SULLIVAN & LITTLE

[2015] FamCA 71

FAMILY COURT OF AUSTRALIA

SULLIVAN & LITTLE [2015] FamCA 71

FAMILY LAW – PARENTING – Non-attendance by Father – Child to live with the Mother – Child shall not spend time with the Father.

APPLICANT: Mr Sullivan

RESPONDENT: Ms Little  

INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family & Animal Law

FILE NUMBER: BRC 2397 of 2012

DATE DELIVERED: 10 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10 February 2015

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr L.E. Smith of Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Couper of Couper Geysen Family & Animal Law

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS BY WAY OF FINAL ORDER THAT

1. The child, B born … 2007, live with the mother.

2. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the child with such issues to include but not be limited to:

   a.the child’s education;

   b.the child’s religious and cultural upbringing; and

   c.the child’s health.

3. The child shall not spend time with the father.

4. The Independent Children’s Lawyer is discharged.

NOTATION

A.The Court’s determination that an order the child not spend time with the father is in her best interests follows the father filing a Notice of Discontinuance on 3 November 2014 after he stopped spending supervised time with her in September 2014. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Little 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 BRISBANE

FILE NUMBER: BRC 2397 of 2012

Mr Sullivan

Applicant

And

Ms Little

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. Authority like Allesch & Maunz clearly establishes that where a person’s interest may be adversely affected by a Court’s decision, that person must be afforded an opportunity to place before the Court material, information and submissions before a decision is made.  The concept of procedural fairness encompasses the indispensable requirement of our system of justice: that a party being affected by a decision must have the opportunity to be heard in relation to it. 

2. In saying this, as was emphasised by Kirby J in Allesch & Maunz, it is the opportunity to be heard which is the essential requirement for procedural fairness to have been afforded to a party, and not that the Court must receive evidence or submissions by a party before making orders. 

3. As his Honour said, at paragraph 38 of his Judgment in that case:

   Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

4. The material before me persuades me that the father has had an opportunity to appear to be heard in relation to the parenting orders for his daughter, B, born in 2007.  I arrive at this conclusion for the following reasons.

5. On 21 January 2015 I conducted a prehearing mention of the matter.  On that occasion, given that the father had filed a Notice of Discontinuance on 3 November 2014, I required that Mr Couper, the Independent Children’s Lawyer, write to the father to tell him that, if the Court did not receive an indication from him that he wished to proceed with his application for parenting orders and remain involved in the matter by 4 pm on 4 February 2015, I would proceed to determine the matter on an undefended basis at 4.30 pm on 6 February 2015. 

6. In compliance with my order and the request made by the Court, the Independent Children’s Lawyer forwarded correspondence to the father on 22 January 2015.  This was sent to the last address the Independent Children’s Lawyer had for the father.  The contents of that correspondence clearly and simply outlined the terms of the order I had made.  The Independent Children’s Lawyer also enclosed a copy of the submissions provided by the mother’s legal representative on 23 January 2015, a copy of the Case Outline filed on behalf of the mother on 20 May 2014, (containing the orders sought on a final basis), a copy of the affidavit filed by the mother on 20 January 2015 and a copy of my order. 

7. The father has not subsequently contacted the Court in the manner required by that order, or at all. 

8. Mr Smith, who appears on behalf of the mother this morning, informs the Court - and I accept - that he, too, forwarded correspondence to the last address available to him, informing the father of the matters outlined above, (or at least some of them). 

9. That the father has chosen not to take advantage of the opportunity to appear and be heard in relation to those parenting orders which are in his daughter’s best interests is entirely a matter for him. 

10. In the circumstances, I intend to proceed as I indicated I would when I made the order on 21 January 2015 – that is, to consider the matter on an undefended basis and to make parenting orders in relation to the child.

11. Whilst the mother had earlier advanced the proposition that the child live with her, she have sole parental responsibility for her and that the child spend supervised time with the father for two hours at the C Town Contact Centre, her position now is that the Court should order the father spend no time or communicate with the child, given his withdrawal from the proceedings.  The mother’s affidavit, filed 20 January 2015, outlines that her position changed because, in about September 2014, the father ceased spending supervised time with the child without providing any reason for such decision. 

12. The mother asserts that, when the child found out she didn’t have to go to the Contact Centre to spend time with her father any more, she was “ecstatic and relieved”.  Whilst it may very well be that the child expressed such a sentiment to her mother, the evidence from the Contact Centre of her interaction with her father during supervised visits which occurred before September 2014 suggests that such comments do not reflect her true feelings toward him.

13. The mother deposes that she seeks an order that the child have no contact whatsoever with her father and, if she does have contact with him, it only ever be supervised at a Contact Centre.  She says that, if he is interested in receiving information about the child’s progress, she is agreeable to providing him with such information, upon receipt of such a request, on the basis this occur at a frequency of no more than two occasions each calendar year. 

14. B is the only child of her parents’ relationship.  Their relationship commenced in about June 2005 and ceased in about 2010/2011.  Both parents have previously attempted suicide.  The case involves allegations that the father had raped and physically assaulted the mother in the presence of another child; had allegedly assaulted his sister’s child and had assaulted the child.  the child has a 16 year old half-sister, D, born in 1998, with whom she has always lived.  That child also alleges she suffered harm consequent upon the father’s actions toward her. 

15. Whilst the parties originally filed an Application for Consent Orders in relation to parenting issues for the child on about 21 March 2012, deficiencies or defects in the terms of those proposed orders led to a requisitioning by a Registrar of this Court.  The request and requisition was, seemingly, not answered by either party, with the consequence that, on 28 June 2012, a Registrar dismissed the Application. 

16. The mother’s case, as I’ve alluded to already, involves an allegation that, in about October 2011, the father abused the child in the manner particularised in a Notice of Child Abuse or Risk of Family Violence filed on her behalf.  The allegations of abuse were reported to both the Department of Child Safety, (by whatever name it was then known), and the Queensland Police Service. 

17. B did not spend time with her father during the six-month period from October 2011.  After that, it appears the mother permitted the child to have short periods of supervised time with her father. 

18. In about September 2012, the mother moved with the children to live in New South Wales.  The father remained living in South-East Queensland.  The father commenced proceedings in the Federal Magistrates Court of Australia (as that Court was then known) in February 2013.  The mother filed a Response in April 2013. 

19. On 3 April 2013, an Order was made for the child to live with her mother and spend supervised time with the father at the C Town Contact Centre.  It was at that time that an Independent Children’s Lawyer was appointed and the matter transferred to this Court.

20. The evidence suggests that, in about September 2013, the father started spending regular supervised time with the child for visits of up to two hours per fortnight at the Contact Centre.  The evidence also suggests that the visits proceeded very well, at least until September 2014.  

21. Subsequent investigations were undertaken and family reports and psychiatric reports prepared as a consequence of the proceedings being on foot.  The most recent Family Report was filed in late September 2014. 

22. In September 2014, as I have already said, the father stopped spending time with the child at the Contact Centre.  According to the evidence, he has not had any time or communication with her since then.  The mother’s evidence is clearly to the effect that she does not know why the father has acted as he has.  There is no evidence before the Court to add any further clarity to or explanation for the decision he has taken. 

23. On 3 November 2014, the father filed a Notice of Discontinuance in relation to the Initiating Application he filed in February 2013. 

24. It is accepted that there are no current family violence orders in existence between the parties, although, as I’ve noted, varying allegations of family violence have been made in affidavit material.  It is also accepted that there has been no recent involvement between the parties, the child and either the Department of Communities, Child Safety and Disability Services, or the Queensland Police Service.

25. It is clear from the updated Family Report prepared by Ms E (filed on 24 September 2014) that she assesses the parents in this matter as unable to co-parent.  Her opinion is that they are, at best, parallel parenting. 

26. In such a circumstance, it appears to me to be well established that, even if the presumption of equal shared parental responsibility applied, it could not be thought to be in the child’s best interests for an order to be made which required her parents to make decisions about major long-term issues in relation to her jointly.

27. Whilst there may have been criticisms open to the father to make in relation to the mother, her parenting capacity and the manner in which she is likely, or unlikely, to support any relationship he may have had with the child into the future, the fact that he has chosen to file a Notice of Discontinuance means that he has also chosen not to advance such propositions. 

28. I take into account the contents of the submissions filed on behalf of the mother.  To the extent that it is necessary, I accept the tenor of those submissions to the effect that it is in the child’s best interests she live primarily with her mother, (as she has always done), and that her mother have an order for sole parental responsibility in relation to the major long-term issues for her.

29. I note that, after interviews in August 2014, Ms E outlined in the most recent Family Report, (erroneously dated 19 September 2013), that the issues between the parties were not about the child’s primary living arrangements but, instead, focused on the arrangements for her to spend time and communicate with the father.  In particular, the dispute had, it seems, narrowed to whether her time with him in the future occur on a supervised basis or not.  The issue of the allocation of parental responsibility also remained in dispute at that time. 

30. The contents of Ms Matthew’s most recent Family Report provide a summary of the child’s interaction with the father at the Contact Centre.  These include that the child:

    a)has told him that she loved him very much and missed him;

    b)expressed physical affection toward him and, according to the supervisor, had a lot of laughter and joy in her visits with her father;  and

    c)was observed to draw out goodbyes - by that I conclude she extended them and acted in a way that suggested she did not want the father to leave. 

31. It is also clear that, after a potential dispute between her parents in relation to whether the father’s current partner could become part of her supervised visits with her father, the child attended at the next visit and behaved in a manner significantly at odds with the observed behaviours of previous visits. 

32. Ms E reported the child telling her during her most recent interaction for the preparation of the most recent Family Report that:

    a)she did not like seeing her father at the Contact Centre,

    b)didn’t like seeing him at all and didn’t like his face;

    c)he made her feel stressed, angry and frustrated. 

33. She called him by his Christian name rather than ‘daddy’ and said she didn’t call him daddy because he put “the whizzies” in her bum. 

34. B demonstrated, according to Ms E’s report, dramatic over-the-top behaviour during her interaction with Ms E.  She told Ms E that her mother doesn’t like her father’s face and that she (B) preferred he come up the front stairs to Ms E’s rooms so her mother didn’t get to see him because, if she did, she would be so angry she would kick his face. 

35. Additionally, the child wrote “I do not like [Mr Sullivan] one bit” on a whiteboard that Ms E had available to her. 

36. Despite making all of the comments to which I have referred and exhibiting the behaviour reported by Ms E in her report, when the child saw her father in Ms E’s presence she ran over to hug him and offered his partner a hug.  Her behaviour and interaction during the observation session with her father was such that Ms E recorded her conclusion of a warm relationship between the child and her father, that they chatted readily and engaged in much laughter, that the child called him ‘dad ‘and appeared sad when told the session was nearly at an end.  Ms E also records that the child told her father she loved him and he reciprocated by telling her he loved her. 

37. Towards the end of the session Ms E records that the child ran over and whispered to her father, “Mum’s here.  She doesn’t like you” to which he replied, “I know.  See you later”.  Ms E saw the child go back to her mother to report “Guys, just to let you know, [Mr Sullivan] is here”. 

38. Ms E concluded the parents had not progressed in their ability to work together as parents and that the child’s mother presented as having become more entrenched in her negative view of the father.  She opined that the mother had demonstrated an unshakeable view he had sexually abused the child and remained strongly opposed to contact between the child and her father.  Ms E assessed that the mother was unable to work with her father in co-parenting and that her attitude posed a barrier to her genuinely facilitating a relationship between the child and her father. 

39. In contrast to this, Ms E’s opinion is to the effect that the father’s attitude toward the mother presented as more accepting than her attitude toward him.  Ms E concluded that the manner in which the child’s parents were parenting her placed stress on the child because it left her in a position where she, the child, had to make adjustments as she moved between households.  Ms E also concluded the child was well aware of the tension between her parents and had demonstrated this by taking control of the situation when the other was present.  Ms E further assessed that the child’s comments have been strongly influenced by her mother’s attitudes. 

40. In terms of the child’s long term emotional welfare, Ms E said it was concerning to note the complete change in the child’s behaviour and presentation between her comments during her individual session and her behaviours during her observation session. 

41. I accept Ms E’s opinion and assessment that the child has an underlying positive relationship with her father.  I accept her conclusions about this were reinforced and, in essence, corroborated by the observations of the Contact Centre of the child’s time with him there.  Ms E concluded from the manner in which she thought the child acted to avoid further questions - that is, by falling down claiming she was stressed - that not only has she been exposed to parental conflict, but she has been adversely affected by it. 

42. I record Ms E’s notation, as contained in her report, that the allegations the father has sexually abused the child have been investigated by appropriate authorities and found to be not substantiated. 

43. I accept Ms E’s assessment that the child has had, or at the time she undertook her interviews and observations a meaningful relationship with her father and that she enjoyed time with him.  I also accept Ms E’s opinion to the effect, that whilst the child may cope with extended and unsupervised time with her father, there was a risk she would be distressed by her mother’s reaction to the same. 

44. I accept Ms E’s recording of the information, seemingly provided by both parties, that previous telephone communication between the child and her father broke down: the father asserted the mother had pressured the child and he stopped calling to reduce the pressure on the child. 

45. In circumstances where the most recent Family Report evidences a good relationship between the child and her father, that she enjoyed her time with him at the Contact Centre and expressed love and affection for him, I was concerned about the mother’s proposition that an order for no time between the child and her father positively be made. 

46. I had given consideration to making no order for time in the circumstances but, conscious of the fact that I had not at the time I initially intended to deliver this judgment afforded to the parties the opportunity to be heard in relation to such a proposition, adjourned that matter to today.  I have now had the benefit of receiving further submissions from Mr Smith on behalf of the mother and from the Independent Children’s Lawyer.

47. I record that I had given serious consideration, because of the contents of Ms E’s report, the matters to which I have referred thus far in these Reasons and the matters apparent from a perusal of the transcript of the interaction between the bench and the legal representatives this morning, to simply making an order that there be no order in relation to the child’s time with the father. 

48. However, I take into account the submissions made by Mr Smith on behalf of the mother.  It seems to me that the appropriate course - and one that is in the child’s best interests – to make an order that there be no time between the child and her father but record in a notation to that order that it was made as a consequence of the father’s determination to file the Notice of Discontinuance in November 2014 following his determination in September 2014 to cease supervised time with her. 

49. I record, again, that the contents of Ms E’s Family Report are such that, even accepting the concerns outlined in the mother’s material, it may well have been - had the matter proceeded to final hearing - that I would not have been persuaded that it was in the child’s best interests to make an order that there be no time between her and her father. 

50. This case may very well have been one in which the Court was persuaded, given the child’s age, the strong relationship evidenced in her interaction with the father during supervised visits and Ms E’s assessment of the strength of the relationship and the level of attachment between them, that the child’s best interests would have been met by an indefinite supervision order.  In that way, the child would have been afforded an opportunity to continue a relationship with her father, (albeit within the constraints consequent upon supervision) rather than simply having him removed from her life. 

1. However, as is clear the father has determined himself at this stage to remove himself from the child’s life, for whatever reason. 

2. I had also given consideration to making an order that the child’s time with the father occur in a manner agreed between the parents but the contents of the Family Reports clearly establish that it is highly unlikely - in fact, almost a certainty - there would be any agreement in the future between the child’s parents about her time with her father.  Whilst another option was, of course, simply to make a long term supervision order, I cannot be at all confident - in circumstances where the father has filed a notice of discontinuance - that there will, in fact, be any future attempt by him to spend time with the child nor, importantly, could I be confident about the circumstances attendant upon her life at a time that any future attempt, if made, occurs. 

3. In such circumstance, I am not persuaded that an order, capable of implementation at an indefinite time in the future, would, at that time, be one which was in the child’s best interests. 

4. For these Reasons then, I have concluded that the following orders are in the child’s best interests and I make orders in these terms.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 February 2015.

Associate: 

Date:    10 February 2015