Tomlin and Tomlin

[2010] FamCA 507

FAMILY COURT OF AUSTRALIA

TOMLIN & TOMLIN [2010] FamCA 507

FAMILY LAW – CHILDREN – Parental responsibility – With whom a child lives – Father failed to participate at the final hearing – Orders made after an undefended hearing which provide for the mother to have sole parental responsibility and for the child to live with the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Tomlin

RESPONDENT: Mr Tomlin

FILE NUMBER: NCC 2695 of 2008

DATE DELIVERED: 10 June 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 9 and 10 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Burns

SOLICITOR FOR THE APPLICANT: Little & Associates Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. All former parenting orders relating to the child J born … June 2007 are discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

5. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of any other person denigrating the other.

6. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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 Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS

A.The absence of any express order for the child to spend time or communicate with the father is not intended to mean that there ought be no time spent and no communication by the child with the father but rather, that those issues will need to be the subject of negotiation between the parties in the future should the father wish to re-engage with the mother and the child.

B.The family violence order made against the father in favour of the mother on 7 January 2009 remains in existence until 6 January 2011, and restricts the circumstances in which the father is able to communicate with the mother.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2695 of 2008

MS TOMLIN

Applicant

And

MR TOMLIN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should properly be made for the child J, born in June 2007 (“the child”).  The child is not yet three years of age. 

2. The proceedings are contested by Ms Tomlin (“the mother”) and Mr Tomlin (“the father”). 

3. The proceedings are heard and determined on an undefended basis because of the father’s disengagement from both the proceedings and, to a lesser extent, the child.

Absence of the Father 

1. The proceedings were commenced by the mother filing an Application on 23 October 2008, shortly following the final separation of the parties in or about September 2008.  The father filed a Response on 13 November 2008 but later failed to continue his participation in the proceedings.

2. The matter came before the Court for interim hearing on 16 January 2009, but the father failed to attend Court on that day.  Interim parenting orders were then made in the father’s absence suspending interim parenting orders which had been earlier made in October 2008, which had provided for the child to spend time with the father.

3. The father later resumed his participation in the proceedings. Lawyers appeared for him before the Court on 18 June 2009, at which time further interim orders were made providing for the child to spend time with the father at the Rainbows Contact Centre. 

4. The father filed an Amended Response on 30 July 2009.

5. Further interim parenting orders were made by the Court on 6 August 2009 providing that if arrangements could be made with the Rainbows Contact Centre then the child was to spend time with the father for a period of two hours, with a frequency amenable to the Rainbows Contact Centre. 

6. By reason of delays encountered with the Rainbows Contact Centre, it seems that the child was unable to spend time with the father pursuant to those orders.  The mother contends that her solicitor’s inquiries with the Rainbows Contact Centre on 14 August 2009 resulted in her being informed that the family was “on a waiting list”.  The mother was later informed on or about 5 November 2009 by staff at the Rainbows Contact Centre that the father had not attended the Contact Centre at about that time for his intake assessment.

7. The matter came before Registrar Kearney on 5 November 2009 without the need for appearances to be made by the parties. Having regard to material which had been filed prior to that date, Registrar Kearney ordered (Order 5) that the father file a Form 4 Notice of Child Abuse or Family Violence pursuant to the provisions of s 67Z of the Family Law Act (“the Act”).  The father has failed to comply with that order, and no such notice has since been filed by him.

8. The matter came back before the Court on 17 November 2009, at which time the father was legally represented.  On that date each of the parties sought that the matter be listed for final hearing, but the Court declined to accede to that application as the matter appeared unready for trial (Notation A).  The matter was adjourned for a period of weeks and the father was ordered to file the Amended Response which he foreshadowed that he needed to file (Order 3 and Notation A).  The father has failed to comply with that order as no Amended Response has since been filed by him.

9. The matter came back before the Court on 1 December 2009.  On that occasion the father did not appear in person and the solicitor who then appeared on his behalf informed the Court that his instructions had been withdrawn by the father (Notation A).  The matter was therefore fixed for final hearing on an undefended basis on 17 February 2010 (Order 1).

10. When the matter came back before the Court for undefended hearing on 17 February 2010 the father belatedly appeared unrepresented (Notation B).  He indicated to the Court that he wished to re-engage with the proceedings and contest the parenting orders to be implemented for the child.  The mother and her solicitor recognised that the matter could not properly proceed on an undefended basis in those circumstances and so the hearing date was vacated (Order 1).

11. The matter was re-listed for trial on a defended basis on 9 June 2010 and supplementary procedural orders were made (Orders 3, 4, 7, 8, 9 and 11).  The majority of those procedural orders have been the subject of non-compliance by the father.  He has failed to file an affidavit as to his financial circumstances (Order 3), he has failed to file his Amended Response (Order 8), and he has failed to any affidavit evidence (Orders 9 and 11).

12. The matter came before the Court for final hearing on 9 June 2010.  There was no appearance by or on behalf of the father.  The matter did not enjoy priority on that date and was displaced from the hearing list by a trial which was then proceeding.  The matter was accordingly stood over to today, being 10 June 2010, for hearing and determination.  Today, there was again no appearance by or on behalf of the father.

13. I am satisfied that the father was aware that these proceedings were listed for final hearing commencing 9 June 2010. I am satisfied that the father’s failure to participate in the proceedings is a voluntary decision and that the resolution of the proceedings ought not be delayed any longer.  Accordingly, I am satisfied that the matter should proceed to determination on an undefended basis.

Proposals and Evidence of the Mother

1. The mother relies upon her Further Amended Application filed 22 January 2010 and her affidavit filed on 9 April 2010. 

2. She additionally relies upon the contents of the Family Report prepared by the Family Consultant on 19 October 2009. 

3. Although the mother seeks a raft of parenting orders in her Further Amended Application, her learned counsel announced that she abandoned her case for all orders other than Orders 1 and 2 set out within that Application, which confined her case to simply the allocation of parental responsibility for the child and an order as to the residence of the child.  The motivation for that decision is seemingly an acknowledgement that the Court ought not embark upon a determination about the circumstances in which the child should spend time with the father, or communicate with him, in the absence of the father’s participation in the proceedings.

Background Facts

1. The parties began cohabitating in 2000, were married in 2006, and separated on 2 September 2008 (Family Report, par 4). 

2. Since the time of separation the child has lived with the mother and has spent time with the father from time to time. 

3. The first interim parenting orders were made by the Court on 29 October 2008, providing for the child to live with the mother and spend time with the father. 

4. As I have already remarked, further interim orders were made on 16 January 2009, which suspended the earlier orders providing for the child to spend time with the father.  The evidence suggests that that suspension occurred at or about a time when the father was incarcerated for the breach of family violence orders (Family Report, par 10). 

5. On 13 February 2009, the Court continued the suspension of the order providing for the child to spend time with the father and adjourned the matter until 18 June 2009. 

6. The mother says that since 16 January 2009, the child has had very limited contact with the father (mother’s affidavit, par 127).  According to the mother, the child spent time with the father on one occasion on or about 23 May 2009 at the home of a mutual friend for a period of hours.

7. The matter came back before the Court on 18 June 2009 and orders were then made providing for the child to spend time with the father in a supervised setting at the Rainbows Contact Centre, provided that arrangements could be made at that Centre.  Despite the restriction of those orders, it would seem that the mother permitted the child to spend time with the father some time during June 2009 after the funeral of a mutual friend (Family Report, pars 10, 43).

8. Further interim orders were made on 6 August 2009, again confining the time spent by the child with the father to a supervised setting at the Rainbows Contact Centre.  It seems that those orders were not invoked for numerous months.  The mother did not receive a letter from the Rainbows Contact Centre scheduling visit times until December 2009 (mother’s affidavit, par 129).  That letter scheduled visits for the child with the father at the Contact Centre from January 2010.  However, the child had seen the father on one prior occasion on 19 October 2009 when the child was seen in the company of the father for the purposes of compilation of the Family Report (mother’s affidavit, par 128).

9. From the time that the orders made in August 2009 were finally invoked in January 2010, the time spent by the child with the father has been quite irregular.  The mother took the child to the Contact Centre on 3 January 2010 for the first scheduled visit but the father did not attend (mother’s affidavit, pars 130-131).  The mother next took the child to the Contact Centre on 16 January 2010, but the father did not attend on that occasion either (mother’s affidavit, par 132).  The father did permit the child to spend time with him at the Contact Centre on 31 January 2010 and on subsequent fortnightly visits up until 14 March 2010 (mother’s affidavit, par 133).  There was no contact between the child and the father on 14 March 2010 due to illness (mother’s affidavit, par 135).  On the next occasion of a scheduled visit, being 28 March 2010, the father again failed to attend (mother’s affidavit, par 136).  Because the mother’s affidavit was filed on 9 April 2010, so as to comply with procedural Order 9 made on 17 February 2010, there is no further evidence before the Court about the time spent by the child with the father since then.

10. The child remains living with the mother. 

11. So far as the evidence goes, the child does not regularly spend time or communicate with the father.

12. The father made serious allegations to the Family Consultant about the impairment of the mother’s parenting capacity on the basis of her alleged psychological instability, her use of alcohol and illicit drugs, her physical abuse of the child, her sexual abuse of the child, and her neglect of the child.  Given the father’s voluntary disengagement from the child and this litigation, and his acquiescence to the child remaining in the care of the mother, the Court is entitled to infer that his allegations against the mother are disingenuous or, if genuine, that he simply does not care enough to do anything about them.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC). I therefore turn to the factors under s 60CC of the Act to identify the salient features relevant to the best interests of the child.

Best Interests of the Child

1. The Family Consultant observed the child and the mother together.  They clearly have a close relationship.  When the mother was asked to leave the observation session, to permit the child to be observed with the father, the child was seen to become upset when he learned that the mother was about to depart.  The child’s surrogate grandmother was also present and she was able to satisfactorily settle the child.  When she returned later the mother was observed to interact appropriately with the child and the child was excited about her return (Family Report, pars 55-56).

2. The parties each make many allegations against one another in relation to family violence.  In the absence of affidavit evidence from the father and the testing of the mother in cross examination, those allegations remain untested.  Nonetheless, there is evidence before the Court that bears upon the question of family violence, and there is consequently a need for the Court to be vigilant about the protection of the mother and the child.  There is no doubt that the father has been convicted for the breach of a family violence order, which was formerly made for the protection of the mother (Family Report, par 35).  The mother’s counsel tendered in evidence a Final Apprehended Violence Order made by the Local Court on 7 January 2009 for the protection of the mother against the father (Exhibit M3).  That order was made for a period of two years and will remain efficacious until 6 January 2011.  The terms of that order are quite restrictive.

3. The mother works outside of the home.  Her hours of work are between 11:00 am and 3:00 pm on Wednesdays and Thursdays of each week (Family Report, par 7).  The child attends preschool, which he is reported as enjoying.  He attends preschool two days per week and on another day spends time with his surrogate grandmother (Family Report, par 54).  There is no suggestion on the admissible evidence that the child’s physical, intellectual and emotional needs are not being adequately met.

4. The child has important relationships in his life apart from the mother.  The Family Consultant observed that the mother’s neighbours and close friends, Mr and Mrs N, are important to the child.  They are referred to as the child’s surrogate grandparents.  The child also has a positive relationship with the paternal grandparents, from whom the father is reportedly estranged (Family Report, pars 11, 63).

5. The Family Consultant considers that the mother has shown a degree of willingness to facilitate and encourage a close and continuing relationship between the child and the father (Family Report, par 23).  As I understand the evidence, from the submissions put by the mother’s learned counsel, the mother is desirous of the child retaining a relationship with the father so long as the safety and emotional security of the child are preserved.  For the time being at least, the mother envisages that that can only be ensured by the child spending time with the father in a supervised setting (Family Report, par 31).

6. The father has three other children to three different mothers.  He apparently spends no time with any of those other children and his commitment to those children by way of the payment of child support is lacking (Family Report, par 39). Regrettably, the father’s emotional commitment to the child in these proceedings seems to be replicating the pattern of his interaction with his older children.

Conclusions

1. The simple fact is that the child is primarily attached to the mother and for all practicable purposes the mother has for some time been solely responsible for the decision making in the child’s life.  The father has been prohibited from contacting the mother from at least as early as 7 January 2009 by reason of the restrictive terms of the family violence order (Exhibit M3 and Family Report, par 42)

2. The ultimate recommendation of the Family Consultant is that the parties should not have shared parental responsibility for the child by reason of the absence of communication between the parties and the high level of conflict that has existed between them in the past (Family Report, par 75).  I am satisfied that the evidence adduced displaces the presumption of equal shared parental responsibility and that the best interests of the child dictate that parental responsibility should be allocated to the mother solely.

3. The Family Consultant is of the view that the child ought not spend equal time with each parent, as the child is at a developmental age where he would not be able to emotionally cope with living in two households, particularly in circumstances where the parties are unable to communicate and there remains high conflict between them (Family Report, par 76). I accept that recommendation as reflecting reality.

4. Although the Family Consultant makes no direct recommendation in relation to the child spending substantial and significant time with the father, inferentially that would be contrary to the opinion of the Family Consultant because the Family Consultant considers that any time spent by the child with the father should, at least initially, be spent in a supervised setting at the Rainbows Contact Centre (Family Report, pars 78, 82, 84).  Essentially, there is a coincidence of opinion between the Family Consultant and the mother with respect to the proper living arrangements for the child. 

5. I accept the sense of the mother’s submission that no orders should presently be made for the time to be spent by the child with the father, or in respect of the manner in which they might communicate with one another.  The absence of such orders is not intended to mean that there should be no time spent by the child with the father and no communication between them. Rather, in the absence of evidence and submissions from the father about proper orders in respect of those confined issues, no final decision ought be made. 

1. The corollary is that should the father in the future decide to re-engage with the child it will be necessary for him to establish contact with the mother for the purposes of negotiating an appropriate regime for the child to spend time and communicate with him.  To the extent that the parties are unable to negotiate a compromise on those issues, the father will need to commence fresh proceedings for those issues to be determined by the Court.  Because those issues have not been the subject of final determination in these proceedings, it is unlikely that any such future proceedings, confined to those issues, would be precluded by the principles espoused in Rice v Asplund (1979) FLC 90-725.

2. The ability of the father in the future to contact the mother is proscribed by the restrictive terms of the current family violence order, which will not expire until 6 January 2011.  In the event that the father wishes to re-establish contact with the mother in advance of that date, it will be necessary for him to do so through a legal representative, consistent with the terms of that family violence order.

3. For those reasons, I find that the orders that I am about to announce properly reflect the child’s best interests.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  10 June 2010