Stiles & Anor and Spence & Anor
[2014] FamCA 384
•11 June 2014
FAMILY COURT OF AUSTRALIA
| STILES AND ANOR & SPENCE AND ANOR | [2014] FamCA 384 |
| FAMILY LAW – CHILDREN – Final Orders - undefended hearing – where neither the applicants nor the second respondent participated in final hearing – respondent mother sought orders for sole parental responsibility – hostile relationship between all parties – previous shared care arrangement had failed – best interests of the child – child to live with mother who shall have sole parental responsibility. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA, 65DAA |
| Aldridge & Keaton (2009) 42 Fam LR 369 Allesch v Maunz (2000) 203 CLR 172 Haydon & Bennett and Anor [2012] FamCAFC 89 Sexton & Sexton [2012] FamCAFC 218 Sinnott & Firth (No. 2) [2013] FamCAFC 159 Valentine & Lacerra and Anor (2013) FLC 93-539; 49 Fam LR 255 |
| APPLICANTS: | Mr T Stiles and Ms J Stiles |
| 1st RESPONDENT: | Ms Spence |
| 2nd RESPONDENT: | Mr S Stiles |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 3822 | of | 2011 |
| DATE DELIVERED: | 11 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 19 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Childs (leave granted to withdraw on 1st day of trial 19 May 2014) No appearance of Litigant |
| SOLICITOR FOR THE APPLICANT: | The Family Law Project (leave granted to withdraw on 1st day of trial 19 May 2014) |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Lee |
| SOLICITOR FOR THE 1ST RESPONDENT: | Denise M Rieniets & Associates |
| COUNSEL FOR THE 2ND RESPONDENT: | N/A |
| SOLICITOR FOR THE 2ND RESPONDENT: | No Appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That all previous 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 child B born … 2007.
That the said child live with the mother.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
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 Stiles and Anor & Spence and Anor 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 3822 of 2011
| Mr T Stiles and Ms J Stiles |
Applicant
And
| Ms Spence |
First Respondent
And
Ms S Stiles
Second Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings relate to parenting issues in respect of the child B, (“the child”) born in 2007. The proceedings have a unique feature in that the respondent mother is the only party with a biological connection to the child.
At the commencement of proceedings the second respondent believed he was the biological father but Court ordered paternity tests carried out in late 2011 revealed he had been labouring under a misapprehension. The identity of the biological father is still not known or at least has not been disclosed to the Court.
Notwithstanding this revelation the second respondent’s parents continued their application for parenting orders. They were entitled to do so pursuant to s65C(c) of the Family Law Act 1975 (Cth) (‘the Act’) as persons concerned with the care, welfare or development of the child.
By way of an Initiating Application filed 12 October 2011 the applicants sought orders that they have sole parental responsibility for the child who would live with them. The proposed orders provide for the child to spend time with the mother and second respondent as agreed between the parties.
In a Response filed 21 October 2011 the mother sought orders that she have sole parental responsibility, the child live with her and spend time with the applicants at times as agreed between the parties. That position has since altered and the mother’s case outline document now makes no provision for the child to spend time with the applicants or the second respondent.
By way of an Amended Response filed 20 September 2013 the second respondent sought orders that would see the child live with the applicants who would have sole parental responsibility and spend time with the mother as determined by this Court. The proposed orders also provide for the child to spend time with the second respondent as agreed but failing agreement, for no less than two nights each fortnight.
The level of conflict between the parties is high and the only point of agreement lies in their mistrust for one another.
Ultimately, the matter proceeded without the applicants or the second respondent being involved in proceedings. There is nothing to suggest why they did not attend but as will become apparent, I am satisfied that they were both aware of the proceedings and had every opportunity to be involved.
Background
The mother and second respondent commenced a relationship in 2003. The facts surrounding the nature and duration of the relationship are contentious but it is apparent the relationship was pitted with periods of separation and reconciliation before it eventually came to an end in 2006 shortly before the birth of the child.
Save and except a brief period in 2007 the applicants and second respondent lost contact with the mother following the breakdown of the relationship and did not spend time with the child for approximately two years.
The applicants were reunited with the child in 2009 and claim they were the child’s primary carers up until 2011. The mother strenuously denies this but admits the applicants did on occasion babysit the child.
Proceedings commenced in late 2011 when the applicants filed an Initiating Application in the Federal Magistrates Court (as it then was). On 25 October 2011 Federal Magistrate Cole (as he then was) made orders for the child to live with the mother and applicants in what was effectively a week about arrangement. The child and parties were also ordered to undergo a parentage testing procedure.
The matter was listed for trial in August 2012 but upon counsel noting the length of trial was estimated to take in excess of six days the matter was transferred to the Family Court of Australia.
The mother has two young children with her current partner Mr C. In April 2013 it was alleged Mr C had assaulted the child. The child was placed with the maternal aunt, Ms D, for a period of three months while Families SA investigated the incident. The investigation has since been closed and the charges against the mother’s partner withdrawn in late 2013.
In November 2013 the applicants withheld the child from the mother for approximately one week during the school term.
Following the child’s return to his mother the handovers became increasingly difficult with the applicants either failing to attend or refusing to take the child on several occasions. The mother filed an Application in a Case in December 2013 seeking the shared care arrangements be suspended.
In February 2014 I made orders for the child to live with the mother and that the applicants and second respondent’s time with the child be suspended. I made further orders in March 2014 that the child live with the mother and spend time with the applicants each alternate Sunday from 10am until 4pm.
The matter was listed for trial as a five day matter commencing 19 May 2014.
On the Friday prior to the final hearing the Court received correspondence indicating the applicants’ solicitors, and counsel, would seek leave to withdraw from the file at the commencement of the final hearing and that their clients had been informed of same.
On the morning of the first day of trial counsel for the applicants informed the Court his instructing solicitors had been unable to obtain adequate instructions and that correspondence with the applicants had gone unanswered for some time now. Counsel for the applicants assured me that his clients were both aware of the final hearing and the consequences of their non-attendance.
There was no appearance by or on behalf of the second respondent although the Court received no explanation for his absence.
Out of an abundance of caution I stood the matter down while attempts were made to contact the applicants and the second respondent. Despite the repeated attempts of the Court neither the applicants nor the second respondent could be contacted. The lack of engagement in the proceedings appears deliberate, but in any event, is without explanation.
Accordingly, I granted leave for the applicants’ solicitors and counsel to withdraw and the hearing proceeded on an undefended basis.
Documents Relied Upon
The mother relies upon the following documents:
·Response to Initiating Application filed 21 October 2011
·Affidavit of the mother filed 8 April 2014
·Affidavit of Mr C filed 8 April 2014
·Affidavit of Ms A filed 8 April 2014
The Independent Children’s Lawyer (‘the ICL’) relies upon the following documents:
·Report of Mr E dated 2 March 2012
·Report of Mr E dated 27 February 2014
·Families SA Report dated 30 September 2013
Evidence of the Applicants & Second Respondent
The applicants and, to a lesser extent, the second respondent filed affidavit material in compliance with my trial directions and I have had regard to that which is of an uncontroversial or corroborative nature to the extent their affidavits may be considered as part of the history of this matter.
Notwithstanding the applicants and the second respondent play no part in proceedings by way of their physical appearance, nonetheless I do not consider that this matter is dealt with appropriately by simply dismissing their application summarily and making orders in default. It is not resolved by finding that the apparent failure to prosecute the action by the applicants and second respondent 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 s60CC of 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, Haydon & Bennett and Anor [2012] FamCAFC 89 and Sinnott & Firth (No. 2) [2013] FamCAFC 159.
Evidence of the Mother
The mother attended proceedings and in support of orders sought she filed affidavit material upon which she now relies.
Opportunity was given to the counsel for the ICL to cross-examine the mother but that did not occur. While I am mindful of simply accepting the uncontested evidence of the mother in circumstances where neither the applicants nor the second respondents were present, I am however entitled to take into account that counsel for the ICL chose not to cross examine the mother in circumstances where the opportunity existed to do so.
I note counsel for the ICL supported orders being made in the terms proposed by the mother in her case outline document.
Reports
2012 Family Assessment Report
An initial report was prepared by Mr E on 2 March 2012 following observed interactions and interviews with all parties.
The interviews uncovered two positions so extreme that the writer formed the view that one of the parties was clearly attempting to mislead the Court. While unable to make a recommendation he did note that:
One possibility to resolve this conflict would be to place [the child] in a shared care arrangement between the parties. This would be an unrealistic and impractical arrangement for this child. Any good will that has existed between the parties has evaporated. There is no understanding or respect between the parties. Their relationship would appear to be one of mutual loathing. There are no shared parenting values or beliefs between them. A shared care arrangement would only lead to an escalation of conflict and competition between the two households. This is of no advantage to [the child]. [The child] would have to endure the burden of a dysfunctional, destructive care arrangement. This would be of no benefit to this child.
Sadly, a shared care arrangement was implemented with results not dissimilar to that predicted by Mr E.
Families SA Report
The report dated 30 September 2013 revealed Families SA received in excess of 20 notifications since proceedings were initiated in the Federal Magistrates Court (as it then was). Only one notification was received prior to the commencement of proceedings.
Once again the hostile relationship between the parties and their ability to effectively implement a shared care arrangement was called into question:
[The child] is currently being pulled between two warring parties each fighting for sole guardianship rights of [the child]. This animosity is clearly having a negative emotional impact on [the child] and his emotional wellbeing.
…
Families SA have long held the view that the 50% shared care arrangement is not in [the child’s] bets interest. For some family groups this arrangement of equal shared caring may work well. In this case however, with the particular adults involved and their strong animosity towards each other, it has not worked well. It is Families SA’s opinion that [the child] urgently needs one place to call his home; he is not coping with the back and forth arrangement and the polar views of both parties. Equal shared care arrangements can be confusing and unsettling for children, as is clearly the case where [the child] is concerned.
While the report indicates some level of concern in both households Families SA did not identify any risks to the child “that would be considered insurmountable”.
The mother and her partner have been working closely with Families SA since August 2013 via the ‘Connecting Families’ program. The report notes the family, the mother and Mr C, now have “the capacity to make the desired changes in order to ensure the safety and stability of [the child] and his siblings”.
The child consistently indicated a preference for his mother and Mr C and chose not to include the applicants. While clearly not determinative it is some indication of the child’s views.
Families SA ultimately recommended the child live with the mother and, should the child wish this to occur, spend time with the applicants on alternate weekends or during school holidays.
2014 Family Assessment Report
An updated report was prepared by Mr E on 27 February 2014.
The child expressed a desire to live with his mother, siblings and “Dad”, referring to Mr C in this instance. The child was reluctant to visit the applicants and second respondent and was anxious that they would “keep him”.
Mr E acknowledged that the child would appear to have a good relationship with the applicants and second respondent noting that he interacted with them in “a confident, familiar and affectionate manner” and was “very much at ease in their company”.
Somewhat troublingly the child has adopted different labels for the parties depending on which house he is living in at the time. At the mother’s home the applicants and second respondent are referred to as “[the applicant’s given names]” and “[the second respondent’s given name]” while at the applicants’ home they are referred to as “Nan, Grandpa and Dad”.
The utility of the existing shared care arrangement was again criticised:
There are significant pressures on [the child] as he moved between the households. [The child] would appear to have a good relationship with all of the adults. For a small child it is a problem if all the people that they like and love don’t like and love each other. For a small child moving between two hostile worlds it is a frightening prospect. A child has to be careful and cautious that they are not seen by one household as favouring the other. They have to be careful in how they talk about the parties to each other. A small child has to be careful that they are not seen by one or both parties as letting them down or betraying them. This is an enormous emotional burden for a child as young as [the child B].
Mr E recommended that the child be placed in the primary care of either his mother or the applicants after noting that the shared care arrangements was not only untenable but “an abusive situation”.
Statutory Framework
When considering an application for parenting orders by a person interested in the care, welfare or development of a child, 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.
Where the Act contains specific references to “parents” it is not intended to extend to parties or third parties who are not the parents of the subject child (Aldridge & Keaton (2009) 42 Fam LR 369).
Notwithstanding the restrictions outlined above, the Full Court in Valentine & Lacerra and Anor (2013) FLC 93-539; 49 Fam LR 255 noted at 43:
The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration…
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.
Pursuant to s 60CA the Court must have regard to the best interests of the child. As already noted above, that consideration is paramount.
I am obliged to consider s 60CC of the Act and in particular the primary consideration (s 60CC(2)) and the additional consideration (s60CC(3)).
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.
….
Section 65DA(1) is subject to s61DA of the Act. This section requires the Court to apply a presumption that it is in the best 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 best interests of the child.
The evidence in this case where it is uncontested and by reference to the matters raised by the Family Consultant, Families SA and supported by the ICL, enable me to find that it would not be in the best interest of the child for the parties to have equal shared parental responsibility.
Accordingly, the presumption in s 61DA is rebutted and it is not intended that any parenting order will provide for the parties to have equal shared parental responsibility.
I must still apply the relevant provisions of s 60CC of the Act.
I do not doubt that a significant emotional relationship exists between the applicants, the second respondent and the child. However, it is evident from the reports of Mr E and Families SA that maintaining those bonds has become a burden for the child.
There is a real and distinct possibility, and indeed probability, that the child will continue to suffer significant emotional distress if he is to continue to spend time with the applicants and second respondent. The need to protect the child from physical or psychological harm is a primary consideration.
The child has a close and loving relationship with his mother, Mr C and his siblings and has indicated a preference to remain with his biological family.
Acknowledging the need to ensure the child’s psychological wellbeing the mother organised a Mental Health Care Plan and since late last year she has arranged for him to see a counsellor on a fortnightly basis. The ‘Connecting Families’ report dated 21 November 2013 describes the mother as “cooperative, committed, open, motivated and receptive to feedback”. The mother has taken advantage of the opportunities provided to her to develop her parenting skills and I am satisfied that the mother is able to provide for the child’s emotional and intellectual needs.
Given the circumstances of the case and the appalling relationship between the parties, I do not consider that there is any alternative other than that the mother have sole parental responsibility in respect of the child.
Accordingly, I make orders as set out at the commencement of these reasons.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 June 2014.
Associate:
Date: 11 June 2014
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