SIMMS & GODFREY

[2017] FamCA 888

FAMILY COURT OF AUSTRALIA

SIMMS & GODFREY [2017] FamCA 888

FAMILY LAW – CHILDREN – Parenting orders – Where the Father has disengaged in the Court process – Where Court ordered that the mother have sole parental responsibility for the children – Where Court ordered the children live with the mother.

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60, 61, 65

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
SCVG & KLD (2014) FLC 93-582

APPLICANT: Ms Simms

RESPONDENT: Mr Godfrey

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 11201 of 2011

DATE DELIVERED: 25 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 October 2017

REPRESENTATION

THE APPLICANT: Self-Represented

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Norman & Kingston

Order

1. The mother have sole parental responsibility for the B born … 2004 and C born … 2007 (“the children”).

2. The children live with the mother.

3. All outstanding applications be dismissed.

4. The Independent Children’s Lawyer be discharged.

5. All previous Orders be discharged.

NOTATION:

A.The Notice sent to each party listing this matter before the court informed them that a final order may be made in their absence.

B.That pursuant to section 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 are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11201 of 2011

Ms Simms

Applicant

And

Mr Godfrey

Respondent

REASONS FOR JUDGMENT

1. This matter is listed before me today for a case management hearing with the intention of listing the matter for a final hearing in the week commencing 16 April 2018.  Each of the parties were notified by mail of this listing and the requirement that they attend and be in a position to update the Court on what has been happening and what orders they are seeking. 

2. This afternoon, this matter was called and there was no appearance by either of the parties, Ms Godfrey, now known as Ms Simms, nor Mr Godfrey, her former husband.  Attempts were made to contact both parties and Ms Simms was able to be contacted with the assistance of the Independent Children’s Lawyer, Mr Kingston, who has long been involved in this matter. Mr Godfrey was unable to be contacted.

3. Ms Simms informed the Court by telephone that it had been her intention to attend in person, but that she had problems with her motor vehicle and had been unable to get here as a result, but she certainly participated in the hearing by way of telephone.

BACKGROUND FACTS

1. This matter has had a long history.  Proceedings were commenced in 2011, and there have been many attempts over the years for the children to be reintroduced and to spend time with the father.  Mr Godfrey is 34 years old and may still be employed as a tradesman.  The Court is informed that Mr Godfrey has re-partnered and, apparently, has a child with his partner, Ms D. Ms D has two other children, aged four and eight, who spend alternate weekend time with her; although, there seems to be some prohibition on the father being present when the children are in her care.

1. The parties in this matter were married in 2006 and separated in 2011.  There was a brief attempt at reconciliation in 2014, and in 2016, the father stayed at the mother’s home for a period of nine days.  The mother indicated that she had considered reconciliation at this time; however the father disputed that was ever in his mind, and he returned to his partner’s home after that nine-day period. 

2. Ms Simms and Mr Godfrey have two children together, B born in 2004, now aged 13, and C born in 2007, now aged 10.  The children have always lived with the mother and have spent very little time with the father.  The father, in his response, was seeking equal shared parental responsibility and alternate weekend time with the children. 

3. This matter first came before me on 18 November 2016 at the instigation of the Independent Children’s Lawyer. It was listed as an undefended hearing due to the parties disengaging from the proceedings.

4. However, on that occasion, both the mother and the father made an appearance, representing themselves, and the matter was adjourned to a date before a Registrar for directions.  The notation on the Order states:

   It is noted that the parties had disengaged from the proceedings and have not communicated with the Independent Children’s Lawyer for some time.  The material and the Family Report require updating if this matter is to proceed. 

5. The father, it seems, indicated a wish to pursue an interim order that he spend time with the children, and the notation on the order notes that the father was informed that if he wished to do so, he should bring an application in a case.   

6. The father did file an interim application and it came before Senior Registrar Spink on 3 May 2017.  By this time, there had been a family report prepared by Mr E in January 2017, for which he interviewed the parties and made observations which included him observing the children with the mother at her home. 

7. Mr E interviewed the parties and the children, but made a determination that it was not in the children’s best interests at that time to introduce the father to them. Mr E made recommendations that the children continue to live with the mother and that she have sole parental responsibility for them, and subject to the children being engaged in counselling, that they spend some supervised time with the father at a contact centre.  Mr E also recommended that the father’s partner not be included in such supervised time until there had been some development in the relationship between the children and the father. 

8. Senior Registrar Spink made an order on 3 May 2017 (‘the May order’) that the mother ensure the children attend upon a psychologist, and that she provide the father with a copy of the referrals and details of making that appointment with the psychologist. There was a provision for the father to spend limited supervised time with the children at a contact centre, which was not to commence until after the children had had the opportunity to see a psychologist.  The mother informs the Court that the children did attend upon a psychologist and that she had registered with the Contact Centre and undertaken her intake session which was required by the May order. 

9. It seems that the father did not register with the contact centre, nor undertake an intake session. The father has not spent any time with the children, despite the May order and it would seem that he has, again, disengaged with the Court process. 

10. There is a history of significant drug use by the father and, historically, by the mother; although, there is no recent evidence of the mother abusing drugs. 

11. The May order also required the parties to submit to hair follicle testing if requested by the Independent Children’s Lawyer.  No request of the parties had been made. 

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

9. ‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

10. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

11. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

12. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

13. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

14. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

15. In cases, where it is suggested that a child will be exposed to an unacceptable risk of harm the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[4]

    [4]M & M (1988) 166 CLR 69

16. The Court has power under section 69ZQ of the Act to deal with as many aspects of a matter on a single occasion as possible. That section relevantly provides:

    General duties

    (1)  In giving effect to the principles in section 69ZN, the court must:

    …

    (a)  decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and

    (b)  decide the order in which the issues are to be decided; and

    (c)  ..

    (d)  in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it; and

    (e)  make appropriate use of technology; and

    (f)  …

    (g)  deal with as many aspects of the matter as it can on a single occasion; and

    (h)  deal with the matter, where appropriate, without requiring the parties' physical attendance at court.

    …

17. The purpose of my referring to those matters is of particular relevance in this case where there is a long history of the father disengaging in the Court process.  The Court, of course, cannot require people to engage in litigation. 

18. I am being urged today by the Independent Children’s Lawyer and by the mother to make a final order in terms of the consent order that was made in May, namely:

    a)That the mother have sole parental responsibility; and

    b)That the children live with the mother.

19. This would simply reflect what has been the case for a very long time and according to Mr E is meeting the requirements of the children.  I propose to do so.

20. I do not propose to make any order that the father spend time with the children. However, if the father is able to demonstrate to the Court that there is some benefit in the children spending time with him, and if he can satisfy the Court as to why he has disengaged in the Court process for what seems to be yet another occasion, then it might be that the Court would consider some future application that he spend time with the children.  The Court would still have to take into account the matters raised by Mr E in his report and the failure, it seems, of the father to even do the little that was required of him under the May order, namely, to register with the F Town Contact Centre and undertake an intake session. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 October 2017.

Associate:

Date:  7 November 2017