STACE & BRENT

[2014] FamCA 75

FAMILY COURT OF AUSTRALIA

STACE & BRENT [2014] FamCA 75

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child spends time – best interests – where matter has proceeded without mother being involved – orders made for children to live with father who has sole parental responsibility – no orders made for children to spend time with mother

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Moose & Moose (2008) FLC 95-375
Sexton & Sexton [2012] FamCAFC 218
Slater & Light (2013) Fam LR 573

APPLICANT: Ms Stace

RESPONDENT: Mr Brent

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 469 of 2008

DATE DELIVERED: 18 February 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 6 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Dillon

SOLICITOR FOR THE RESPONDENT: Andrew Hill & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That all previous parenting orders be discharged.

2. That the father shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development for the children S born … July 2004 and N born … March 2007 (“the children”).

3. That the said children live with their father.

4. The father is restrained from consuming alcohol to excess and or being under the influence of any illicit substance, and from allowing any other person so to do, while the children are in his care and 24 hours prior to.

5. The father is restrained from physically disciplining the children and or from allowing any other person so to do.

6. That the order for the appointment of the Independent Children’s Lawyer be discharged.

7. Pursuant to s 62B and s 62DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of 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 Stace & Brent 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:  ADC469/2008

Ms Stace

Applicant

AND

Mr Brent

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting issues in respect of the children S born in July 2004 and N born in March 2007 (‘the children’). The eldest child was diagnosed at age three as having Autism and Global Developmental Delay.

2. By way of the mother’s initiating application filed 18 July 2011 the mother sought orders that the father deliver up the children and “all living arrangements…with the father be discharged”.

3. By way of his amended amended response filed 19 December 2013, the father seeks orders that he have sole parental responsibility and the children live with him and spend time with the mother as agreed between the parties.

4. Ultimately the matter proceeded without the mother being involved in proceedings. There is nothing to suggest why the mother did not attend but as will become apparent, I am satisfied that she was both aware of the proceedings and had every opportunity to be involved. The lack of engagement in the proceedings appears deliberate, but in any event, is without any explanation.

Background

1. The parties commenced cohabitation in November 2003. The father was 38 years old at the time and the mother was 22 years old. The parties separated and reunited on a number of occasions up until the commencement of proceedings in 2008.

2. Both parties, although primarily the mother, disclose some history of alcohol and drug use during the course of the relationship. The father insists that since leaving the relationship and the birth of the two children he no longer resorts to alcohol or other illicit substances.

3. The mother was previously in a relationship with her carer, Mr M. The father alleges in early 2013 Mr M deliberately drove his car into the mother’s car being driven by her new carer, Mr P. The children were in the car with the mother at the time. The younger child has also made disclosures to the children’s paediatrician, Dr A, and psychologist, Mr B, about this incident. A number of disclosures made by the youngest child regarding physical abuse perpetrated by Mr M on the eldest child are also of significant concern.

4. Since ending her relationship with Mr M in April 2013, the mother has retained the services of a paid carer, Mr P. The father alleges Mr P has a serious criminal history. Whether or not either of these two men remain involved in the mother’s life, and in what capacity, is unclear.

5. For reasons that only the mother knows, her involvement in these proceedings, and in the lives of her children, lessened during the previous 12 months. Communication between the parties slowed to a trickle and the father eventually stopped taking the children to the arranged handovers when the mother failed to attend for six consecutive weeks.

6. With the exception of an interview for the preparation of a Family Report in December 2013 the mother has not spent time with the children since February 2013.

Court History

1. During the course of these lengthy proceedings care of the children has alternated from one party to the next and it is helpful to set out a brief history of the matter below.

2. The mother commenced proceedings in the Federal Circuit Court in early 2008 with orders eventually made by consent on 12 July 2010. The final orders were effectively a variation on the orders by consent of Federal Magistrate Simpson, as he then was, on 22 June 2009. The orders provided the children would live with each party on a two weekly cycle.

3. Approximately 12 months later the mother reinitiated proceedings by way of an Initiating Application and Application for Contravention filed on 18 July 2011. The father filed a Response to Initiating Application on 1 August 2011. On 1 August 2011 orders were made by consent for the children to remain living with the father and spend time with the mother on each Saturday.

4. The father filed his Amended Response to Initiating Application on 10 August 2011. By way of orders made on 11 August 2011 the children were to be delivered up to the mother and the mother’s contravention application dismissed.

5. In early September 2011 the father filed a Notice of Child Abuse or Family Violence and the Independent Children’s Lawyer (‘the ICL’) was appointed on 8 September 2011. On 8 September 2011 Federal Magistrate Lindsay, as he then was, suspended any order facilitating or authorising the children to live with, spend time with or communicate with the mother citing serious concerns over not just the allegations against the mother’s partner at the time, Mr M, but also “the longstanding animosity, discourtesy, disrespect, hostility that maintains between the two households which these young children have to move back and forth between twice a week”.

6. The orders of 6 October 2011 provided the children spend time with the mother from after school Friday to 5.00pm Saturday and on each alternate weekend from 9.00am Saturday to 5.00pm Sunday. The mother’s time was conditional upon her not leaving the children in the sole care of any other person. The children would live with the father at all other times.

7. On 19 October 2011 the mother was ordered to deliver up the youngest child to the father.

8. A number of trial dates were vacated before proceedings were transferred to the Family Court on 6 July 2012. The orders of 6 October 2011 continued during this period.

9. On 2 October 2013 I suspended the previous orders of 6 October 2011 and further consideration of the parenting arrangements for the children was adjourned until 15 November 2013. I made orders for the father to file any proposed application by 25 October 2013 and the mother to file a response by 8 November 2013.

10. The father filed an application in a case on 25 October 2013. The mother did not file a response.

11. There being no appearance by the mother or her counsel on 15 November 2013 the matter was adjourned noting the mother was to personally attend on the next date.

12. The matter was last before me for mention on 21 January 2014 there being, again, no appearance by the mother or her counsel. On 22 January 2014 the father’s instructing solicitor filed an affidavit in relation to orders made on 21 January 2014 regarding the mother’s non-attendance. Annexed to the affidavit was the correspondence sent to the mother at her last known address, the address she had advised the Court of by way of a Notice of Address for Service filed 2 October 2013. It would appear to be the address of her parents. The mother was previously content to use that as her address for service and I am confident that address is still appropriate. The letter advised the mother of the hearing date and more importantly, advised of the consequences for non-attendance namely orders adverse to her interests.

13. There being no attendance by the mother or her counsel on 6 February 2014 the final hearing proceeded on an undefended basis.

Documents Relied Upon

1. The father relies upon the following documents:

   ·Father’s Amended Amended Response, filed 19 December 2013

   ·Father’s Trial Affidavit, filed 19 December 2013

2. Documents relied upon by the Independent Children’s Lawyer:

   ·Family Assessment Report of Mr C, dated 9 December 2013.

Evidence of Mother

1. The mother did not comply with the trial directions and accordingly there is no affidavit material that the Court was able to consider on her behalf. Obviously I have regard to the mother’s initiating application but there is no other evidence, in respect of the mother’s case, upon which I am able to rely.

2. The mother did however, pursuant to my orders, attend upon Mr C for the preparation of a Family Report on 2 December 2013. I will return to the contents of the report and Mr C’s observations of the mother later in these reasons.

3. Notwithstanding the mother plays no part in proceedings either by way of her 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 mother’s application summarily and making orders in default. It is not simply resolved by finding that the apparent failure to prosecute the action by the mother 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 Family Law Act 1975 (Cth) (‘the Act’).

4. 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.

Evidence of Father

1. The father attended proceedings and in support of orders sought he filed a trial affidavit on 19 December 2013. Notwithstanding that the mother was not present, I considered it appropriate that the father be sworn in and that he present his evidence with formality. Counsel for the ICL took the opportunity to cross examine the father.

2. Cross examination revealed communication between the parties has been, at best, sporadic over the last few months. The father gave evidence that the last contact the mother had with the children was a telephone conversation on 24 December 2013. The mother contacted the father again the next day but an argument ensued, a threat was made against the father, and consequently the mother did not speak with the children. That was the last conversation between the parties.

3. Prior to these two telephone conversations there had been no contact from the mother save for the occasional text message for several weeks. This lack of communication extended to the arranged handovers. The father gave evidence that he eventually stopped taking the children after the mother had failed to attend on six consecutive occasions. It is unclear why the mother failed to attend.

4. On the rare occasion the parties do communicate it is the mother that initiates contact through text messaging or telephone calls. The father says the mother either chooses not to respond to the father’s calls or the telephone numbers are no longer in use. It would appear the father has no way of contacting the mother and has little alternative but to wait for the mother to contact him.

5. The father acknowledged that while he did not want the mother to spend any time with the children “at all”, he would consider supervised time at a Children’s Contact Centre. An order providing for open ended long term supervised contact is not a desirable option given the circumstances of these proceedings and neither party, nor the ICL, sought such an order: see Moose & Moose (2008) FLC 95-375 and Slater & Light (2013) Fam LR 573.

6. Whilst obviously the enquiry of the father was not searching, nonetheless his demeanour and general presentation gave me significant confidence to have regard to those matters raised in his trial affidavit that were both relevant and in a general sense, admissible.

Evidence of Mr C – Family Consultant

1. Mr C has prepared a report dated 9 December 2013. The report provides a summary of the background and relevant issues as they are likely to affect the children.

2. The writer had the benefit of speaking to and assessing the presentation of the mother and her interaction with the children. Mr C’s observations and concerns are outlined below:-

   80. The mother reports a different version of events and portrays herself as a victim, both from the father where psychological abuse has resulted although there is no direct or independent evidence of this. Her victim framework extends to that of Judge Simpson as well as the school principal and the report writer due to process and her aboriginality and gender.

   81. Her relationship status with Mr [P] is considered questionable and the nature of his involvement, that is, as a Carer. It begs the question of on what basis this has been assessed as needed, if at all. The arrangement seems somewhat implausible and the mother’s disclosure was lacking detail or conviction.

   82. Observations of the children suggest that after a 9 month break in contact it was a welcomed reunion. [N] was initially hiding but shortly thereafter readily engaged while [S] appeared less involved which arguably could be attributed to his disability. Worthy of note was [S]’s seeking at various times during the observation of where the father was. The mother appeared attentive and was emotionally and physically available. Her asking questions to [M] about where he wanted to live after such a long absence indicates poor insight and was inappropriate.

3. The father on the other hand “impressed as being passionately child focused” with the writer noting that both children “are in functional routines with the father”. An important consideration given the disabilities of S who, according to Mr C, “will have his needs best met from routine, structure, predictability and avoidance of emotionally charged environments”.

4. Mr C concluded that in the interim the children remain primarily living with the father with weekly or fortnightly supervised visits with the mother at a Children’s Contact Centre. The writer also acknowledged that with communication between the parties negligible it would be difficult to implement any co-parenting arrangement.

5. During the hearing both the ICL and counsel for the father took the opportunity to cross examine Mr C. Of particular concern was the utility of an order which would see the mother spend time with the children “as agreed” between the parties.

6. Mr C had “no confidence” that the parties could successfully work cooperatively to resolve issues relating to the care of the children and “would not speak against” the father having sole parental responsibility of the two children.

7. Similarly, on being informed of the mother’s prior non-attendances, and having now read the father’s trial affidavit, Mr C also doubted whether supervised time with the mother was still a prudent option.

Statutory Framework

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

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

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

4. I am obliged to consider s 60CC of the Act and in particular the primary consideration (s 60CC(2)) and the additional consideration (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. Section 65D provides

   (1)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 orders as it thinks proper.

   …

6. Section 65D(1) is subject to s 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 s 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 where it is uncontested 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 for the parties to have shared parental responsibility. Moreover, I have serious concerns regarding allegations of physical abuse perpetrated by the mother’s previous partner, the alleged criminal history of Mr P and the nature of his current relationship with the mother.

8. Accordingly, the presumption in s 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.

9. I must still apply the relevant provisions of s 60CC of the Act.

10. The children have a close and loving relationship with their father and appear to be well kept and appropriately cared for. The father has been sensitive to the needs of the eldest child and taken all necessary steps to ensure his disability is managed appropriately.

11. I see no evidence that the father would seek to restrict the children’s right to explore and enjoy their Aboriginal culture and none of the orders I make will likely impact on that right.

12. There is no issue as to the father’s ability to provide for the children’s emotional and intellectual needs and their current care is entirely proper.

13. The mother for her part has demonstrated a declining interest in the children and has not taken up the opportunities provided by the orders of this Court. There is little evidence of a meaningful relationship with the children or any intention to form one. It is not likely the mother will participate in the future and, accordingly if orders are made in the terms of the father’s application it is not likely that there will be any significant or dramatic change in the children’s circumstances thereafter.

1. However, I make no orders for the children to spend time with the mother. The level of communication between the parties is such that an order for time “as agreed” is unrealistic, unhelpful and likely to lead to further litigation.

2. Of course should the mother seek to take a more active role in the children’s lives these orders do not preclude the parties from reaching an agreement as to time spent with the children independent of this Court. It does however limit any disruption to the children should an agreement not be reached and provides a much needed sense of stability.

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

I certify that the preceding fifty eight (58) paragraphs are a true copy of the  reasons for judgment of the Honourable Justice Berman delivered on 18 February 2014.

Associate:

Date:  18 February 2014