Section 62B, 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 Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saussure and Condillac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4228 of 2011

Ms Saussure

Applicant

And

Mr Condillac

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings between the father and the mother of a child, B, born in December, in relation to the parenting arrangements for the child.  The proceedings were commenced by an application filed by the mother on 12 July 2011 in which she sought orders in relation to the exercise of parental responsibility for the child and orders as to the times during which the child, whom she proposes otherwise live with her, might spend with the father.

2. To that application, an amended response was filed by the father on 5 October 2011, in which he sought equal shared parental responsibility and for the child to spend time with him overnight for five nights, in each period of 14 days, with arrangements for special days and school holidays.  Orders were sought by him by which the parties would be obliged to keep each other informed of various matters relating to the child and for permitted travel interstate with the child under conditions.  The father also sought orders in relation to certain costs of the child being borne equally by the parties, and in relation to other matters concerning his care.

3. These proceedings were listed on an interim basis before Principal Registrar Filippello, who made orders of an interim nature on 6 October 2011.  Those orders encompassed joint parental responsibility for the child, that the child would live with the mother, and for the child to spend time with the father for an initial period of four nights per fortnight taken in two tranches, and then after February 2013, the orders provided initially for school holiday time to be spent with the father.  The parties were at liberty to vary the arrangements in writing from time to time.  Provision was made for special days and telephone contact.  Orders were made for the parties to keep each other informed of their contact particulars.  Machinery provisions are also the subject of orders, including the provision of information and the use of the communication book.  The parties were directed to attend a post-separation parenting course conducted by Unifam.

RECORDED  :  NOT TRANSCRIBED

It is noted that neither of them has done so.

1. Injunctive orders were made restraining denigration of either parent and/or members of their respective extended families, or discussing these proceedings in the presence of the hearing of the child.  An injunction was also made which prohibited the removal of the child from Australia without appropriate consents.  Injunctions were made restraining the father from using illegal substances proximate to the time he was to spend with the child, and injunctions were also made restraining the father from associating with anyone using or consuming and/or supplying illegal substances, or being involved in an illegal activity when the child was in the father’s care.

2. In a parenting questionnaire, the mother asserts in May 2012 that the father has not spent time with the child since 3 January 2012, and the father has not taken advantage of the orders made to spend time with the child.  An affidavit filed this day indicates there have been a number of requests by the father to have telephone contact with the child.  The mother has declined those offers on the basis that the father has not seen the child since January, and that the father coming in and out of the child’s life unannounced in the way that he proposed would only be distressing to the child, and be inimical to the child’s welfare.

3. The mother says she believes that the father has left Australia and information before the Court in the form of a telephone communication with my Associate from the father’s mother suggests that he resides in New Zealand.  The mother also agrees that this is likely to be the case.

4. The mother filed an affidavit on 24 May 2011 in which she set out her attempts to contact the father, and her provision of information in relation to the listing of the matter to associates and relatives of the father.  It is noted that a further affidavit has been sworn on 3 July 2011 and filed on the same date, in which the mother sets out further particulars of communications between herself and the father.

5. It is clear from that affidavit that the father has been advised of these proceedings and the necessity to appear.  An order previously made also required that the communication be made as best they could with the father informing him of the listing of the matter this morning and advising him that in the event that he did not appear today, the matter might well proceed on the mother’s application, and the mother applies that the matter proceed today, and having regard to the matters referred to, it is the intention of the Court to proceed with the hearing today on an undefended basis.

Background facts

1. Where, in this judgment, I make statements of fact, they are, unless otherwise specified, my findings of fact.

2. The mother was born in 1972;  the father was born in 1978.  The parties met in 1997.  The relationship was terminated by the father when he asserted that he served a custodial sentence in New Zealand.  In 1997, however, the mother received a telephone call from a person asserting that she was the father’s girlfriend and had been for some eight years.  In 2002, however, the parties resumed their relationship.  Thereafter, the relationship was an off and on relationship from time to time, with the mother complaining of the father’s conduct in relation to the use of drugs and involvement in criminal activity, his infidelity and his inability to support her and her son, and his violent temper and conduct towards her.

The evidence

Legal principles

1. The mother relies on the various affidavits that she has filed in Court, which the Court has read.

2. The principles governing this case are set out in the Family Law Act. In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interest, I must consider certain matters set forth under section 60CC of the Act. Those matters are the primary consideration and the additional considerations set out in that section.

3. I am required to ensure that any order I make is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence.

4. I will be guided by section 60B which sets out the objects of the Part of the Act dealing with children, and the principles underlying it.

5. I am required to consider matters set out in section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are, I will in these reasons, deal with those matters so far as they are relevant.

1. Section 61DA requires that:

   … 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.

   But subsection (4) provides:

   … 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.

   Section 65DAA requires me to consider the child spending equal time, or substantial and significant time with each parent where the Court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Though considerations under section 60CC include, as a primary consideration, the benefit of a child having a meaningful relationship with each child’s parents, there is no doubt that in the ordinary case, it is beneficial to the child to have a meaningful relationship with each of his or her parents.  However, a meaningful relationship can only take place in a situation where there is no risk of harm to the child.  A relationship which is fraught with danger and harm cannot be, in my view, meaningful.  In this particular case, on the evidence before the Court, the relationship of the child with the father is one which is surrounded by a number of dangers, on the mother’s evidence.  That is, that:  the child would be exposed to violence, the child would be exposed to drug taking, and the child might well be exposed to criminal activity to name but three.  It is noted also, however, that the mother gives evidence of the child being neglected in the father’s care.

(b)the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence

1. There is a need to protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.  The evidence of drugs, associations with criminals, being left in the bath unattended and in the company of others without prior knowledge of the mother, the intermittent nature of the involvement of the father in the child’s life, the child’s need for predictability and certainty in his life, and the child seeking the reassurance of the mother’s bed in response to his insecurity are matters which the Court has taken into account in assessing that there is a risk from which the child must be protected at this time, and the orders will reflect that view.

Additional considerations

(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

1. The Court is obliged to take into account any views expressed by the child.  The child is of very tender years, and if he were to express a positive view as to his future, it would be one on which little weight could be placed, and one which would certainly be disregarded if that view gave rise to the possibility of danger to the child.  There has been a good relationship between the child and the father in the past;  that seems to have now ended.  There is no doubt that there is a good relationship between the child and the mother, and to the extent that that relationship is an expression of the view of the child, I suspect that that is about as far as we can take the question of 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

1. The Court is obliged to take into account the nature of the relationship of the child with each of the child’s parents and any other persons, including any grandparent or relative of the child.  In a child dispute memorandum produced in these proceedings, on which the mother relies, the parents are described as bickering and the father is observed to behave in a highly reactive nature to the mother, and in an immature manner.

2. The child has a relationship with each of his parents who love him, but the continuing hostility between the parents, until terminated by the father’s withdrawal from the situation, were not in accordance with report been good for the child.  Further continuation of that conflict would also not be good for him.

3. The mother describes the relationship between the child and herself as requiring a continued presence, with little block time away from her as is possible.  This evidence supports the mother’s view that the child has insecurity when removed from her presence for any period of time.  The relationship with the mother otherwise appears, in all respects, to be close and loving.

(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

1. The Court is obliged to take into account 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.  The mother, it seems to me on the evidence, has done her best, but her efforts have achieved nothing.  Although she has put forward that time spent with the father should be limited, so as not to remove the child from her for long periods of time, she sought, nevertheless to encourage a relationship between the father and the child, and this has been met with a withdrawal by the father from the situation.  Although the recent refusal of telephone contact might be seen as being contra-indicated, the Court takes the view that the position of the mother, in relation to the refusal of said contact in the circumstances which have arisen and because of the potential distress to the child in circumstances where there could be no predictability as to future contact, was a reasonable approach.

(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

1. The Court is bound to take into account the likely effect of any changes in the child’s circumstances, including the likely effect on the child separating from either of his parents, any other child, or any other person including any grandparent or other relative.  The child, it appears, has security with the mother, and has demonstrated his need for that security, and in those circumstances at the present time, change would be likely to give rise to a feeling of insecurity in the child.

(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

1. The practical difficulty, and the expense of a child spending time and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to remain in personal relationships and direct contact with both parents on a regular basis is a matter the Court is obliged to consider.   In the present circumstances where the father resides probably in New Zealand, there will be attendant costs and expenses which will affect the child’s right to maintain personal relationships and direct contact with the father.  In addition, of course, there are those matters which are earlier referred to in the judgment, which render it subject to question as to whether, in the circumstances in which the father has thus far lived, that contact should be permitted.

(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

1. The Court has to consider the capacity of each of the child’s parents and any other person to provide for the needs of the child, including the child’s emotional and intellectual needs.  The maternal grandmother is part of the child’s life and she resides close to the mother’s place of residence and, no doubt, has an involvement correspondingly in the child’s life.  But the Court relies largely on the capacity of the mother to care for the child.  She has made proper arrangements for the care of the child thus far.  Although she works five days a week, the mother has enrolled the child in a day care centre, she has enrolled the child in a primary school commencing next year, the child is reported as being happy and healthy, and lively.

2. The child’s paternal grandmother apparently resides in Victoria, and does not seem to have demonstrated much in the way of a concern for the child – certainly in recent times. 

RECORDED:  NOT TRANSCRIBED

1. The father has been described by the Family Consultant as being immature.  The child, although a male child, appears to have a comfortable lifestyle at the present time absent the withdrawal of the father from time to time, from his life, and the inability to maintain a constant and predictable relationship between the child and the father.

(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

1. The father is of Country C background, but has lived in New Zealand.  There is no evidence of any particular cultural background or tradition which would affect the child, and which should be preserved.  It is noted that for the non-Maori population of New Zealand, and the population of Australia, there is probably little in cultural difference.

(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

1. The child is not an Aboriginal or Torres Strait Islander child, and that is not a matter required, therefore, to be taken into account by the Court. 

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The Court is obliged to consider the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents.  The father of the child has not signed the birth certificate, the father of the child has not provided proper support for the child financially.  The burden of the support for the child has been borne by the mother.  The father has not maintained a continuous, predictable, certain and appropriate communication and support for the child in terms other than financial.  The mother has cared for the child, borne the substantial costs of the child, provided the child security and comfort, and a household in which he is loved. 

(j)       any family violence involving the child or a member of the child’s family

1. The Court is obliged to take into account any family violence involving the child, or a member of the child’s family.  The father has been violent to the mother on a number of occasions, including in the presence of the child.  It is hoped that given the current time of peace from that sort of interaction, the child will not be too much damaged by what has occurred, but there is a danger that it might occur again.

(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

1. There is no family violence order in place, and perhaps it is significant that it is not so, because of the fear of the mother of the repercussions from procuring such an order.

(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

1. I am asked to consider whether it would be preferable to make an order which would discourage further proceedings in relation to the child.  Of course, continued proceedings in courts are never of great benefit to children, and this case is not different to the average.  But it seems to me the Court can make no order other than the one the Court proposes to make, and notes that that might lead to further litigation at a later stage, were the father to return to Australia and were he to, in those circumstances, wish to seek contact with the child.  The interests of the child are nevertheless best served by the orders that the Court proposes to make.

Section 60CC(4) & (4A)

1. The Court is obliged to take into account matters under section 60CC(4) and (4A), and I have already touched on a number of those matters which fall for consideration under this heading, and I will not repeat them.  The father certainly hasn’t taken advantage of all of the opportunities available to him to spend time with his child, on the evidence before the Court.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons, the Court concludes that the orders it proposes to make will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court, unless one of the excluding factors apply.  The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility.  Presumption does not apply where there has been family violence, in this case, there has been family violence as set out earlier.  Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of this child.  The section further provides, in subsection (4) that the presumption may be rebutted if it is determined not to be in the child’s best interests.

2. In this case, there is reason for presumption not to apply, and the Court accepts that in the present circumstances, with the evidence of violence, with the lack of effective communication between the parties, and with the father’s place of residence – to name but three of the matters of importance – the Court does not promote making an order for equal shared parental responsibility.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility, and it is not intended to make such an order.

2. Having regard to the history, the Court considers it appropriate that the order sought by the mother is the order that should be made.  The Court has a belief that the mother will behave reasonably in the interests of the child when dealing with a request for time to be spent with the father, so long as the child is not endangered.

3. The Court notes that it is open to the father to apply for orders for the child to spend time with him should circumstances change significantly.

The Orders to be made

1. Therefore the Court proposes to make the orders set out in exhibit 1, being the proposed orders sought by the mother, and makes those orders.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 12 July 2012.

Associate: 

Date:  29 July 2013