TURNER & TIMMINGS

[2014] FamCA 729

FAMILY COURT OF AUSTRALIA

TURNER & TIMMINGS [2014] FamCA 729

FAMILY LAW – CHILDREN – Final Orders – Application by mother for matter to proceed on an undefended basis – Application granted – Allegations of family violence and abuse – Allegations of sexual abuse – Orders that children live with mother and that mother have sole parental responsibility – No order made for father to spend time with or communicate with the children

Family Law Act 1975 (Cth)

APPLICANT: Ms Turner

RESPONDENT: Mr Timmings

INDEPENDENT CHILDREN’S LAWYER: Mr P Briffa

FILE NUMBER: MLC 6153 of 2008

DATE DELIVERED: 17 July 2014

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms F McCracken

SOLICITOR FOR THE APPLICANT: Grant Tucker

COUNSEL FOR THE RESPONDENT: No appearance

COUNCIL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT                   CHILDREN’S LAWYER: Mr Briffa Legal Aid Commission Mr Briffa

Orders

1. All previous parenting orders be vacated in relation to the children B born … 2007 and C born … 2012 (“the children”).

2. The mother have sole parental responsibility for the children.

3. The children live with the mother.

4. There be no orders for the father to spend any time or communicate with the children.

5. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. These orders were made following an undefended hearing.

2. The mother is no longer living in Tasmania, living on mainland Australia.

IT IS FURTHER ORDERED

1. All oustanding applications be dismissed.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Timmings 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 LAUNCESTON

FILE NUMBER: MLC 6153 of 2008

Ms Turner

Applicant

And

Mr Timmings

Respondent

REASONS FOR JUDGMENT

1. This is an application which was brought by Ms Turner (“the mother”) by application filed July 2013 against the father, Mr Timmings, (“the father”), in relation to their two children, B, aged six, almost seven, and C, aged about two and a half.  The mother seeks orders that the children live with her and that she have sole parental responsibility. 

2. The father engaged and then disengaged from the proceedings and, at a time when he was engaged, he endeavoured to file a response setting out that he consented to orders that the children live with the mother but wanted equal shared parental responsibility and communication with the children, to spend time with the children for one weekend per month, telephone communication and other times as agreed.

3. Given the serious allegations of violence and abuse to which I will allude later in these reasons, an Independent Children’s Lawyer was appointed.  The Independent Children’s Lawyer supports the mother’s application for orders, although, quite rightly, the Independent Children’s Lawyer was concerned that the father was not available as a contradictor to the mother’s claims.

4. These proceedings were commenced in July 2013 and, at the date of commencement, the mother had filed a notice of risk of abuse and an affidavit.  Given the matters contained in that affidavit and the notice of risk of abuse, this matter was to be treated as a Magellan matter and a report from the Department of Health and Human Services was obtained and is in evidence before me.  The matter first came before the Court on 4 September 2013, at which time the mother was represented and the Independent Children’s Lawyer appeared.  The proceedings were adjourned to 9 October and, again, there was a legal representative for the mother and the Independent Children’s Lawyer appeared.  On neither of those occasions did the father appear.

5. This similar situation occurred on 11 December 2013.  The matter came before the Court on 22 January 2014 and there was no appearance by the father and it came before the Court on 12 March 2014 at which time the father appeared in person.  The father said he was endeavouring to obtain legal advice and subsequently filed an affidavit on 28 March 2014 where he, in essence, denied the serious material raised by the mother. 

6. He endeavoured to file a response but did not pay the fee, although the response was on file and I have read that response.  The father appeared before the Court on 2 April before a registrar and appeared before the Court on 28 May.  On 25 June 2014, the matter came before a registrar, and there was no appearance by the father and the matter was referred for a possible undefended hearing before me.  The matter was listed for 9.30 am on 15 July 2014.  The father had provided an address for service at D Street, Town E in Victoria. 

7. On 3 July 2014, the Independent Children's Lawyer wrote to the father informing him of the date on 15 July and informing him that the matter may be dealt with in his absence if he did not attend at court.  The Independent Children's Lawyer had previously written to him on 30 June informing him of the consequences of him not engaging and urging him to engage.  The Independent Children's Lawyer had also written to the father on 3 June 2014 asking him to complete some documents.  Those documents amount to Exhibit ICL1.  On 15 July 2014 at 9.30, the matter was called in both Hobart and Parramatta and there was no appearance by the father. 

8. The proceedings were adjourned to today for finalisation of the hearing.  The father was called today and there was no appearance by him.  I am satisfied that the father knew of the proceedings and has decided not to engage in the proceedings.  The mother relies upon her affidavit sworn 15 July 2014, her affidavit filed 30 July 2013, a notice of child abuse, family violence or risk filed 30 June 2013 and her application to which I have alluded earlier. 

9. The mother is aged 42.  The father is aged 37.  On the mother’s evidence, cohabitation has been on and off over a long period of time.  It is significant to note that there were proceedings in the Federal Magistrates Court in 2008 after the birth of B but before the birth of C.  In her affidavit of 30 July 2013, the mother deposes that the relationship commenced in 2005 and ended in about 2007.  The mother deposes that she has two children of a previous relationship, F, aged 17, almost 18, and G, aged 15, almost 16.  They reside with their father on mainland Australia.  The mother deposes in her affidavit that she has had the care of the children and that care continues.  She deposes in her affidavit that she is living outside the State of Tasmania. 

10. The mother deposes that the father had little to do with the care of the children.  The mother sets out in her first affidavit a history of family violence and abuse.  She also sets out a history of sexual abuse of herself and raises an issue of sexual abuse in relation to the elder child, B.  She sets out that history in her primary affidavit of 30 July 2013 and the notice of risk of child abuse.  As I said earlier, the father filed an affidavit disputing that material, but he is not here to pursue that contradiction.

11. A report was prepared by the Department of Health and Human Services which in many ways and at some levels supports the allegations by the mother as to the allegations of sexual abuse and as to the history of violence.  Given the mother’s evidence in the two affidavits and the notice of risk of abuse and the report from the Department of Health and Human Services, it seems to me that I have little choice in these proceedings but to make the orders that the mother seeks.

12. In parenting proceedings, I am obliged to consider the matters, consider what amounts to the best interests of the children given the particular circumstances of the children as being the paramount but not sole consideration. I am to have regard to the factors set out in s 60CC of the Family Law Act 1975 (Cth) in determining what in the circumstances amount to the best interests of the children in this case. There is no issue, it appears, between the parties that the children should continue to reside with the mother. That is the view of the father; that is, at least when he was involved in the proceedings, the view of the mother; and that is the recommendation of the Independent Children’s Lawyer. Given the evidence before me, including the view of the father, there is no reason why I ought not make that determination and I will do so.

13. The question of parental responsibility was put in issue and I determine that on the basis of that sought by the mother.  This is not a case where the presumption under section 61D applies.  Because of the serious allegations of violence and abuse, it would have been defeated by s 61DA(2), and given the evidence contained in the mother’s affidavit of violence and her need to hide from the father to protect the children, it is not a matter where the Court could in those circumstances contemplate an order other than an order for sole parental responsibility.

14. The factors to which I have to have regard are as follows: (a) the benefit of the children having a meaningful relationship with both parents. In this case, there is no doubt and no issue that there is a benefit of the children having a relationship with the mother. However, given the evidence of the violence and abuse to which I have alluded to elsewhere in these reasons and given the provision of s 60CC(2A) as to the weight I ought to give the allegations of violence, it seems to me that the only appropriate step in this case is to give greater weight to the need to protect these children and, consequently, the mother in terms of the father’s behaviour.

15. I have no evidence of the views of the children except that they have had limited contact with the father and such contact has been in very difficult circumstances.  The mother is the primary carer of the children and has the support of her family where she is currently living.  The mother has accepted the responsibilities of parenthood.  The father has at times endeavoured to become involved, but other times has not done so.  There is no significant evidence as to whether the father has fulfilled his obligation to maintain the children and, in any event, in this case, it would not be of significance in these proceeding.

16. The children are currently living on the mainland and the mother sets out the reasons why in her affidavit, which is not contradicted and which approach has been supported by the Independent Children’s Lawyer.  The orders that are proposed would involve no contact or communication between the children and the father and given the history to which the mother alludes and which is perhaps in some ways supported by the report from the Department of Health and Human Services, that being the only evidence, it is inappropriate that the children be exposed to the father.

17. The mother has a capacity to care for the children.  The father’s capacity is, at best, unclear; at worst, unacceptable.  The father has not demonstrated, on the material before me, a responsibility to parenthood and the mother has done so.  Given those circumstances, it is only appropriate that the mother should have sole parental responsibility and I make it clear that parental responsibility includes a responsibility to determine where in the Commonwealth of Australia the children ought to live.

18. As to the father’s involvement, there is no evidence before me on which I could sensibly make any order for him to be involved in the care of the children, although it would be up to him, if he chooses to at some stage in the future, to attend at a Court exercising jurisdiction under the Family Law Act 1975 (Cth) and seek to argue those matters. Accordingly, I confirm the orders I have made already in these proceedings.

19. I will note in the judgment that the Independent Children’s Lawyer had met with the children, although adduced no evidence as to what was said at that time.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 July 2014.

Associate:     

Date:              17 July 2014