Stanley and Hedges

[2007] FamCA 347

FAMILY COURT OF AUSTRALIA

STANLEY & HEDGES [2007] FamCA 347

FAMILY LAW - CHILDREN – Undefended - Best interests – Sole parental responsibility – Family violence

Family Law Act 1975 (Cth) - Section 60CC

APPLICANT: Mr Stanley

RESPONDENT: Ms Hedges

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1199 of 2006

DATE DELIVERED: 16 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Derewlany

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Bowler

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Hume Taylor & Co

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Stanley and Hedges

Orders

1. Orders made in terms of the minutes this day signed by me.

1. Remove all matters from the pending list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1199  of 2006

Mr Stanley  

Applicant

And

Ms Hedges

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which concerns the welfare of two children, a daughter who was born in December 1992 and is therefore aged 14, and a son who was born in August 1994 and is therefore aged 12.

2. The parties appear to have separated in late 2003 and after the separation the children spent considerable time with the father.  Matters, however, reached a significant stage in May 2006 when an incident occurred.  After that time the mother has not provided the father with any time with the children.  As a result, he commenced proceedings in August of 2006.  The matter therefore comes on before me for hearing today under the less adversarial trial process, in accordance with the provisions of the amended Act and in particular the provisions of Division 12A.

3. The mother filed a response to the father's proceedings in October 2006.  There have been interim orders made in the proceedings to date.  One of the significant orders resulted in the family assessment report of 26 February 2007, which has now been filed in the court annexed to the affidavit document 18.

4. The report of Dr C, the psychologist appointed to carry out the assessment, is detailed and sets out certain findings after Dr C interviewed the parties and each of the children.  He also had access to the affidavit material which had been filed in the Family Court at that time.

5. The matter comes on before me today having been listed as the first day of the trial, pursuant to the new processes.  The parties were informed of the listing for trial.

6. On 4 April 2007 the father filed a Notice of Discontinuance, discontinuing all his proceedings.  He has not attended today.

7. The matter therefore is appropriately dealt with by me on an undefended basis.  I have heard submissions from the counsel for the mother and counsel for the Independent Children's Lawyer.

8. They have referred me to significant documents on file, including the affidavit of the mother, document 8, which was filed on 19 October 2006, the report of Dr C, which I have also mentioned, and other affidavit material of the mother referring to further Activities reported to her which have given her cause to be concerned about the father's behaviour; namely, his attendance at a shopping centre seeking information about the daughter.

9. I have taken into account those matters and in particular place significant reliance upon the report of Dr C.  He is a well-qualified, experienced psychologist who has taken into account the various issues raised by the parties in their documents, including the father's insistence that the children are behaving the way they are as a result of influence of the mother.  He has particularly taken into account this allegation of the father.  It is indeed one of the matters which I have to take into account when considering what is in the best interests of the children; namely, the capacity of the parties to encourage an appropriate relationship with the other parent.

10. I also take into account that the Independent Children’s Lawyer appears today, before me, in support of the orders sought by the mother.  Specifically, the orders sought by the mother are that both children live with her and that she have sole parental responsibility for the children's day-to-day and major long‑term issues, and that there be certain injunctions against the father restraining him from certain Activities.

11. The provisions of the Family Law Act require that I give consideration to the children's welfare, and in particular consider whether it is in the children's best interests to make an order which gives one parent sole parental responsibility. The provisions of the Act clearly indicate that any presumption does not apply if there are findings made, that those orders would not be appropriate due to issues of violence and other reasons.

12. Taking into account the material that I have read, in particular the affidavit of the mother and the report of Dr C, I am easily satisfied that it is inappropriate in this case for there to be any presumption of shared parental responsibility.  My obligation is also to consider whether there should be equal time, substantial time, or significant time, spent with each parent in certain circumstances. 

13. Taking into account the provisions of the Act, I am satisfied that it is not appropriate in these circumstances for any such presumptions to apply, nor do the separate Acts in this matter indicate that it would be in the best interests of the children for there to be an order that they spend time with their father, whether it be significant, substantial, or indeed any time at all.

14. I turn to the consideration of the material in section 60CC, which directs me in relation to consideration of what is in the best interests of the children.  The primary considerations are that I must consider the benefit to the children of having a meaningful relationship with both parents, and the need to protect the child or the children from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence. 

15. I am satisfied, from the material before me (not only the mother's affidavit but the remarks made by the children to Dr C and Dr C’s findings, that there was nothing in their interviews with him which indicated that their attitude was based on influence from the mother) that this is a case in which there is a significant need to protect the children from the harm that they might be exposed to, abuse or family violence, if an order were made requiring the mother to make arrangements for the children to spend time with the father.

16. Under the additional considerations, one of the significant factors is the views expressed by the children and the factors that are relevant to the weight that should be given to the children's views.  The children are now 12 and 14 and have expressed their views to Dr C.  Their views seem to be backed by factual experiences and relate to their concern about their father's poor behaviour and attitude towards them and the mother.  In particular, the report sets out, under each interview with the children, the children's recollections and comments about their father's behaviour.  Specifically, the daughter was quite clear and the son was less forceful and inconclusive, but also clear about his wishes.

17. In the report, Dr C specifically says that:

    “The father clearly holds the view that the main reason the children have not been seeing him since 22 May 2006 is because of the malevolent influence of the mother on them and the facts that others have been pissing in their ear.”

18. Dr C’s report continues:

    “However, I found little evidence that the mother's attitude to the father was even a major factor in the children's own attitudes towards seeing their father.  It has been their own exposure to the father, his treatment of them, their mother and other members of her family that has most eroded any residual goodwill toward the father.  They regard him as out of control and angry, on a sufficiently reliable basis, and without great cause, to make it dangerous, from an emotional point of view, to spend time with him.  Both expressed relief that they have not had to confront this level of pressure and tension in their lives.”

19. I am satisfied that Dr C has sufficiently considered the father's explanation for the children's attitude and has discounted it.  Bearing in mind the children's ages and the circumstances of this matter, it is, I think, a matter to which significant weight should be given.  I acknowledge that the end result of this may be that until such time as the father can demonstrate to the children that his behaviour and attitude has changed that this will significantly impact upon their relationship with one of their parents.

20. I take into account the other factors in section 60CC and in particular those subsections dealing with family violence.  Obviously I also take into account that the father has discontinued these proceedings, and, notwithstanding an earlier indication this year that he was participating in counselling in relation to his attitude and behaviour, he has not seen fit to continue the proceedings.

21. The mother has sought orders in particular that the father be restrained from attending at her home, that of her parents or her siblings.  In view of the affidavit material about the behaviour of the father towards those relatives of the mother, I am satisfied that that also is an appropriate order to be made in these circumstances.  I therefore make the orders which I now sign.

22. Taking all of those matters into account, I am therefore satisfied that the orders sought by the mother are in the best interests of the children. 

I certify that the preceding twenty-two  (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 April 2004