SMITHFIELD & SMITHFIELD
[2014] FamCA 666
•19 August 2014
FAMILY COURT OF AUSTRALIA
| SMITHFIELD & SMITHFIELD | [2014] FamCA 666 |
| FAMILY LAW – CHILDREN - Final Orders - Undefended Hearing - where father filed Notice of Discontinuance – where mother has history of physical and mental illness – mother alleges father perpetrator of family violence – improvement in mothers health following separation - children have not spent time with the father for approximately three years – orders made for children to live with mother who shall have sole parental responsibility. |
| Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65D |
| Allesch v Maunz (2000) 203 CLR 172 |
| APPLICANT: | Mr Smithfield |
| RESPONDENT: | Ms Smithfield |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4211 | of | 2011 |
| DATE DELIVERED: | 19 August 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 11 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No Appearance |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr Swan |
| SOLICITOR FOR THE RESPONDENT: | Swan Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stephen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That all previous parenting orders be discharged.
That the mother shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children B born … 2008 and C born … 2011 (“the children”).
That the said children do live with the mother.
That the directions hearing listed for 7 November 2014 be vacated.
That the 5 day trial commencing 8 December 2014 be vacated.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
That the proceedings be removed from the Acting Pending List of Cases.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitles “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smithfield & Smithfield 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 ADELAIDE |
FILE NUMBER: ADC 4211 of 2011
| Mr Smithfield |
Applicant
And
| Ms Smithfield |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to parenting arrangements in respect of the children B born in 2008 and C born in 2011 (“the children”).
The mother alleges family violence permeated their relationship and that both she and the children were targets of the father’s physical violence. The father alleges the mother’s illnesses rendered her incapable of adequately caring for the children. The father has not spent time with the children following the parties’ separation in September 2011.
The father initiated proceedings in November 2011 seeking orders that the parties have equal shared parental responsibility and that upon attaining school age the children would live with him. In a Response the mother sought orders that the children live with her and that she have sole parental responsibility. While the mother initially sought orders that provided for the father to have supervised time with the children by July 2013 the mother opposed any order
Both parties had the benefit of legal representation for the duration of proceedings but for reasons that will become apparent, the matter ultimately proceeded on an undefended basis.
Background
The mother was born in 1977 and is currently 36 years of age. The mother suffers from an auto immune deficiency in the form of alopecia and successfully manages a number of other physical ailments. The mother takes medication for her Bi-Polar II disorder and has undergone therapy with a psychologist since 2011.
The father was born in 1979 and is currently 35 years of age. The father has also suffered a number of significant medical issues. The father reports a history of depression and some drug use. The father has a daughter D from a previous relationship. D is now 15 years of age and spends limited time with her father.
The parties met at their local church in 1994 but did not enter into a relationship until they reconnected in 2005. The parties became engaged in 2005 and married in 2007.
The child B was born in 2008.
The child C was born in 2011.
The mother alleges the father had been sexually and physically abusive since the commencement of their relationship, with the father’s verbal abuse increasingly directed towards the children as the relationship deteriorated.
A report was made to Child Protection Services following an incident on 20 August 2011 in which the father forcibly carried the child B from the room by her ankles and caused her to hit her head.
The parties separated in September 2011. The father left the former matrimonial home and the children remained in the primary care of the mother.
An Intervention Order was granted on 13 October 2011. The terms of the order provide the father is not to contact the mother or the children for a period of six years. The order was subsequently reduced to 12 months and the children’s names removed from the list of protected persons.
Procedural History
Proceedings commenced on 8 November 2011 when the father filed an Initiating Application seeking equal shared parental responsibility with the children to live with the father upon attaining school age. Notwithstanding the orders sought in relation to limited time on special occasions, such as birthdays and Christmas Day, the father did not propose orders that would provide for the children to spend regular time with him
By way of a Response filed on 28 November 2011 the mother sought orders that the children live with her and that she have sole parental responsibility for the care, welfare and development of the children. Initially the mother sought orders that the father spend supervised time with the children at a Children’s Contact Service, with such time to be conditional upon the father attending anger management counselling and remaining medication compliant. The mother’s position subsequently altered in July 2013 when she filed an Amended Response seeking an order that the children spend no time with the father.
The matter came before Federal Magistrate Brown (as he then was) on 9 December 2011 who ordered the children live with the mother, the proceedings be transferred to the Family Court of Australia and an Independent Children’s Lawyer be appointed.
On 8 February 2012 the matter came before Burr J (as he then was) who adjourned proceedings to enable the parties to obtain further information in relation to whether the father would be facing criminal proceedings as a result of the incident in August 2011. The father was interviewed by police but the matter did not proceed any further.
On 26 February 2013 MacMillan J set the matter was set down for trial in July 2013 with each party consenting to an independent psychiatric assessment.
MacMillan J made orders by consent on 22 July 2013 which provided the children were to live with the mother until further order and spend supervised time with the children at the Suburb E Children’s Contact Centre on a fortnightly basis. A prerequisite to the father spending time with the children was the completion of both an anger management course and a parenting course. A report was to be prepared at the conclusion of six visits.
The father filed an Application in a Case on 30 September 2013 seeking his time with the children commence forthwith alleging the mother had failed to attend an intake assessment at the Suburb E Children’s Contact Centre. The father’s application was dismissed by MacMillan J on 13 December 2013.
The matter first came before me on 7 April 2014 following an Application in a Case filed by the father on 20 February 2014 seeking orders that the child B attend upon a psychologist with a view to ascertaining the basis for her refusal to spend time with the father. I made orders for the mother to facilitate the child attending upon child psychologist Mr F. The mother was also ordered to obtain a Mental Health Plan referral for herself and the child, and was restrained from discussing the proceedings with the child.
The matter next came before me on 14 May 2014 for a first day hearing. I set the matter down for a five day trial in the week commencing 8 December 2014.
The father’s solicitors filed a Notice of Discontinuance on his behalf on 15 July 2014 seeking to discontinue his application in its entirety. For reasons that are not known a second Notice of Discontinuance was then filed on behalf of the father on 22 July 2014, again seeking to discontinue the whole of his Initiating Application.
There being no attendance by the father or his counsel on Monday 11 August the final hearing proceeded on an undefended basis.
Documents Relied Upon
The Independent Children’s Lawyer (“the ICL”) and counsel for the mother agreed a list of documents upon which they sought to rely. The documents were as follows:
· The mother’s Response to an Initiating Application filed 28 November 2011
· Affidavit of the mother filed 28 November 2011
· Trial Affidavit of the mother filed 10 July 2013
· Report of Dr G (Annexed to an affidavit of the ICL filed 20 May 2013)
· Family Assessment Report dated 16 October 2012
· Family Assessment Report dated 26 June 2013
Counsel for the mother informed the Court that although she sought to rely on her Response filed 28 November 2011 the mother would not be pursuing orders in relation to time spent with the father, nor telephone communication between the children and the father.
At first blush it would appear that the mother is seeking orders already contained in her Amended Response. However, the Amended Response provides that no order be made for time between the father and the children while the earlier Response, inclusive of the amendments as stated at the final hearing before me, is silent on the issue.
In any event the father has had notice of the mother’s attitude towards the children spending time with him. It has been a long held feature of her case and was formally adopted in the Amended Response filed in July 2013.
Evidence of the Father
The father did not comply with trial directions and accordingly there is no affidavit material that the Court was able to consider on his behalf. Obviously I have regard to the father’s initiating application but there is no other evidence, in respect of the father’s case, upon which I am able to rely.
Notwithstanding the father plays no part in the proceedings whether by way of his physical presence or in terms of any affidavit material that the Court is able to consider, I do not consider that this matter is dealt with appropriately by dismissing the father’s application summarily and making orders in default. It is not simply resolved by finding that the father’s failure to prosecute the action entitles me to make a parenting order as sought by the mother. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that it is apparent how I have exercised and discharged the need to give proper consideration to the relevant provisions of the Family Law Act 1975 (Cth) (‘the Act’).
I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 203 CLR 172, Sexton & Sexton [2012] FamCAFC 218 and Haydon & Bennett and Anor [2012] FamCAFC 89, Sinnott & Firth (No 2) [2013] FamCAFC 159.
The father has chosen not to avail himself of the opportunity provided by this Court. There is nothing to suggest why the father did not wish to continue his involvement but in all the circumstances I am satisfied that he was both aware of the proceedings and had every opportunity to be involved.
Evidence of the Mother
The mother did not seek to give oral evidence nor call witnesses in support but instead relies on the affidavit material filed on her behalf over the course of the proceedings.
The orders sought by the mother have the support of the ICL. The Independent Children’s Lawyer was afforded but declined the opportunity to cross examine the mother.
While I am mindful of not simply accepting the uncontested evidence of the mother in circumstances in which the father is not present, I am however entitled to take into account that counsel for the ICL chose not to avail himself of the opportunity to cross examine the mother.
Family Assessment Reports
Family Consultant Ms H completed two Family Assessment Reports in this matter. I provided the parties with the opportunity to call Ms H but neither the ICL nor the mother required the author to give oral evidence.
16 October 2012
No observed interaction took place between the children and the father as the risk to B’s emotional wellbeing was likely to be greater than any benefit to the assessment. B had not seen the father for approximately 12 months and repeatedly informed Ms H that she did not want to see the father.
Ms H noted the mother “expressed considerable remorse and shame that she had remained in the parental relationship as long as she did exposing the children to the ongoing trauma and abuse”. The author also acknowledged that following separation the mother has “engaged with agencies and facilitated B attending for therapy as Court ordered. Her actions demonstrate her ability to be child focused and ensure her own emotional availability to the children”.
The author ultimately recommended the father spend time with the children for one hour each week at a Children’s Contact Service with a report to follow at the conclusion of a three month period. Ms H recommended the paternal grandmother and the father’s daughter from a previous relationship occasionally attend the sessions with the father.
26 June 2013
On this occasion a brief observed interaction occurred between the father and B over the protestations of the mother. The interaction was observed to be “comfortable and spontaneous”. While acknowledging the mother was arguably acting protectively the writer was critical of the mother and urged her to “contain her own feelings and provide the children with the opportunity to have an unfettered relationship with their father”.
In relation to the efforts of the mother post separation the writer observed the following:
The I Intervention Service report supports Ms Smithfield’s assertions that she has since parental separation focused her energies into providing the children with safe and secure routines, boundaries and love. The children were observed to be happy in her care. B presented as calmer, more settled and less fragmented than during the first Family Report.
Ms H recommended the parents have equal shared parental responsibility and the children live with the mother. She recommended a gradual reintroduction regime in which the children would spend supervised time with the father every two weeks before the preparation of a further report for the Court. Ms H also recommended the father attend a domestic violence group and a three month parenting course.
Report of Dr G
Pursuant to consent orders made on 26 February 2013 the parties each attended upon Dr G for the purposes of a psychiatric assessment. Following interviews with the mother and father and a review of the relevant documents Dr G prepared a report dated 16 May 2013.
Dr G did not view either party’s mental state as posing a risk to the children but concluded that both parties had engaged in emotional manipulation of the other.
In the report Dr G notes the mother’s illnesses are significant and would require lifelong treatment but that
…since the relationship has ended both physical and mental health has been more stable. This implies that the relationship was exerting a negative influence on her health, both physically and mentally. Her mental condition has improved with the current treatment described as stable, also implying that there has been stability of her health. So whilst [Ms Smithfield] has significant health issues I do not believe that these issues are posing a risk to the children.
I note that during the assessment the father did not deny he was physically violent towards women in the past but maintained “these were isolated incidents and he was remorseful afterwards”. In relation to the father’s alleged violent behaviour it was Dr G’s “overall impression…that there is probably more violence than [the father] is letting on and less than [the mother] is describing”.
Statutory Framework
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.
The best interests of the children are required to be met and section 60B(1) provides the relevant considerations to satisfy the objects contained in section 60B. While section 60B may indicate the legislative intention or purpose of the Part, when determining the best interests of the child the facultative provisions are sections 60CA and 60CC (Maldera & Orbel [2014] FamCAFC 135).
Pursuant to section 60CA the paramount consideration of the Court is the best interests of the child. In doing so I am obliged to consider section 60CC of the Act and in particular the primary considerations (section 60CC(2)) and the additional considerations (section 60CC(3)).
Section 65D provides:
In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
…
Section 65D(1) is subject to section 61DA of the Act. This section requires the Court to apply a presumption that is in the interests of the child that there be equal shared parental responsibility, unless there is abuse or family violence as referred to in section 65D(2) and/or the presumption is rebutted by evidence that suggests equal shared parental responsibility would not in the circumstances be in the interests of the child.
The evidence in this case, while not going so far as to enable me to make a finding that the father was physically and verbally abusive towards the children, in the circumstances of the uncontested evidence of the mother and by reference to the matters raised by the Family Consultant and supported by the ICL, enable me to find that it would not be in the best interests of the children to have shared parental responsibility.
Accordingly, the presumption in section 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.
I must still apply the relevant provisions of section 60CC of the Act.
The parental relationship deteriorated to a point at which it had an overwhelmingly negative effect on the health and wellbeing of the parties and no doubt impaired their ability to adequately care for the children. However, now independent of the father it would appear the mother’s physical and emotional health has improved.
Furthermore, I am satisfied the mother will continue to take the appropriate steps to maintain her physical and mental health in the long term with the continued involvement of her treating psychologist, Dr J.
I am also comforted by the mother’s willingness to seek support when needed as evidenced by her involvement with the 12 month I Intervention Service and her self-referral to the Mental Illness Fellowship South Australia. A closure report from I Intervention Centre dated January 2013 records that the mother has:
…a clear and consistent routine in place and displays dependable motivation and responsibility to support her children in their developmental capacity…the mother demonstrates warmth and positive attitude and feelings towards both her children and avails herself in supervising and teaching her children to increase their communication, self-esteem and coping skills. The mother’s insight into each child’s learning and developmental needs has increased. She consistently demonstrates capacity to attune to each child’s physical and emotional cues and responds appropriately in placing priority on her children’s wellbeing and family safety needs…
While I am cognisant of the benefit to the children of a meaningful relationship with both parents, in the circumstances of this case it would not be in the best interests of the children. The father has not spent any time them since September 2011, save and except a brief period of observed interaction with the child B for the purposes of a Family Assessment Report.
There is little evidence of a meaningful relationship between the father and children nor any intention to form one following the filing of a Notice of Discontinuance. It is not likely the father will participate in the future and, accordingly if orders are made in the terms of the mother’s application it is not likely that there will be any significant or dramatic change in the children’s circumstances thereafter.
The relationship between the mother and children on the other hand is clearly a warm and loving one and they appear to be well kept and appropriately cared for. I am satisfied that the mother has the capacity to care for the physical, emotional and intellectual needs of the children.
Accordingly I make orders as set out at the commencement of these reasons.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 August 2014.
Associate:
Date: 19 August 2014
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