Sonos and Dunne

[2013] FamCA 882

FAMILY COURT OF AUSTRALIA

SONOS & DUNNE [2013] FamCA 882

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time - where the matter has proceeded without the father being involved – best interests – orders made for the children to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 61DA; 65DAA; 91B

Allesch v Maunz (2000) 2003 CLR 172
Haydon & Bennett [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218

APPLICANT: Mr Sonos

RESPONDENT: Ms Dunne

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: BRC 505 of 2012

DATE DELIVERED: 13 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Brisbane

JUDGMENT OF: Berman J

HEARING DATE: 16 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Farr

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sara

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

1. That all previous parenting orders be discharged.

2. 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 … 2010 (“the children”).

3. That the said children live with the mother.

4. That the said children spend no time with the father.

5. That the order for the appointment of the Independent Children's Lawyer be discharged.

6. That the proceedings be removed from the active pending list of cases.

7. 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 entitled “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 Sonos & Dunne 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: BRC 505  of 2012

Mr Sonos

Applicant

And

Ms Dunne

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to parenting issues in respect of the children B born in 2008 and C born in 2010 (“the children”).

2. By initiating application filed 20 January 2012 the father sought extensive orders in respect of parenting but in particular that the parties would have equal shared parental responsibility in respect of the children but that they would primarily live with the father and spend time with the mother only as agreed.

3. The mother by way of amended response filed 17 December 2012 seeks orders that she have sole parental responsibility for the children and that they live with her with no provision for the children to spend time with the father.

4. Ultimately, the matter proceeded without the father being involved in the proceedings.  There is nothing to suggest why the father did not attend but as will become apparent, I am satisfied that he was both aware of the proceedings and had every opportunity to be involved.

5. The matter did not proceed on an undefended basis in the sense that I consider the initiating application of the father to be before me.  The difficulty is that there is no relevant affidavit material prepared and filed by the father for the purpose of the final hearing.

COURT HISTORY

1. The proceedings were transferred to the Family Court of Australia by way of order of 20 March 2012.

2. The orders provided that the children would live with the mother and that they would spend supervised time with the father at the K Town Contact Centre once a week.

3. It is also relevant to highlight that an order was made pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) requesting the intervention of the Director-General of the Department of Communities (Child Safety Services) in relation to the said children. As will become apparent, the nature of the allegations principally directed against the father provides the factual matrix and foundation for the request for intervention by the Director-General.

4. The matter came before Registrar Kane on 13 June 2012 and the father was represented by Ms Scheiwe via a telephone link.  Further directions were adjourned to 3 October 2012.  The father was further represented before Registrar Brooks on 20 June 2012 for the purpose of procedural orders directed towards the manner in which certain documents produced pursuant to subpoenas would be put before the Court.

5. Registrar Kane further heard the matter by way of directions on 16 January 2013.  On that occasion there was no appearance by the father and the matter was listed for a callover before Justice Kent on 25 March 2013 at 9.30am with a further order made that the father appear in person at the callover hearing.

6. It was further ordered that if the father failed to appear at the callover on 25 March 2013 the mother would be at liberty to seek that the matter be listed for an undefended hearing.

7. A further directions hearing took place before Kent J on 25 March 2013.  The applicant father appeared on his own behalf and the matter was set down for a final hearing for three days commencing on 16 October 2013 at 10am. 

8. A further directions hearing took place on 28 August 2013.  The father did not attend and was not represented.  Orders were made for the filing of further trial documents.  There has been no compliance by the father with respect to any of the orders directed towards the preparation of the matter for hearing. The mother and the Independent Children's Lawyer have complied with all trial directions.

9. I am satisfied that notwithstanding the father was not in attendance before the Registrar on 28 August 2013, he was aware of the hearing date and of the consequences of him not attending before a Registrar on a date to be fixed namely, that the father ran the risk of the matter being heard undefended on 16 October 2013.

10. The father did not attend the trial.  All reasonable efforts were made to ascertain whether the father was in attendance. I am satisfied that the lack of engagement in the proceedings by the father appears to be deliberate, but in any event without explanation in circumstances where he has engaged in the proceedings at an early stage but has taken no part following upon his attendance before Justice Kent on 25 March 2013.

11. At the commencement of the proceedings it was raised with counsel for the mother and the Independent Children's Lawyer as to whether, notwithstanding the order made on 25 March 2013, the proceedings should be the subject of an adjournment to enable the father to participate should he need to do so. 

12. In that regard, I need to weigh up the significant and serious issues for determination and the strong submission of counsel for the Independent Children's Lawyer that the interests of the children would be served by the proceedings being concluded.  Having given careful consideration to the need to ensure that the father is afforded procedural fairness and natural justice, but also that the mother is entitled to have the proceedings heard and determined in circumstances where she has complied with all Court orders and directions and taking into account the serious matters alleged and the needs of the children, I have with little hesitation determined that the matter would proceed in the absence of the father.

DOCUMENTS RELIED UPON

1. The mother relies upon the following documents:-

   ·Amended response of the mother filed 17 February 2012

   ·Affidavit of the mother filed 20 March 2012

   ·Affidavit of the mother filed 21 March 2013

2. The Independent Children's Lawyer relies upon the following documents:-

   ·Affidavit of Mr D (annexing the report of the Family Consultant) filed 8 October 2013

3. The father relies upon the following documents:-

   ·Initiating application of father filed on 20 January 2012

EVIDENCE OF FATHER

1. The father did not comply with any trial directions and accordingly there is no affidavit material that the Court was able to consider on his behalf.

2. Notwithstanding the father plays no part in the proceedings either by way of his physical presence or in terms of any affidavit material that the Court is able to consider, nonetheless I do not consider that this matter is dealt with appropriately by in effect dismissing the father’s application summarily and making orders in default. It is not as simply resolved by finding that the apparent failure to prosecute the action by the father entitles me to make a parenting order as a result. 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 s 60CC of the Act.

3. 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) 2003 CLR 172, Sexton & Sexton [2012] FamCAFC 218 and Haydon & Bennett [2012] FamCAFC 89.

BACKGROUND

1. The parties have had an appalling relationship over a period of about four years.  The parties met in circumstances where unbeknown to the mother, the father was engaged in a methadone program and had a long history of drug use and abuse, involving morphine, codeine, heroin and a variety of recreational drugs being methamphetamine, LSD, marijuana, magic mushrooms and the abuse of alcohol.  The father at the commencement of the relationship was under treatment for drug related addictions.

2. The father has children by a prior relationship, namely E born in 1999 and F born in 2003.  There is apparently an arrangement between the father and the mother of E and F as to the living arrangements.  The mother has a child by a prior relationship namely G born in 2002.

3. The father has an extensive criminal history involving drug offences as well as offences involving violence.

4. The parties commenced cohabitation in or about 2006 and it is the mother’s case that she has been the victim of family violence on an ongoing basis.  It was as a result of the violence by the father that the mother says that the parties separated in late 2010.  At first instance there were parenting arrangements made which enabled the father to spend some limited time with the children, but following a significant assault by the father on the mother and threats by the father in respect of both her life and that of the children, the father spent no time with the children thereafter.

5. The mother alleges that the threats continued.  The mother currently resides in a location unknown to the father.

6. The mother alleges that during the course of the relationship she became aware of representations made by the father at a local pharmacist at H Town Pharmacy that the father was a regular customer and purchased pain killers representing that they were for the mother and members of his family.  The mother made observations that when the father was under the influence of drugs he could not sleep for long periods and would walk through the house screaming and behaving in an incoherent and irrational fashion.  He appeared to have hallucinations and his behaviour had the effect of causing distress and fear to the children the subject of these proceedings, but also the father’s children E and F and the mother’s child G.  The mother alleges that the father drove under the influence of drugs and accordingly the mother would hide the car keys.  When confronted by the mother’s refusal to provide the car keys the father repeatedly assaulted the mother.  The mother was threatened with a machete and in order to impress upon the mother that he was serious, the father is reported by the mother to have used the machete on items around the house.

7. The father has a history of inpatient attendance at both the I Hospital and the J Hospital.  The mother alleges that the father had behaved in such a way that the staff were required to call the police in order that the father be restrained in circumstances where he carried a flick knife.

8. The father is also the subject of a protection order in favour of his father (the paternal grandfather) arising out of an assault by the father wherein a smashed glass was used by the father to cause injury to the paternal grandfather’s face.  I do not propose to repeat all of the matters raised in the affidavit material prepared on behalf of the wife.  It is sufficient to note that the material sets out in detail and particularity unceasing acts of aggression and violence towards the mother.  The father has behaved in an harassing and threatening fashion and for a significant period of time (before the mother moved to an unknown location), the father would attend at her home, send her offensive and threatening messages, emails and telephone communication.  The police were involved and there were occasions when arising out of the father’s threats, the mother required the attendance of the police and she and the children had to seek refuge in a secure part of her home.

9. The father behaved in an aggressive and intimidating fashion in the presence of the children.  A particularly distressing incidence occurred when C was about 17 months of age.  This is referred to in the mother’s affidavit at paragraph 32 filed 20 March 2012:-

   I said that it needed to stop.  He put his face close to mine and said that I was a pig, a dog and a fucking slut.  He also said, I hate you and I have hated you for months now and I will make you lose everything, your house, your kids, your friends, family, everything.

   [E] came out and was screaming at [Mr Sonos] to stop and [C] had run to me.  I kept saying to [Mr Sonos] “stop, the baby” and asked him to leave but he continued.  He then yelled at [E] and [F] to grab their stuff.

10. Then at paragraph 34:-

    [Mr Sonos] continued screaming and pushing me despite me holding [C] and [C] being visibly upset.  I pleaded with [Mr Sonos] to calm down and I kept repeating to him “I’ve got the baby…I’ve got the baby”.  [Mr Sonos] did not stop spitting in my fact and shoving me into the wall behind me.  I yelled at [G] to take [C] from me.  [G] was not able to get close enough to pick [C] up off me.

11. Paragraph 35 of the mother’s affidavit records the father making the following threat:-

    Fuck off bitch, you’re dead.  I will slice your throat like a pig and the kids throat just to get to you.  Do you understand.  Call the police I dare you to.

12. The father then spat in the face of the mother and said:-

    By the time the police get here, imagine what I can do, what will happen before they get here.

13. The father then grabbed B from the end of the bed and put her in the pram.  The father made threats towards the child and taking into account the entirety of the circumstances on this occasion, I am satisfied that the children and the mother were both terrorised and in terror of the father.  His behaviour was aggressive, threatening and he was out of control.

14. I accept the mother’s assertion that she was the subject of ongoing domestic violence which included severe physical assault, intimidation and harassment.  The mother was threatened with a baseball bat, knives and on a number of occasions was the subject of extreme sexual assault by the father.

REPORT OF FAMILY CONSULTANT

1. Mr D has prepared a report dated 8 November 2012.  The report was commissioned by the Independent Children's Lawyer.  The report provides a summary of the background and the relevant issues as they are likely to affect the children, being the subject of these proceedings, but also a child of the mother from a prior relationship namely G born in 2002.

2. Not surprisingly, the allegations raised by the mother in her affidavit material were relayed to the Family Consultant.

3. It is noted that the father did not attend for the scheduled interviews and accordingly has not taken the opportunity to assist the Court and perhaps more importantly, to advance his own case.  An opportunity was given to the father pursuant to the order of 20 March 2012 that in addition to the appointment of an Independent Children's Lawyer, there be supervised time with the father at a contact centre.  That opportunity as provided for by the order was not taken up by the father.

4. Mr D had an opportunity to speak to and assess the presentation of the mother.  She attended with the children together with her oldest son G.  In a general sense, Mr D was prepared to accept the matters raised by the mother and it appears that her presentation was not considered exaggerated or inappropriate.  The children were also the subject of interview and assessment and it was noted by Mr D as follows:-

   Paragraph 19 – similarly, [C] and [B] both presented as happy, active children.  [Ms Dunne] appeared slightly nervous about the assessment and the behaviour of the children but in a general sense there was nothing untoward.

5. Mr D was not able to assess the level of risk but made the observation that the allegations were clear and consistent and the father had ample opportunity to be heard.

6. Importantly, Mr D formed the view that:-

   The children were strongly attached to their mother.  She presented in an orderly fashion, gave an adequate account of her views and interacted with the children without difficulty.  They appeared clean and well cared for.

7. Mr D did not consider that the children should spend time with their father.  Whilst it is not said, it is a reasonable extrapolation of the matters raised by Mr D that against the background of the uncontested allegations of the mother directed towards the father, it would not be appropriate for the children to spend time with him in circumstances where they could be at grave and serious risk.

STATUTORY FRAMEWORK

1. Part VII of the Act sets out the legislative pathway in terms of the matters which the Court needs to consider when making parenting orders.

2. The best interests of the children are required to be met and Section 60B(1) provides the relevant considerations to satisfy the objects of Section B.

3. Pursuant to s 60CA the Court must have regard to the best interests of the children.  That consideration is paramount.

4. I am obliged to consider s 60CC of the Act and in particular the primary considerations (s 60CC(2)) and the additional considerations in s 60CC (3). The Court is also obliged to consider the manner in which each of the parents have either fulfilled or failed to fulfil their responsibilities as a parent pursuant to s 60CC (4).

5. s 65D provides:-

   In proceedings for a parenting order, the Court may, subject to Section 61DA (presumption of equal shared parental responsibility when making parenting orders) and Section 65DAB (parenting plans) and this division, makes such parenting order as it thinks proper.

6. Section 65D(1) is subject to Section 61DA of the Act. This section requires a Court to apply a presumption that it 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.

7. The evidence in this case in circumstances where it is uncontested and by reference to the matters raised by the Family Consultant and supported by the Independent Children's Lawyer enable me to find that the father presents as an unacceptable risk to the children.  Moreover, the behaviour of the father towards the mother, his denigration of her and the offensive nature of his communication to the mother, and of direct threats to the mother and the children are corroborative and appropriate measure as to the extent of the risk that the father poses to the children.

1. Accordingly, the presumption in Section 61DA is rebutted and is not intended that any parenting order would provide for the children to have equal shared parental responsibility.

2. I must still apply the relevant provisions of Section 60CC of the Act.

3. I place weight on the views of the children and I am satisfied that they are frightened of their father and do not wish to see him or spend time with him.  This is supported by the opportunity provided to the father to spend supervised time with the children at a Contact Centre, his refusal to do so and his lack of commitment to the Court process.

4. The children have a clear relationship with their mother and appear to be well kept and appropriately cared for.  There is nothing to suggest that the children have a relationship with their father other than one based on fear and intimidation.

5. The mother is unwilling to facilitate a relationship with the father in circumstances where she has weighed up the potential risk of physical harm to herself and the children.  The father for his part has shown no interest in the children and has not taken up the opportunities provided by the orders of this Court.  It is not likely that the father will participate in the future and accordingly, if orders are made in 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.

6. There are clear issues in respect of the practical difficulties of the children spending time with their father.  The mother is fearful of the father.  I accept that her fears are genuine and properly based.  Accordingly, she does not wish to communicate her address, whereabouts or contact details with the father.  There may be significant logistical difficulties in any time being arranged.

7. The mother considers that the father is unfit to spend any time with the children and as has been the subject of comment, the mother makes serious allegations against the father.  There is no issue as to the mother’s ability to provide for the children’s emotional and intellectual needs and their current care is entirely proper.

8. There appears to be a close and loving relationship with the mother and with the children and their step-brother G.

9. I am not persuaded that there is any evidence to support a contention (if made) that the mother has created a campaign to alienate the children from their father.  If pressed, I consider that the contrary position appears to be more likely.  For reasons best known to the father, he does not involve himself in the process nor participate in the supervised time as ordered with the children.

10. Given the circumstances of the case and the appalling relationship that exists between the father and the mother arising out of his egregious behaviour towards her and the children, I do not consider that there is any alternative other than that the mother have the sole parental responsibility in respect of the children.  The presumption in Section 65DAA therefore does not apply.

11. Accordingly, I make orders as set out at the commencement of these reasons.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 November 2013.

Associate:

Date:  13 November 2013