Thatcher and Felton

[2008] FMCAfam 225

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THATCHER & FELTON [2008] FMCAfam 225

FAMILY LAW – Undefended hearing – father incarcerated – whether child should spend time with the father – parental responsibility.

Family Law Act 1975 ss.61DA(4), 60CC

Applicant: MR THATCHER

Respondent: MS FELTON

File Number: SYM 5002 of 2006

Judgment of: Altobelli FM

Hearing date: 7 February 2008

Date of Last Submission: 7 February 2008

Delivered at: Sydney

Orders Made: 7 February 2008

Reasons Delivered on: 14 March 2008

REPRESENTATION

Applicant: Appearing in person by telephone

Solicitor-Advocate for the Respondent: Ms Weate

Solicitors for the Respondent: Jennifer Weate & Associates

Solicitor-Advocate for the Independent Children’s Lawyer Mr Eggleston

Solicitors for the Independent Children’s Lawyer Slade Manwaring

ORDERS

1. All previous Orders be discharged.

2. The Mother have sole parental responsibility for the Child J born in 2005.

3. The Child live with the Mother.

4. The Child spend time with the Father as agreed between the parents.

5. I NOTE the Mother shall remain in contact with Dr H from time to time and shall follow any recommendations made by Dr H.

6. The time for filing an appeal in the matter is extended to twenty-eight (28) days after the publication of reasons.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 5002 of 2006

MR THATCHER

Applicant

And

MS FELTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter is between the Applicant father, Mr Thatcher, who is

   
   

   29 years old, and the Respondent mother, Ms Felton, who is

   
   

   28 years old. It concerns the father’s application to spend time with J, who is two and a half years old.

2. The father, although appearing by telephone from P Correction Centre on the date of hearing, and on several mention dates before then, has failed to file an Amended Application or updating affidavit, with the most recent material on the file dating back to November 2006. As he had been warned on several previous occasions that a failure to file updating material would result in the matter proceeding as an undefended hearing, the matter was dealt with on an undefended basis. I accordingly made orders on 7 February 2008, and now publish my reasons for making those orders.

Background

1. The parents formed a relationship in approximately August 2004. They cohabited at the mother’s residence for a period of about eight weeks until the father was imprisoned in October 2004. The relationship resulted in the birth J in 2005. While there is some dispute as to when the parents ended their relationship, it is clear from the affidavits of both parties that their relationship did not resume when the Applicant was released from prison in October 2005. The mother also has an older son, K, from a previous relationship, who is seven years old.

2. During the time the father was incarcerated, he did not see J. The mother was J’s primary caregiver, and states that she was unable to take J to see her father as he was transferred from S Correctional Centre to B Correctional Centre. Due to B being a considerable distance from Sydney, and the mother’s lack of transportation, she did not make the trip to introduce J to her father (mother’s affidavit filed 13 July 2006). The father was released from custody in October 2005 (father’s affidavit file 13 February 2006), and commenced proceedings in the Local Court on 13 February 2006, seeking joint parental responsibility and two overnights a week with J. The matter settled on an interim basis on 6 April 2006 with the following orders being made:

   1. That the child J born in 2005 shall reside with the mother.

   2. That the child have contact with the father every Saturday from 11.00am to 2.00pm and for such contact to take place at U Westfield and or [sic]  the Public Park at U that is located across the road from U Westfields [sic] and for the purposes of contact is to be supervised by the maternal grandmother and or [sic] the maternal grandfather and or [sic] Ms D, who is the mother’s step-mother, and for such contact to commence on 15 April 2006 and for such contact o increase to 11.00am to 3.00pm on 13 May 2006.

   3. For the purposes of contact as stated in Order 2 the maternal grandmother and or [sic] the maternal grandfather and or [sic] Ms D, who is the mother’s stepmother, shall take the child to meet the father at the commencement of each contact period at the Greater Union Movie Cinema in U and from there the father and the maternal grandmother and or [sic] the maternal grandfather and or [sic] Ms D can decide where and how they spend the hours of contact as provided for in Order 1[sic].

   4. Commencing on 10 May 2006 the father shall have contact with the child on each alternative Wednesday at L Community Centre from 0930am [sic] to 1130am [sic] and for such contact to be supervised by the maternal grandmother.

   5. In the event the maternal grandmother is unable to attend contact as provided for in Order 4 then the maternal grandmother shall contact the paternal grandmother to arrange for contact to take place of [sic] Tuesday or Friday in lieu of Wednesday at the same location and time as provided for in Order 4.

   6. In the event either party is unable to provide or exercise contact as provided for in these Orders then the maternal grandmother and paternal grandmother shall contact each other to advise of the inability to attend and or to discuss contact taking place on an alternative day or time.

3. The matter was then transferred to the Federal Magistrates Court and an Independent Children’s Lawyer appointed (Interim Orders 6 April 2006).

4. The matter first came before this Court on 14 July 2006.  A number of further mentions were held during which orders were made for the father to undergo drug testing (14 July 2006) and it was noted that

   
   

   Dr Rikard-Bell was to provide an expert’s report (24 November 2006). Further interim orders were made on 20 December 2006 providing for the father to spend time with J for five hours each Saturday and three hours every alternate Wednesday.

5. The report of Dr Rikard-Bell was received and made available to the parties on 20 December 2006. On 26 February 2007, an order was made allowing the Expert’s Report to be provided to DOCS and to those offering therapeutic assistance to both the parents. On that date the matter was set down for hearing on 7 August 2007. The solicitor for the father ceased to act on 20 June 2007, and the matter was brought back for mention on 6 August 2007 as a result of the solicitor for the mother informing the Court of the father’s most recent incarceration.

6. The hearing dates of 7 and 8 August were accordingly vacated, and the matter brought back for mention on 21 August 2007 so that the father might better be able to provide the Court with information as to his charges, hearing dates, and the likely length of his imprisonment.

7. On 21 August the solicitor for the mother was the only party in attendance. On that date the orders made 20 December 2006 were suspended pending further order. An updated Expert’s Report, prepared by Dr Rikard-Bell for the vacated hearing, was released to parties on

   
   5 September 2007

   . During the next mention on 19 September 2007, an order was made for Dr Rikard-Bell to prepare a further report regarding the suitability of J spending time with her father while he was in gaol. This was in response to the father’s continued insistence that the mother should be required to bring the child to spend time with him in gaol.

8. During the mention on 19 November 2007, the matter was set down for an undefended hearing on 7 February 2008 due to both the father’s failure to put on updating material, and the matter’s protracted history. The father was, however, given leave to apply on 14 days notice in regards to spending time with J if he was released from custody prior to the hearing date.

9. As it transpired, on 7 February 2008, the father was still incarcerated and had not filed further material in accordance with the directions made on 19 November 2007. While he appeared by phone, he was largely uncooperative, insisting that he couldn’t be expected to participate as he did not have legal representation. His participation on this date, consistent with his participation throughout the time the matter has been in my docket, was limited largely to complaints about his lack of legal representation, the mother’s refusal to bring J to see him in prison, and his anger over having to “go back to the start again” with regards to spending time with J on his release from prison. At no point were his comments directed at what might be in J’s best interests, but rather were couched in terms of his wants and his needs.

10. Accordingly, the matter proceeded on an undefended basis.

Evidence of the Parents

1. The mother relied on her affidavits filed 13 July 2006 and 16 January 2008 and the three reports of Dr Rikard-Bell, dated 20 December 2006, 20 August 2007 and 16 November 2007. She gave evidence, and was questioned by her own solicitor, Ms Weate, the Independent Children’s Lawyer Mr Egglestone, the father and myself. The mother said she would consider the father spending time with J in the future, although she expressed a number of concerns. Firstly, she felt it was very disruptive and not in J’s best interests to have a relationship with a father who will be “coming in and out of her life”. Second, she did not think J would remember her father, since she had not seen him in quite some time, and would not have seen him for a number of years should the father be imprisoned following his upcoming trial. Thirdly, the mother had significant doubts about the father’s parenting capacity due to his lifestyle, drug use, and history of criminal behaviour. Finally, the mother did not feel it was of benefit to J to spend time with the father while he was incarcerated, or to receive mail or phone calls from him. This was due to her belief that J was too young to understand at this point in time. The mother felt that such communication might be appropriate in a few years time.

2. The mother’s evidence impressed as being honest and child-focussed, and although she was not supportive of J spending time or communicating with the father, it was clear that this was because she did not feel it would be in J’s best interest to do so. The concerns she raised were supported by both her own evidence and that of

   
   

   Dr Rikard-Bell. While the mother gave evidence about not having much trust in the father as a result of his representations to her regarding his illegal activities, and his subsequent arrest, she has in the past shown a willingness to facilitate J spending time with him. I am therefore willing to accept that if the father brings proceedings in the future to spend time with and communicate with J, then she will be cooperative and facilitate this, subject to appropriate safeguards.

Expert’s Reports

1. In total, three reports were prepared in this matter by Dr Rikard-Bell – a substantive report dated 20 December 2006, and two brief updating reports, dated 20 August 2007 and 19 November 2007.

2. The first and most substantive report detailed the parties’ family histories, which were not dealt with in depth in the affidavits of either party. This report was of particular value in the absence of substantive affidavit material on the part of either parent.

3. The first report outlines the background of both parents. I intend to incorporate these reports into my reasons for judgment, and as such I will not set out the histories of the parties contained therein at length.

4. Dr Rikard-Bell’s first report states that the mother has a history of drug abuse, including heroin abuse, beginning in her teens and ending when she underwent rehabilitation and began the methadone program during her pregnancy with J. At the time of the report, she was still using marijuana occasionally, but had satisfactorily completed the methadone program. Dr Rikard-Bell also interviewed Ms G, the maternal grandmother, who Dr Rikard-Bell believed was a good support for the mother in caring for both J and K, and a significant attachment figure in J’s life.

5. Dr Rikard-Bell found that J’s attachment to her mother was normal for her age, and developing well. He was of the opinion that this would continue provided the mother continued to remain heroin-free and under the guidance of her drug counsellor, with the continued assistance of the maternal grandmother.

6. Dr Rikard-Bell reports that the father has spent significant amounts of his adolescence in juvenile correctional centres, and a substantial number of years in prison on turning eighteen. The father also admitted to recreational drug use, though he denied “excessive use” of any drug. Dr Rikard-Bell went on to describe the mental health of the father in the following terms:

   I formed the view that Mr Thatcher had significant personality problems with antisocial and paranoid features. He appeared very suspicious and reluctant to co-operate with others. He has a strong antisocial history with drug abuse and criminal activity. To his credit, he has not had any further offences as far as I was aware, over the past 18 months. However, from his history there is probably a high likelihood that he will have further drug and antisocial problems unless he undergoes some significant rehabilitation. Mr Thatcher doesn’t appear to have great insight into what he may need in order to develop a more stable approach to life and he seems to believe that he should be provided with his wishes. If he were to undertake a work program and begin gradual rehabilitation, remain drug free and continue in his relationship with A then gradually he may become more stable.

7. Dr Rikard-Bell’s assessment has been borne out in light of the father’s subsequent arrest and incarceration. Although the father has not yet been convicted on this current charge, which from what little information the father has given appears to be a robbery offence, he is once again in custody with no clear idea of his release date. Dr Rikard-Bell’s statements regarding the father’s lack of insight and anti-social behaviour was also apparent in the father’s dealings with the Court. The father was consistently difficult, unwilling to listen, and far more concerned about getting his own way and asserting his “rights” than in coming to a decision that was in J’s best interests. He is not prepared to acknowledge that his own actions have contributed o the current situation of J ceasing to spend time with him. His refusals to engage in the court process unless a solicitor was provided for him also do not reflect well on him. Even allowing for the fact of his incarceration I believe there is far more he could have done to represent himself in these proceedings. It is apparent the father only wishes to play a part in J’s life if he can do so according to the terms he dictates, regardless of what effect that might have on J.

8. The second updating report added little to the first, beyond confirming that the mother continued to attend on her social worker and drug counsellor, and was a capable mother whose rehabilitation was continuing and successful. Dr Rikard-Bell also opined that he did not believe J’s attachment to the father, which was insecure during the first report, would have improved in the interim. This is especially due to the fact that he had not seen J for three months at the date of preparation of this report. In this report Dr Rikard-Bell states that:

   I support the mother’s proposal that should Mr Thatcher want contact with J that he would need to reapply through the Courts. Mr Thatcher needs to demonstrate that he is drug free and has stability in his life. Mr Thatcher needs to agree to undergoing urine tests and to do anger management and self esteem building courses as well parenting courses. He needs to submit himself to the scrutiny of [the] Department of Community Services and get involved in improving his lifestyle and himself before being in a position to be able to have something substantial to offer his child or children.

   The doctor’s comments thus echo the concerns raised by the mother and her solicitor.  It was apparent from the father’s attitude in his court appearances that he was not open to the above course of action, as he does not see that his actions have any kind of causal connection with the suspension of orders to spend time with J.

9. The final report dated 16 November 2007 was prepared specifically to deal with the issue of the father spending time with J while in prison. Dr Rikard-Bell weighed up the short-term and long-term effects of J not spending time with her father and said:

   If J does not have contact with her father there would be no significant loss to her in the short term. In the long term, one can argue that without forming this attachment she may miss out on a strong attachment and relationship with her father. However, her father has significant antisocial problems and I believe there are major concerns about his lifestyle and the exposure to drugs and antisocial acts.

10. Dr Rikard-Bell went on to recommend that there be no time with the father as:

    the child is too young to be able to form a significant relationship with her father under these circumstances and there’s much more chance of being exposed to negativity and there being some risk of destabilizing her current situation with her mother.

11. Dr Rikard-Bell went on to reiterate his recommendations with regards to the changes the father needs to make to his lifestyle, and supported the mother’s assertion that the father not spend time with J unless he makes those changes and applies to do so “through the proper channels”, which I take to mean the Court.

12. Although Dr Rickard-Bell was not cross-examined, his reports accord with my own observations of the parties and the evidence given by the mother. As he is an independent expert with highly relevant expertise, I have placed significant weight on his evidence in the form of these reports.

Conclusion

1. While both parents have had problems with anti-social behaviour, such as drug taking and criminal activities, the evidence above demonstrates that the mother has taken significant steps to change, and has accessed and continues to access a number of organisations and programs to assist her in continuing her rehabilitation. The evidence of Dr Rikard-Bell and the mother herself convince me that the mother is motivated to maintain her progress, and will continue to consult her counsellor, Dr H, for assistance in maintaining her recovery.

2. The evidence available to me also indicates that the mother is a capable parent with a strong bond with J. Dr Rikard-Bell in his report indicated that the mother is an adequate parent who is conscious of the needs of both her children, and who is committed to maintaining her rehabilitation in order to meet those needs.

3. In contrast, the father has presented as being unwilling to accept that his current lifestyle is not conducive to his playing a role in J’s life, and furthermore is unwilling to accept any responsibility for the cessation of time spent with J. The father’s attitude throughout the conduct of these proceedings has not been child-focussed at all, but as I have said previously, has been about his wants and what he perceives as his “rights” as J’s father. Dr Rikard-Bell’s observations regarding the father’s self-acknowledged problem with authority, his lack of insight and belief that he should have his wishes catered to by those around him accord with my own observations. Given the father’s long and continuing history of incarceration, and failure to rehabilitate, I cannot be at all confident that the father will make the changes outlined in

   
   

   Dr Rikard-Bell’s report as being necessary for him to play a beneficial role in J’s life in the near future.

1. This is a case where the child does not have an existing meaningful relationship with her father, and the evidence indicates that, for the time being, there is not benefit to the child in seeking to establish the same: s.60CC(2)(a). The child does need to be protected from the risk of psychological ham which seems to be associated with spending time with her father: s.60CC(2)(b). J has a strong relationship with her mother (s.60CC(3)(b)) but not with her father, and I am satisfied that should the father wish to resume a relationship with J at some future time, the mother will act in a child-focussed manner: s.60CC(3)(c)(i) and (j). The presumption of equal shared parental responsibility is rebutted because all of the facts indicated it would not be in J’s best interests for it to apply: s.61DA(4). This is one of those comparatively rare cases where it is not in the best interests of a child to spend time with her father other than as agreed with the mother.

2. Accordingly, for the reasons above, I find that it is in J’s best interests for her mother to have sole parental responsibility. J is to spend time with the father as agreed between the parents, but is otherwise to reside at all times with the mother.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: 

Date: