Sully and Exelmans

[2008] FamCA 770

FAMILY COURT OF AUSTRALIA

SULLY & EXELMANS [2008] FamCA 770

FAMILY LAW  -  CHILDREN  -  Magellan  -  No appearance by or for applicant father  -  No evidence child at risk  -  Final orders  -  Applicant may apply to set aside within fourteen days.

Family Law Act 1975 (Cth)

FATHER: MR SULLY

MOTHER: MS EXELMANS

FILE NUMBER: TVC 568 of 2008

DATE DELIVERED: 22 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 22 August, 2008

REPRESENTATION

THE FATHER: No appearance
c/- Nelson Lawyers

SOLICITOR FOR THE RESPONDENT: Cohen Kirby & Iser

INDEPENDENT CHILDREN'S LAWYER: Hale & Smith

Orders

1. That all previous parenting orders and injunctions relating to the child T born … February, 2004 be discharged. 

2. That the mother and father have equal shared parental responsibility for T.

3. That T live with the mother and she have sole responsibility for decisions relating to his day to day care, welfare and development. 

4. That the father spend such time with T as is agreed between the parties and it shall be in the absolute discretion of the mother as to whether time the father spends with T is supervised and by whom. 

5. That a copy of these orders be served on the father by sending them by ordinary pre-paid post :

   (a)to the solicitors on the record for the father with a request that they be forwarded to the father at his last known address;  and

   (b)to the father’s residential address. 

6. That in the event the father seeks to discharge or vary any order made this day, he file and serve an application to do so within 21 days hereof, together with an affidavit sworn by him in which he provides an explanation of his failure to appear today and sets out with specificity the parenting orders sought by him.  

7. That the independent children’s lawyer be discharged one month from this date. 

8. That all extant applications be dismissed.

9. That these proceedings be removed from the List of matters awaiting finalisation.

10. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

11. That the reasons for judgment this day be transcribed and copies made available to the parties.

12. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

IT IS NOTED that publication of this judgment under the pseudonym  Sully & Exelmansis approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: TVC 568 of 2008

MR SULLY

Father

And

MS EXELMANS

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This case concerns the parties’ child, T, who was born in February, 2004.  His parents separated in early 2006 and he has been living with his mother.  The father lives in Queensland and the mother lives in Melbourne.  Her present partner is Mr W.  The mother has another child, N who lives with his father in regional Victoria. 

BACKGROUND

1. Proceedings were commenced by the father in respect of T in the Townsville Registry of this court on 13 June, 2008.  He sought that T live with him, and that the mother spend time with T as agreed between them, provided that she did not bring the child into contact with Mr W.  Until that time there were no orders governing the time the father spent with T; the parties had made arrangements between themselves.

2. It transpired that at the time that application was made by the father, he had been overholding T, under one such private arrangement.  T was not returned, as he should have been.  On 11 June 2008 the mother filed an application in the Magistrate's Court of Victoria, and a recovery order was made, providing for T's return to her.  As is apparent, that order was made a couple of days before the father filed his application in Townsville. 

3. According to the affidavit the father filed with his application, the mother is a drug user and has tested positive for hepatitis C.  He made allegations about the circumstances in which (he deposed) T came to live with him, and said that T told him in February this year that Mr W "put his willy in my mouth". 

4. The mother filed an affidavit in support of her application for a recovery order, in which she deposed that, since separation, she has been the primary caregiver.  She deposed that the father's time with T has been irregular and on his terms;  he saw him when he wanted to do so, rather than being child focused.  According to her, the father was well aware of her drug use; he, too, used drugs.  She gave evidence of the arrangement pursuant to which T went to spend time with his father;  as the father was between jobs, it was agreed that T would go to him and return to her on 6 June.  He did not return.

5. In that affidavit the mother spoke of the father's hypervigilance about the way men looked at T.  Her evidence was that the father was sexually abused or violated as a young man and has never come to terms with that abuse, or had any treatment in respect of it.  In her opinion he projects his own fears onto T.

6. As already noted, the form 4 notice of abuse filed by the father alleges that Mr W sexually abused T.

7. The father’s application came before Monteith J.  The mother was restrained from removing T from Townsville and the hearing was adjourned to 16 June, a few days later.  On 16 June Monteith J. made further orders, pursuant to which T was to live with the mother and spend time with the father, as agreed.  The mother was restrained from bringing the child into contact with Mr W.  Both parents were restrained from discussing the proceedings with T or anyone other than professionals or the relevant authorities, and the case was placed in this list.  On 23 June, swiftly thereafter, the Magellan registrar made routine orders for the preparation of a Department of Human Services report, the appointment of an independent children's lawyer and intervention by DHS.  The case was adjourned to today.

8. Before the court is the DHS report, dated 13 August 2008.  In the opinion of the protective workers, there would be significant concern for T's safety and emotional wellbeing if he were to spend unsupervised time with his father.  The report mirrors the mother's earlier expressed concern; it notes that it appears the father was sexually abused as a child and had never received proper assistance to deal with that issue.  DHS was concerned that a similar allegation to the one now made against Mr W was made by the father against a paternal uncle at an earlier time.  DHS substantiated none of the allegations made by the father against Mr W or the mother.

9. CASA was contacted by DHS and requested to provide a specialist assessment of T.  They declined on the basis that he is very young, he has already been subjected to a number of interviews without any substantiation of sexual abuse and demonstrates no specific indicators of sexual abuse in his behaviour or his demeanour.  It was the view of those at CASA (a view I would commend) that further assessment of T in relation to these sexual abuse allegations would themselves be abusive of the child. 

10. DHS recommends that the father's time with T be supervised and that he undertake counselling in relation to his own problems arising from his own abuse.

11. The father was the applicant in the proceedings which were filed in this court on 13 June.  The solicitors on the record for him then were Nelson Lawyers.  They appeared for him in those hearings, which I have summarised, in the Townsville Registry.  Today, the father has been called; there is no appearance by or for him.  The ICL has contacted those solicitors; he wrote to them on 16 July, 11 August and 20 August seeking information and an opportunity to discuss outstanding issues.  No reply was received.  The mother's solicitor rang the father's solicitor yesterday and left two messages.  Neither were returned. 

12. After the father was called, in vain, I stood the matter down.  The ICL again rang the solicitors on the record.  He has been advised that the firm no longer acts for the father.  That firm is still on the record; it is unfortunate they filed no notice of ceasing to act. 

13. The ICL was then able to make contact with the father's brother, Mr P, in the Townsville area.  He advised that his brother was still in Northern Queensland.  He gave the ICL a phone number and an address for the father.  The ICL rang that phone number; the phone is turned off. 

14. As I said in the course of discussion with counsel, this is a court of private law.  It determines competing applications between parties.  It cannot compel a party to litigate, or to maintain or press an application that he or she has made.  Its focus must always be on the best interests of the children who are involved in the cases before it.  Every indicia suggests that the father has done nothing to press his case since the first orders were made by Monteith J on 16 June 2008. 

15. In my view, it is not in T’s best interests for these proceedings to limp on, adjourned and adjourned again.  Litigation imposes financial and emotional stresses, which have the capacity to impact adversely on a parent.  Importantly, the current orders effectively stop the mother living with her partner.  The evidence before the court supports a finding that there is no risk to T from his association with Mr W.

16. In these circumstances, I propose to discharge the injunction made by Monteith J. 

17. I do propose to make final parenting orders today.  The orders will be served on the father and he will have 14 days in which to set them aside.  I do that to ensure that natural justice and procedural fairness are accorded to him.  To do otherwise would expose the mother to further proceedings. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

5. The mother proposes that the parties have equal shared parental responsibility for T; certainly, the presumption could be said to apply.  In those circumstances, the court needs to consider whether spending equal time with both parents would be in T’s best interests and reasonably practicable.  I have no hesitation in finding that would not be in his best interests.  Geography renders it impracticable but the court need not get to that point as, having regard to the concerns expressed by DHS and the evidence of the mother, it would be contrary to the child's best interests.  Similarly, any order for the child to spend substantial and significant time with the father would not at this time, be in T’s best interests or, indeed, reasonably practicable. 

6. The mother proposes that the order provide for T to live with her and spend time with his father as agreed between the parties. 

7. It is clearly in T’s best interests to live with the mother.

8. I do propose to order that the father spend such time with T as is agreed between the parties.  It will be in the mother’s discretion as to whether that time should be supervised, and conditions which attach to such time.  The order acknowledges a finding that the only appropriate agreement, at least until the father had some counselling, would involve some form of supervision.

COSTS

1. The mother seeks costs. The general rule set out in s.117 of the Family Law Act1975 is that each party in proceedings in this court pays his or her own costs.  There is a good argument for the mother getting the costs of the Townsville proceedings, given the father’s failure to press them.  On the other, the court needs to be pragmatic; the mother knows the child's father better than the court, but one might wonder about the usefulness in such an order and its impact on her relationship with him, and his with T.  Balancing all matters, I am not satisfied that an order should be made.  There will be no order for costs.

EXHIBITS

1. Copies of the three letters the ICL sent to the father’s solicitors will remain on the file. I have marked as an exhibit a copy of the Magistrate's Court application; it, too, will be retained.  The address and phone number of the father, as provided by his brother, will also be put on the file. 

SERVICE

1. A sealed copy of these orders will be sent to the solicitors who remain on the record, with a request they forward the document to the father at his last known address, and to the father at the address provided by his brother.  The father will have 21 days in which to apply to set aside or vary these orders and I will set out matters he would need to address in an affidavit in support of that application.  I proceed on the basis he will have notice of these orders within a week and fourteen days, at least, to consider his position.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown AM

Associate: 

Date: