SPEDDING & KEMPSON

[2015] FamCA 359

FAMILY COURT OF AUSTRALIA

SPEDDING & KEMPSON [2015] FamCA 359

FAMILY LAW – CHILDREN – Undefended final parenting – Where the mother has shown no interest in the proceedings – Where the mother has been given appropriate opportunity to appear at Court – Orders made for the father to have sole parental responsibility and for the children to live with him.

Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 61C, s 61DA, s 65AA

APPLICANT: Mr Spedding

RESPONDENT: Ms Kempson

INDEPENDENT CHILDREN’S LAWYER: Mr Christaki

FILE NUMBER: SYC 1192 of 2013

DATE DELIVERED: 28 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 28 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Christaki of Legal Aid NSW

Orders

1. That leave is given to the applicant for his Further Initiating Application filed on 23 January 2014 to be heard on an undefended basis.

2. That orders are made in accordance with paragraphs 1 – 5 of the final orders sought in the father’s Further Initiating Application filed on 23 January 2014 as set out hereunder:-

   1.That the Orders made in the Local Court of New South Wales at Suburb D on 2 February 2007 and in the Local Court of New South Wales at Suburb E on 5 September 2005, be discharged.

   2.That the father have sole parental responsibility for the children [B born on … 2000 and C born on … 2003].

   3.That the children live with the father.

   4.That the father be permitted to obtain or renew an Australian Passport for each of the children without the consent or signature of the mother.

   5.That the mother have no contact with the children except as agreed between the parties with such contact to be supervised at a supervised contact centre nominated by the father with the costs associated with the supervised contact to be borne by the mother.

3. That a sealed copy of these orders be sent by registered post to the mother at her last known address and by email to her last known email address.

4. That the family report may be released to any professional person who may from time to time be engaged to offer treatment to the said children.

5. That neither party shall be required to contribute to the costs of the Independent Children’s Lawyer.

6. That pursuant to s 62B and s 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached [to the engrossed orders] and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spedding & Kempson 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 1192 of 2013

Mr Spedding

Applicant

And

Ms Kempson

Respondent

REASONS FOR JUDGMENT

1. These are undefended parenting proceedings in relation to two children, B who was born in 2000 and C who was born in 2003. 

2. The children’s parents are Mr Spedding and Ms Kempson.  For convenience I shall refer to them as “the father” and “the mother”.  There are other respondents in these proceedings, being Mr F and Ms F, the children’s uncle and aunt, with whom the children had been living. 

3. The father seeks the orders set out in his Further Amended Initiating Application filed on 23 January 2014 namely:

   a)That the orders made in the Local Court of New South Wales at Suburb D on 2 February 2007 and in the Local Court of New South Wales at Suburb E on 5 September 2005 be discharged.

   b)That the father have sole parental responsibility for the children.

   c)That the children live with the father.

   d)That the father be permitted to obtain or renew an Australian passport for each of the children without the consent or signature of the mother.

   e)That the mother have no contact with the children, except as agreed between the parties with such contact to be supervised at a supervised contact centre nominated by the father, the costs associated with the supervised contact to be borne by the mother. 

4. The proceedings come before the Court in circumstances where the children’s mother has shown no formal interest in these proceedings.  Her last appearance in court was in March last year.  The mother’s solicitor ceased acting for her on 13 December 2013.  Since that time, no notice of address for service has been filed.

5. The father’s Initiating Application and various affidavits were served personally on the mother on or after March 2013 at her then address at G Street, H Town, Victoria.  Subsequently, the mother was personally served with court documents at the address which she gave in May 2013 as her address for service being I Street, H Town, Victoria.  The mother subsequently advised that she had moved from that address.

6. In January 2014, the mother was personally served with court documents at G Street, H Town. 

7. The father’s solicitors sent letters to the mother on 18 and 25 September 2014 informing her about orders made on 16 September 2014 listing the father’s application for hearing today and indicating that if the mother failed to file and serve a response and failed to appear at Court today, the father proposed to ask the Court to hear his application on an undefended basis.

8. The letters were sent to the mother at both I Street and G Street, H Town.  They were also sent by email to the mother’s email address contained in her solicitor’s notice of ceasing to act.  The letter to I Street appears to have been delivered, but that sent to G Street was returned to the father’s solicitors marked “return to sender”.

9. On 5 November 2014, a copy of the father’s updating affidavit filed on 5 November 2014 was sent by registered post to the mother at G Street, H Town (and to the respondent’s email address).  This was also returned.  This material was subsequently sent to the mother at I Street, H Town. 

10. As I said, the last court appearance by the respondent was in March 2014.  In all these circumstances, I am satisfied that appropriate endeavours have been made by the father to serve the mother and provide opportunity for her to appear at Court.  I conclude that she does not wish to be involved in these proceedings.  I give leave to the father for his Further Amended Initiating Application to be heard on an undefended basis.

11. The orders sought by the father are supported by the children’s aunt and uncle, Mr and Ms F. 

Background

1. The brief background matters are as follows.  The father was born in 1969.  He is currently 45 years of age. The mother was born in 1965.  She is currently 49 years of age. 

2. They began living together in approximately September 1990, married in 1994 and separated on 26 May 2005.

3. There are four children of their relationship namely, Ms J born in 1994, Ms K born in 1996 and, of course, the two children subject to these proceedings, B, born in 2000 and C, born in 2003.

4. After the parents separated on 5 September 2005, they had consent orders made by the Local Court at Suburb E.  The orders provided for the children to live with their mother and spend time with their father on alternate weekends and for half of all school holidays.

5. In June 2006, the mother travelled to the Country L.  The father cared for the children at this time.  In September 2006, the mother informed the father that she would not be returning to Australia and the children continued living with their father.

6. In February 2007, consent orders were made by the Local Court at Suburb D.  These orders provided for the father to have sole parental responsibility for the children and for the children to live with him while their mother was overseas. 

7. In 2007, the father commenced his relationship with his now wife, Ms M Spedding.  They commenced cohabiting in October 2007. 

8. In approximately 2008 the mother returned to Australia from the Country L and she lived at Newcastle before moving to Victoria.  The mother did not spend very much time with the children after her return.

9. In April 2008, Ms J went to Victoria to visit her mother.  Ms J stayed and continued to live with her mother there.

10. In the 2008/2009 Christmas school holidays, the children visited their mother.  The children did not return to their father at the end of the school holidays. 

11. The father and Ms M married in 2009.  They have one child namely, N, who was born in 2008.  Ms M Spedding has an adult daughter, Ms O, and a son, Mr P who, on my calculation, is approximately 15 or perhaps 16 years of age.

12. In May 2012, the father received a phone call from Ms Q from the Victorian Department of Human Services.  Ms Q informed the father that the children were in foster care due to an incident that occurred between the mother and her partner, Mr R. 

13. On 25 May 2012, an interim order was made providing for the children to be returned to their mother’s care subject to various conditions.  One of the conditions was that the mother was not permitted to bring the children into contact with her partner, Mr R. 

14. On 5 July 2012, Mr R was sentenced to six months imprisonment for various offences – including criminal damage and contravening a family violence intervention order.   On 15 October 2012, he was released from prison. 

15. On 29 November 2012, Ms Q from the Victorian Department of Human Services again telephoned the children’s father and stated that the children had been removed from their mother due to a further incident and placed in foster care.  The children’s aunt and their grandparents travelled to Victoria to collect the children and the children were placed into the care of their aunt and uncle, Ms and Mr F, who live in Sydney.  At that time the father was unable to provide suitable accommodation for the children.

16. What had occurred was that there had been a family meeting including not only the father and Ms and Mr F but also the children’s paternal grandparents.  The various members of the family and the father decided that it would be much better for the children not to be left in foster care and the family made a judgment that in the longer-term the children would pass into their father’s care.  The father was in a situation where he was living with his wife and their children as well as one or two of Ms M Spedding’s children.  They did not have accommodation which was suitable to enable them to accommodate the children at that time.  So Ms and Mr F agreed that they would take the children into their care in Sydney in the expectation that, after some time, the children’s father would be able to avail himself of accommodation which would be sufficiently large to accommodate all of the children.

17. In December 2012, a Department of Human Services report indicated that the Department assessed B and C as having been exposed to a significant history of physical and verbal violence between the mother, her partner, Mr R and their older sister and that this was impacting on their emotional wellbeing.  The report concluded that the mother had not demonstrated a capacity to be able to prioritise the children’s needs over her own needs.

18. In December 2012, interim Children’s Court orders were made which provided for the children to continue to live with Ms and Mr F, noting that subject to the progress of the children in their care, the father would commence proceedings in the Family Court of Australia.  That was part of the arrangement which the father and Mr and Ms F made with the Victorian authorities.  It was in those circumstances that the children were released into the care of Mr and Ms Fs. 

19. In March 2013, a report by the Department of Human Services recommended that the children remain out of the mother’s care and that the Department had serious concerns about their safety if they were to be returned.  The report also noted that the Department intended to discontinue their Protection Application, provided that the father commenced proceedings in this Court.  I note that the father filed his Initiating Application in this Court on 7 March 2013.  On 17 April 2013 he filed his Amended Initiating Application seeking sole parental responsibility and that the children continue to reside with the aunt and uncle on an interim basis and that they live with him or Mr and Ms F on a final basis. 

20. The mother filed a Response on 17 July 2013 in which she sought an order for equal shared parental responsibility of the children that day live with her and spend time with their father for half of all school holidays. 

21. In August 2013, the mother sustained multiple fractures to her leg and was hospitalised following a further incident of domestic violence between her and her partner, Mr R. 

22. These proceedings first came before me in December 2013 and I noted that there was no appearance by the mother on that occasion.  Then the father filed his Further Amended Initiating Application seeking that the children live with him, that he have sole parental responsibility and that they have no contact with their mother other than by arrangement.  Mr and Ms F also filed an Amended Response seeking the same orders as the father.

23. On 19 January 2014, the children moved to S Town and commenced living with their father.  The father currently lives in a five-bedroom house in S Town with his wife and the children to whom I have referred, and the father works full time as an assistant manager. 

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

4. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

5. Sub-section 61DA(1) of the Act provides 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.

6. Sub-section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in, abuse of the child or another child member of the parent’s family or, family violence.

7. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them. 

8. I do not need to rely on best interests to be satisfied that the presumption does not apply in this case.  I am satisfied that the presumption does not apply because this is a case in which I am satisfied that there has been serious family violence.  This violence has involved the children’s mother and, more particularly, her partner Mr R. 

9. In my view, it is appropriate for an order to be made for the father to have the sole parental responsibility for the children and that order would also be consistent with the best interests of the children.

Section 60CC Considerations

1. How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Unfortunately, it would not be in the interests of these children to be able to have a meaningful relationship with their mother.  Firstly, she has failed to show interest in them in any material manner since well before she last attended court in March 2014.  In any event, I am satisfied that these children have been exposed to serious family violence at a time when they were in her care.  This, of course, is underlined by the fact that the Victorian authorities acted in the way that they did in the best interests of these children and in accordance with their, no doubt, statutory duties to ensure protection of children to remove the children from their mother’s care. 

3. So, bearing in mind the second of the primary considerations, that is, the need to protect these children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  I am at a loss to know how orders could possibly be framed consistently with that requirement which would provide these children for an opportunity to have a meaningful relationship with their mother.  I am satisfied that, in fact, they could not be. 

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(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. C told the family consultant in late 2013, at the time that she was living with her aunt and her uncle that she wished to live with her father because he cares about her and she is happy in his care.  She said that she was happy living with her aunt and uncle until such time as she could live with her father.  She also expressed affection for Ms M Spedding.  B told the family counsellor that she missed her mum. 

2. I am satisfied on the basis of information that has been provided to me by the independent children’s lawyer that both of the children are happy in their current circumstances, and I accept that, clearly, weight ought to be given to that factor. 

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. I am satisfied that the children have a close and loving relationship with their father as they also do in relation to their paternal grandparents and to their aunt and uncle.  Under the current arrangements the children will have regular contact with their extended paternal family. 

2. The children’s relationship with their mother has been quite problematical over quite some years.  It has been disrupted by the mother’s move to the Country L.  It has also been disrupted by the mother’s apparently poor choice of a relationship with Mr R which she has, clearly, prioritised over her need to parent the children appropriately.  The children’s relationship with their mother appears really to be quite a dysfunctional relationship.  In any event, I am satisfied that it is not safe for the children to be living with their mother.  The family consultant observed that both B and C were happy and comfortable with their father.  I’m satisfied about the nature of their relationship with him and the other relevant adults who are in their lives.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the children

1. The mother has placed herself in a situation where she has not really been in a position to be able to participate in making decisions about major long-term issues in relation to these children or in relation to spending time with them in the circumstances which have developed.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. This is not a matter to which, in my view, the Court needs to give much consideration at all. 

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. The likely effect of changes in their circumstances if they were to be removed from their father’s care and placed in their mother’s care would be likely to be hugely problematical.  The mother has not even been able to organise herself sufficiently to be able to participate in these proceedings, let alone take on the responsibility for children the ages of these children.  So one could only anticipate great upheaval and distress if the children were to be removed from their father’s care. 

Sub-section 60CC(3)(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. This is a relevant consideration because the mother lives a great distance from where the children now are.  But there are much larger obstacles in the way of the children being able to maintain personal relations and direct contact with their mother, as I have indicated.  There is nothing on the landscape, as it were, involving the children’s mother which could give the Court any confidence that she would be able to provide to these children safety in a physical sense and protection in and emotional and psychological sense.  In fact, all the evidence points to the antithesis of that.  So while practical difficulty does loom as being relevant in the proceedings, it just simply adds to the difficulties of the children being able to have opportunity to maintain personal relations and have direct contact with their mother on a regular basis. 

2. What is being proposed by the father is, given the very complicated circumstances of this case, that that opportunity would have to be one where there would be appropriate protections for the children.  The sensible course would be if there is to be some time to be spent that that be in a supervised contact centre.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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. I am satisfied that the mother does not have the capacity to be able to provide for the needs of the children.  Clearly, that was the view reached by the appropriate authorities in Victoria when they removed the children from the mother’s care in the circumstances to which I have referred above.

2. On the other hand, I am satisfied that the father has sufficient capacity to provide for the children, both in a physical sense and so far as their emotional and intellectual needs are concerned.  My view about this is reinforced by the fact that these children have had to come a great distance from circumstances where they were in a situation involving crisis and danger in the care of their mother, through an interim situation to which they adjusted, apparently quite readily, to the care provided by Mr and Ms F, and then ultimately passing into the care of their father.  All this has involved a considerable adjustment because not only have they had to change their schools and change their group of friends, but also they have had to adjust to a new home and a home in which they also have step-siblings.

3. Yet all the pointers are positive.  Those pointers are the reports from school that the children have settled down and are making quite satisfactory progress at school.  The independent child lawyer has also ascertained from the school that the children are really happy at school and have settled down well there.  So, in my view, that all points very well in favour of the father’s capacity to provide for the children.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. In relation to this next relevant matter, in my view, the mother has not demonstrated an appropriate attitude so far as her responsibilities to parenthood are concerned. 

2. On the other hand, the father has demonstrated appropriate parental responsibility.  He has acted appropriately since engaged by the Victorian authorities the first time.  He has been able, with the assistance of his sister and brother-in-law and his parents, to take on what has been quite a difficult task.  That is, arranging for the relatives to go to Victoria, pick up the child, satisfy the Victorian authorities that appropriate arrangements could be provided for these children, ultimately building a home in which to accommodate the children and being able to provide the necessary care for the children.  His ability in this regard is well reflected in the progress the children have been able to make and in their having been able to settle down against a background of considerable upheaval.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. I have already referred to the fact that I am satisfied that these children were exposed to serious family violence. 

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

1. I am not aware that there is any family violence order in place.

Sub-section 60CC(3)(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 comfortably satisfied that the orders that the father proposes will be least likely to lead to the institution of further proceedings. 

Conclusion

1. I am satisfied, having considered the primary considerations and the additional considerations, that the best interests of these children require that orders be made that they reside with their father and that the orders provide that they do not have time with their mother or any direct contact with her other than as agreed between the parties, with any such time spent between the children and the mother to be supervised at a supervised contact centre nominated by their father at the children’s mother’s cost.  It may be that in the fullness of time some other family arrangement might be able to be made.  But that would have to be a matter for the father to arrange in the event that he considers that that would be in the children’s best interests. 

2. I shall put orders in place as sought by the father.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 28 January 2015.

Associate:     

Date:              12 May 2015