Tarkington and Tarkington

[2007] FamCA 1190

FAMILY COURT OF AUSTRALIA

TARKINGTON & TARKINGTON [2007] FamCA 1190

FAMILY LAW – PARENTING – Final Orders – Less-Adversarial Trial – Proceedings ultimately undefended by the mother – child to live with his father and to spend time with his mother as agreed between the parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Tarkington

RESPONDENT: Ms Tarkington

FILE NUMBER: CAF 529 of 2004

DATE DELIVERED: 20 September 2007

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 20 June 2007, 24 July 2007 and 20 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Smithies

SOLICITOR FOR THE RESPONDENT: Mr Alexander for Ms Tarkington on 20 June 2007 and 24 July 2007 and no appearance for or on behalf of Ms Tarkington on 20 September 2007

INDEPENDENT CHILD LAWYER: Ms Lloyd

Orders

1. That the child, born … August 1998, will live with his father.

2. That the father of the child will have sole parental responsibility for the child's long term care, welfare and development.

   (a)I note in this regard that the father has indicated that it is his desire that the child's mother will participate in matters relating to his long term care, welfare and development when she is able to do so and expresses a wish to do so and in such circumstances he will share with her that responsibility.

3. The child will spend such time with his mother has may be agreed between his mother and his father.

4. I direct that the matter be removed from the pending cases inventory.

5. I further discharge Ms Lloyd from her obligations as Independent Children's Lawyer.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 529 of 2004

MR TARKINGTON

Applicant

And

MS TARKINGTON

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court relate to the parenting orders and arrangements that should be made for the child of the parties.

2. The child was born in August 1998 and has in recent times been living principally with his father.  The matter came before this Court on transfer from the Federal Magistrates Court earlier in the proceedings and has since been before me on a number of occasions.  On each of those occasions I made orders which were designed to provide additional material to help the parties to reach a final conclusion about what would be best for the child and in default of their doing so, to give me enough information to enable me to make a decision if the parents were unable to do it.

3. During the course of those orders I had continued the previous arrangement which was that the child would live principally with his father.  This was a source of great distress to the mother, and she regularly asked me when she was in Court if the child could go home with her on that day.  On each occasion I expressed to her the view that as soon as I could get all the relevant information I would make a decision and if indeed it was in his best interests then that would be the result.  If not, then the result would be that he would stay with his father.  But in the meantime he would stay with his father because that was the decision that had previously been made by Brewster FM.

4. The proceedings about children are never easy and one of the difficulties is that in this particular matter, although the child's father has taken care of him, encouraged him to see his mother, supported him in the times that he was to see his mother and in fact gone further, on the evidence before me, than was required him to ensure that the child was transported to see his mother who presently lives in G, the mother has determined, for reasons that are unexplained to the Court or to anyone else at this point, to discontinue her application. 

5. Technically the mother does not have an application before the Court but irrespective of whether or not it is an application or a response, the answer is that she seeks no orders from the Court, has not participated in the proceedings this day, has failed to respond to invitations to communicate with the Independent Children's Lawyer and in effect for the Court and perhaps sadly and most importantly with the child himself. It appears that she did not acknowledge his birthday recently and has had no communication with him now for some time.  The phone seems to have been disconnected and there is really no way in which, short of knocking on her front door, the child could now spend time with his mother until she decides that she is able to again take part in his life. 

6. This is a very important matter because there is no doubt from the reports received by me; principally from the Family Consultant, that the child wanted his mother to be a part of his life. The father has expressed to me, and I accept his expressions of this unqualifiedly, that he is concerned and anxious that the child should spend time with his mother and I further accept that he has indicated to me that he will, if the child's mother is able to bring herself to be engaged again in the child's life, both assist the child in that process and encourage him to have a proper relationship with his mother. 

7. There is little more that the father, in the circumstances, can do.  He has sought professional assistance and that professional assistance has provided him with guidance which has been reinforced by the comments made by the Family Consultant in these proceedings.  This includes enabling the child to relate properly to his father as a father but also not to see the father as being a person either frustrating or being able to facilitate what the child also wants, which is that he will have a relationship with his mother.  This is a difficult task for the father to undertake but I am satisfied that he both understands what is required of him and moreover that he has a firm determination that he will accomplish it. 

8. I am, under the terms of Part VII of the Family Law Act 1975 (the ‘Act’), obliged to take account of the objects and principles promoted by the Parliament in that part of the Act in relation to children which include ensuring that the child has the benefit of a meaningful involvement with both parents to the extent that he can and consistent with his best interests. I am obliged to see that he is protected from physical or psychological harm, to ensure that he receives adequate and proper parenting and that the parents fulfil their duties and meet responsibilities concerning the care, welfare and development of the children. I accept these are the objects of the legislation and I will return to them more specifically in due course.

9. In addition, the legislature has suggested that the principles upon which the Court should operate include that children have a right to know and be cared for by both of their parents, that they have a right to spend time on a regular basis with each of their parents and that parents should jointly share duties and responsibilities about the care, welfare and development of the child and that there should be agreement about future parenting in relation to the child and where it would be appropriate (in this case there is no indication that there is any specific reason for him to do so); to enjoy his culture with and including the right to enjoy that with people who share that culture.

10. I am obliged in making any parenting order, to begin, in accordance with s 61DA with a presumption that it is in the best interests of the child that there be equal shared parental responsibility.  That presumption does not apply if there are grounds to believe that a parent of the child has engaged in abuse of the child or family violence or there is other evidence that satisfies me that it would not be in the child's best interests for his parents to have equal shared parental responsibility for him. 

11. I indicate in this matter - and I have discussed this this morning with the father and with the Independent Children's Lawyer, that there is no basis upon which I could make such an order at this point, simply because the child's mother declines or is unable - and I am not sure which it is - to be involved in sharing responsibility for the child. The evidence before me makes it quite clear that she is unable at this point to engage on that basis and in the circumstances I accept that it is appropriate that I should make an order that would repose sole parenting responsibility with the father.

12. Each of the parents of a child who has not attained 18 years has that responsibility in any event pursuant to s 61C of the Act but I think in this case it is appropriate that I should make a specific determination to avoid any further confusion as the child gets older and there is a need for someone to have responsibility and moreover for those with whom the father deals, to be satisfied that he has the authority and responsibility to undertake those duties.

13. In those circumstances I am not obliged as such to give consideration to the proposition that the child should spend equal time with each of his parents or for that matter, substantial time with each of his parents. In practical terms it is not possible for this to occur in any event, simply because at the present point the child's mother will not accept the pleasure and obligation and I suppose the right for the child to spend time with her. In the circumstances, I accept that it is appropriate that I should make an order that requires or that enables the child to spend time with his mother if the child's father and the mother agree. I come to that conclusion having taken account of a number of matters under s 60CC of the Act.

14. Under that section which enables me or gives me guidance for how I should decide what is in the best interests of the child, my primary considerations must be the benefit to him of having a meaningful relationship with both parents and the need to protect him from physical or psychological harm or being exposed to abuse, neglect or family violence.  Although from time to time, the mother has asserted that the father is a person who is violent and whose influence on the child may not be appropriate, no evidence of this has been put before me notwithstanding a number of opportunities for this to occur and this means that I have no basis or evidence which I could consider other than that it was in the child's best interests for him to be with his father. 

15. Equally, I am satisfied that while it might be a primary consideration that it would be in his interests to have a meaningful relationship with both parents, that requires the cooperation of both parents which in this case is missing. 

16. I take into account the child's views as expressed both to the Independent Children's Lawyer and also to Ms D, the Family Consultant, that he does want to spend substantial time with his mother and in fact may have, at least in the past, although I am not satisfied that it is so at present, wanted to live principally with her.  The reasons for his doing so were explored by the Family Consultant who commented about his maturity but also was concerned that he may be accepting a level of responsibility for his mother's well-being which was inappropriate for someone as young as he is.  The desire on his part to ensure that his parents were both happy and that he had time with both of them is both understandable and commendable and from my point of view it makes me very sad that the little boy should feel he has that level of responsibility.

17. In making that comment, I am in no way criticising his father, who I am sure is doing what he can to accept responsibility to ensure that the child does not feel that he is the one who is in some way to blame for this situation. 

18. I am satisfied that the father's relationship with the child and that of the father's partner is a good one and that he will have, with his father and his father's partner, appropriate physical, emotional, educational and substantive care, that there is nothing that I need to take specific account of in his day to day living circumstances and subject only to his continuing to receive the assistance that his father has organised for him with Mr P [a counsellor], it seems that the child has the prospect of living at least a fairly normal life with his father and his father's partner in their family.

19. I am satisfied the father has the capacity to provide appropriate care for the child. 

20. I cannot be satisfied at the moment that the child's mother is in a position to contribute to his well-being.  That is not to say that she cannot and not to say that she will not at some point in the future, but for the present it seems to me that the evidence, at least inferentially, is that she is unable or unwilling to be involved in the child's immediate future. 

21. I accept that the father's attitude towards the child has demonstrated, at least in so far as I have been able to ascertain it during the course of these proceedings, a proper responsibility or recognition of his responsibilities as a parent and there is no other matter under the terms of s 60CC to which I need to pay any particular attention in my opinion in reaching the conclusion that I should make the orders that are being sought on behalf of the child by his father.

22. I note that these orders are supported by the Independent Children's Lawyer, Ms Lloyd, whose assistance in this matter I gratefully acknowledge. 

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

Associate

Date:  8 October 2007