VALENTINO & VALENTINO

FAMILY COURT OF AUSTRALIA

VALENTINO & VALENTINO

[2016] FamCA 768

FAMILY LAW – CHILDREN – Undefended hearing – application by the father to vary previous parenting orders – Rice & Asplund considered – where the previous orders provided for the youngest child to live with the mother and spend time with the father – where the father seeks orders that the youngest child live with the father and spend time with the mother by agreement and that he have sole parental responsibility for the child in relation to medical decisions – where the youngest child has been living with the father for six months – where the mother has not sought to communicate nor spend time with the child since the child began living with the father – where the mother was put on notice as to the father’s application – final orders made that the youngest child live with the father and spend time with the mother by agreement and that the father have sole parental responsibility in relation to medical decisions.

FAMILY LAW – CHILD SUPPORT – Application by the father to vary his child support obligations with respect to the youngest child to nil – where the youngest child currently lives with the father and has been doing so for six months – orders made as sought by the father.

Child Support (Registration and Collection) Act 1998 (Cth)
Family Law Act 1975 (Cth)

Marsden & Winch [2009] FamCAFC 152
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570

APPLICANT:

Mr Valentino

RESPONDENT:

Ms Valentino

FILE NUMBER:

MLC

1838

2012

DATE DELIVERED:

9 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

2 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swann

SOLICITOR FOR THE APPLICANT:

Mills Oakley

THE RESPONDENT:

No appearance

Orders

That paragraphs 3, 5, 6 and 12 of the Order made 4 September 2013 be discharged.
That the child J born … 2001 live with the wife and spend time with the husband by agreement.
That the child K born … 2004 (“the child”) live with the husband.
That the wife spend time and communicate with the child at such times as agreed in writing between the parties, with the wife to provide the husband with no less than 14 days prior written notice of any time she seeks to spend with the child.
That on 1 December in each year, the wife provide the husband with a calendar setting out the time she proposes to spend with the child pursuant to paragraph 4 hereof for the next 12 months in the calendar year.
That for all times that changeover does not occur at the child’s school, the husband deliver the child to the wife’s residence at the commencement of her time and the wife return the child to the husband’s residence at the conclusion of her time unless otherwise agreed in advance between the parties in writing.
That the wife be at liberty to communicate with the child by telephone on the child’s mobile number … or other electronic communication including her email address at … at reasonable times when the child is not in her care.
That the husband have sole parental responsibility for making decisions in relation to the child’s health including her attendance upon any medical or allied health professionals.
That prior to the husband making any decision pursuant to paragraph 8 hereof and save and except in the case of emergencies:-
a.the husband provide to the wife 14 days written notice of any decision he proposes to make;
b.the wife provide a written response thereto within 7 days of receiving the husband’s proposal; and
c.the husband consider the response provided by the wife, if any, prior to making a decision.
That the periodic child support payable by the husband pursuant to paragraph 21(d)(i) of Order 2 made on 5 February 2015 be varied and reduced to nil as and from 15 March 2016.
That the husband be permitted to travel overseas with the child for holidays at all reasonable times upon the provision of 28 days prior notice to the wife, such notice to include the proposed dates and places of travel, and provision of a copy travel itinerary at least 7 days prior to their departure.
That pursuant to ss 65DA(2) and 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.
That within 7 days the husband cause the following documents to be served upon the wife by registered post and at her email address …:-
a.A sealed copy of these orders;
b.Reasons for Judgment.
That the husband file and serve an affidavit of service confirming compliance with paragraph13 hereof.
That any application by the wife with respect to these orders be filed and served within 28 days, such application to be supported by an affidavit which explains the wife’s failure to appear at the hearings on 6 June 2016 and 2 August 2016 and her failure to comply with the orders of 6 June 2016.
That the husband’s Amended Initiating Application filed 10 June 2016 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valentino & Valentino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1838 of 2012

Mr Valentino

Applicant

And

Ms Valentino

Respondent

REASONS FOR JUDGMENT

Introduction

This matter came before me in a Judicial Duty List.
The applicant father, Mr Valentino (“the father”) seeks parenting orders with respect to the parties’ two youngest children, J aged 15 and K aged 11 ½ years.
Final parenting orders were made on 4 September 2013 (“the final orders”) with respect to the care of the parties’ four children. Those orders provide that the father and the mother have equal shared parental responsibility and that the children live with the mother. They also provide that the father spend time and communicate with the three older children at times as agreed and that the youngest child spend time with the father for five nights per fortnight in an alternating week pattern from after school Thursday to the commencement of school Monday in one week and from after school Thursday to the commencement of school Friday in the other week. Orders were also made for the father to spend time with the youngest child during school holidays and on other significant days.
The parties’ two older children, L and M are now aged 19 and are no longer subject to those orders.
Until 15 March 2016, all of the children continued to live with the mother. The youngest child was scheduled to spend time with the father. It is evident from the material filed on his behalf that there was a disagreement between the parties as to the arrangements for that time. Ultimately, the child was made available to spend time with the father.
Tragically, from the child’s perspective, she has had no contact nor communication with her mother or siblings, save for one telephone call, since that day. That this is so is a result of the decision by the mother to relinquish her care of the child and absent herself from the child’s life.
On 11 May 2016 the father filed an Initiating Application seeking parenting orders which will formalise the living arrangements for the child that have been in place since 15 March 2016.
The father seeks orders that the child live with him and that the older child J continue to live with the mother. He seeks further orders with respect to communication between the children and their parents and seeks a discharge of the order requiring him to provide financial support to the mother in respect of the youngest child.
That application was listed before Senior Registrar FitzGibbon on 6 June 2016. The mother did not appear at that hearing. The affidavit of Mr P filed 31 May 2016 confirms that the father’s Initiating Application and affidavit in support, both filed 10 May 2016 were left taped to the mother’s letterbox on 24 May 2016 , following four previous attendances by the process server.
In the circumstances, the Senior Registrar ordered inter alia that:-
·Until further order the child K live with the father;
·Until further order the child spend time with the mother as agreed between the parties;
·All extant applications be adjourned to the Judicial Duty List on 2 August 2016 at 10.00 am noting that such listing is necessary because of the interim and final orders sought in paragraph 10 of the father’s Initiating Application filed 11 May 2016 with respect to child support.
Pursuant to the orders of the Senior Registrar the father was required to serve sealed copies of his applications, supporting affidavits and the orders upon the mother both by ordinary mail and email. The mother was ordered to file and serve a Response to Initiating Application and affidavit in support by 11 July 2016. The mother was also ordered to appear personally at the adjourned hearing of the father’s application on 2 August 2016.
In his affidavit filed 20 July 2016, the father confirms his compliance with the orders of the Senior Registrar with respect to service of the proceedings upon the mother. He deposes at paragraph 7 of that affidavit that on 10 June 2016 his lawyers caused to be served on the mother by ordinary mail to her residential address and by electronic mail to her email address the following documents:-
·his Amended Initiating Application filed 10 June 2016;
·a sealed copy of the orders made 6 June 2016; and
·a covering letter drawing the mother’s attention to her obligations under those orders.
The father deposes at paragraph 8 of that that affidavit that his lawyers have not received any response from the mother with respect to that correspondence.
At paragraph 9 of his affidavit the father deposes that he has had no communication from the mother since the hearing on 6 June 2016 or the filing of his Amended Initiating Application on 10 June 2016.
At paragraph 14 of that affidavit the father deposes that on 14 July 2016 he instructed his lawyers to serve upon the mother notice of his intention to seek leave to proceed with his Amended Initiating Application on an undefended basis and confirmed that he would seek final orders in the terms of Annexure AV4 to that affidavit. The father confirmed at paragraph 15 of his affidavit that a letter in those terms was sent to the mother by ordinary mail and email to her email address on 14 July 2016.
Exhibit A1, being a letter from the father’s solicitor to the mother dated 20 July 2016, confirmed that the matter is listed before the Court on 2 August 2016 and that the father intends to seek final orders that day. It also served the father’s affidavit sworn 20 July 2016.
Having regard to the father’s evidence as to service I am satisfied that the mother has been accorded procedural fairness. I am satisfied that she has been served with the father’s Amended Initiating Application and the minute of proposed orders sought. Further, I am satisfied that she has had notice of his intention to seek final orders in those terms on 2 August 2016 and on an undefended basis, in the event of her failure to attend Court.
Notwithstanding the orders of the Senior Registrar requiring her to do so, the mother has filed no material in response to the father’s application.
The mother was called at the commencement of the hearing before me and failed to answer the call; she has not complied with the orders of the Senior Registrar requiring her to personally attend the hearing before me.
In the circumstances, the father seeks to proceed with his application for final parenting orders on an undefended basis. Having regard to my findings as to the mother having notice of the proceedings and of the father’s intention to seek to proceed with his application on an undefended basis in the event of her non-appearance, I am satisfied that it is appropriate that he have such leave to proceed with his application for final parenting orders. These are my Reasons for Judgment with respect to that application.

The parties

The father is aged 50 years. He is a professional and operates his own business.
The mother his aged 47 years. She is a full-time homemaker.
The parties married in 1992 and separated in 2011. They were divorced in 2013.
There are four children of the marriage, L and M, twins aged 19 years, J aged 15 and K aged 11½ years.

Material relied upon by the father

The father relies upon the following material in support of his application:-
·Amended Initiating Application filed 10 June 2016;
·Affidavit of the father filed 11 May 2016;
·Affidavit of the father filed 20 July 2016.
The orders sought by the father at Annexure AV4 to his affidavit filed 20 July 2016 are as follows:-
(1)That paragraphs 3, 5, 6 and 12 of the order made 4 September 2013 be discharged.
(2)That the child [J] born … 2001 live with the wife and spend time with the husband by agreement.
(3)That the child [K] born … 2004 (“[the child]”) live with the husband.
(4)That the wife spend time and communicate with [the child] at such times as agreed in writing between the parties, with the wife to provide the husband with no less than 14 days prior written notice of any time she seeks to spend with [the child].
(5)That on 1 December in each year, the wife provide the husband with a calendar setting out the time she proposes to spend with [the child] pursuant to paragraph 4 over the next 12 months in the calendar year.
(6)That for all times that changeover does not occur at [the child’s] school, the husband deliver [the child] to the wife’s residence at the commencement of her time and the wife return [the child] to the husband’s residence at the conclusion of her time unless otherwise agreed in advance between the parties in writing.
(7)That the wife be at liberty [to] communicate with [the child by telephone on [the child’s] mobile number … or other electronic communication including her email address at … at reasonable times when [the child] is not in her care.
(8)That the husband have sole parental responsibility for making decisions in relation to [the child’s] health including her attendance upon any medical or allied health professionals.
(9)That the periodic child support payable by the husband pursuant to the paragraph 21(d)(i) of Order Two made on 5 February 2015 be varied and/or reduced to nil as and from 15 March 2016.
(10)That the husband be permitted to travel overseas with [the child] for holidays at all reasonable times upon the provision of 28 days’ prior notice to the wife, such notice to include the proposed dates and places of travel, and provision of a copy travel itinerary at least 7 days prior to their departure.
(11)That pursuant to Sections 65DA(2) and 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.

Background

The father deposes in his affidavit filed 11 May 2016 that there has been a long history of difficulties between the parties with respect to parenting arrangements. As a result of that history, towards the end of 2015, the father drafted a proposed parenting schedule for the 2016 calendar year and caused his lawyers to provide a copy of that proposal to the mother. This occurred on 18 December 2015. That correspondence requested the mother to review the proposals and provide a response to the father’s lawyers. The father deposes that there was no response from the mother with respect to that email. Nonetheless, the father spent time with the child during the 2015-2016 long summer vacation period in accordance with the final orders.
Following the summer holiday period, on 12 January 2016, the father caused a further letter to be forwarded via email to the mother regarding his proposals for time with the child during the balance of the 2016 year. Again, there was no response from the mother in respect of that correspondence. The father then instructed his lawyers to attempt to contact the mother by telephone and through her former lawyers. Those attempts to contact the mother were met with silence.
The father deposes at paragraph 19 of his affidavit filed 11 May 2016 that he too attempted to contact the mother directly via email and SMS text messaging, without success. Messages were forwarded by him to the mother on 20, 22, 25 and 26 January 2016. As the mother did not respond to those messages, on 28 January 2016 the father attended her home address to hand-deliver the proposed calendar and the email from his lawyers dated 18 December 2015. He deposes that he placed that correspondence in the mother’s letterbox at the front gate of her home.
On 2 February 2016 the father’s lawyers forwarded a letter to the mother by registered mail, again requesting a response in relation to the proposed timetable for 2016. That letter informed the mother that in the absence of a response to his proposals that he intended to strictly adhere to the final orders in relation to time spent with the child.
On 8 February 2016 the mother’s former lawyers confirmed with the father’s lawyer that they had attempted to contact the mother without success and in the circumstances were unable to assist.
Following the commencement of Term 1 2016, on 11 February 2016 the father collected the child from school and spent time with her that weekend in accordance with the terms of the final orders. Compliance with those orders by the parties continued over the ensuing weeks.
In accordance with the final orders, the father was scheduled to spend time with the child from 3.30 pm until 7.30 pm on 15 March 2016. The father deposes that he intended to collect the child from school that day for that purpose.
The mother forwarded a text message to the father on 14 March 2016 informing him that the child did not wish to spend time with him the following day as she had a private drum lesson scheduled from 6.30 pm until 7.30 pm that day. There was an exchange of text messages between the parties that evening, with the mother asserting that the child did not want to spend time with the father. The mother sent a text message to the father at 8.36 pm on 14 March 2016 which stated:-
… You do what you want to me I am sick of seeing her crying every week and the girls are furious. Why don’t you then take care of [K] everyday and take her away from them because it makes no difference already what they all go through and ruin [Ks] [sic] life because even the teachers have seen a big change in her. We are all so sad seeing her crying every single week. I don’t really care about the court order for tomorrow you do whatever you want to me she will be going to her lesson because it makes her so happy. If you want [K] full time then you do that because this is disgusting how she is taken from them every week.
The father responded to that text confirming his intention to collect the child from school the following day.

The mother sent a further text message at 9.06 pm which stated:-
… I will let her go to her lesson tomorrow and then on Wednesday if you want to pick her up after school and take care of her everyday then you will see what she is going through. This is not a power trip game of who is the boss. I am happy for you to take [K] so you can see what is going on because I know that you are ignoring her feelings and she is really struggling with her emotions …
Notwithstanding the terms of the final orders, the child was not present at school on 15 March 2016. As a result, the father sent a number of text messages to the mother in order to make arrangements for collection of the child from her home. The father instructed his lawyers to forward an email to the mother reminding her of her obligations pursuant to the final orders. Subsequent to that email being sent the father received a telephone call from the mother who requested that he collect the child. The father collected the child from the mother’s residence that afternoon. The child stayed with the father overnight that day and has remained in his care since that time.
On 16 March 2016 the father caused his lawyers to send a further email to the mother regarding ongoing care arrangements for the child for the up-coming Term 1 holidays and Term 2. That email confirmed the father’s preparedness for the child to live with him and spend time with the mother and her siblings.
The father forwarded a further email to the mother on 30 March 2016 regarding future parenting arrangements. Again, he received no response to that email. As a result, he caused his lawyer to forward an email to the mother on 1 April 2016 regarding parenting arrangements for the child.
On 1 April 2016 the father received a text message from the mother in which she informed him that she was in hospital and that she was happy for the child to remain with him until the commencement of Term 2. The mother also inquired whether the child could stay with him for a few months until the mother “could get better”. The father responded to that message confirming his agreement to those proposals and further enquiring as to what was wrong and whether everything was okay with the mother.
The father caused his lawyers to send an email to the mother on 5 April 2016 seeking clarification as to arrangements for the child upon the mother’s return from hospital and also seeking information with respect to the care arrangements for the older child J whilst the mother was unwell. That email also sought proposals from the mother for the child to spend time with her and her siblings whilst she was living with the father. The mother did not respond to that correspondence.
The same day, under separate cover, the father’s lawyers forwarded an application for renewal of the child’s passport. The mother signed that application on 11 April 2016 and returned that application to the father.
On 11 April 2016 the father forwarded emails to the mother, L, M and J requesting that they contact him to enable arrangements to be made for the child to spend time with them. The father received no response to those emails.
On 20 April 2016 the father again caused his lawyers to write to the mother to attempt to elicit some response in relation to his proposals for future parenting arrangements. That email also confirmed that the child was distressed by her mother and sisters failure to communicate with her. It also indicated that the father proposed to make application to vary the final orders in the event that no response was received. The mother has not responded to that letter.
Neither the mother nor the child’s siblings have made any attempt to contact or communicate with the child since 15 March 2016, save for one occasion on 6 May 2016 when her sister M telephoned the child and had a brief conversation with her.
The father deposes that the child has been greatly distressed by the conduct of the mother and her siblings; he deposes that the child feels alienated and abandoned by her mother and sisters.
At the request of the father, both the Vice Principal and School Chaplain at the child’s school have attempted to contact the mother via email and telephone, without success.
The father has sought the assistance of the School Chaplain and also a private family dispute resolution practitioner in attempts to engage the mother in discussions regarding spending time with the child.
It is against that backdrop that the father makes his application for parenting orders.

The Principle in Rice & Asplund

In determining the father’s parenting application I must have regard to the principles established in Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570 (“Rice & Asplund”), where Evatt CJ noted at 78,905 as follows:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for … change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
At 78,905 to 78,906 Evatt CJ continued:-
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The Full Court considered the application of those principles in the decision of Marsden & Winch [2009] FamCAFC 152. At paragraph 58 of the judgment the Full Court described a two-step process to be followed when the principle in Rice & Asplund is invoked. That approach requires:-
(1) for a prima facie case of changed circumstances to have been established;
(2) for a consideration as to whether that case is a sufficient change of circumstance to justify embarking on a hearing.
In applying the principles established in Rice & Asplund, the best interests of the child remain the paramount consideration.
I am satisfied, having regard to the father’s evidence as to the child’s change of residence in March 2016 and the circumstances surrounding that change, including the mother’s actions in withdrawing from the child’s life, that those circumstances are sufficient to justify a reconsideration of the final orders.

Relevant Legal Principles – Parenting Matters

Section 60B(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out below I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility in relation to medical issues.
Findings are made on the balance of probabilities having regard to the evidence. In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The child has been in the father’s sole care since 15 March 2016. He has sought to engage with the mother to arrange for her to spend time with the child since that date, without success. The orders sought by the father contemplate the mother spending time and communicating with the child in the future. He proposes that an order be made that such time and communication occur at times as agreed in writing between the parties. In circumstances where the mother is non-responsive to any communication regarding such arrangements I am satisfied that the father’s proposals are appropriate.
The father’s affidavit confirms that he is supportive of the child having the opportunity of a meaningful relationship with the mother. However, in circumstances where the mother has failed to participate in these proceedings, has not attended the hearing and makes no application to spend time with the child, there can be little utility in attempting to craft orders for the child to spend time with the mother beyond those proposed by the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no suggestion that the child has been exposed to physical or psychological harm as a result of exposure to abuse, neglect or family violence.
I must now consider the additional considerations pursuant to s 60CC(3).
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child K is aged 11½ years. There is no evidence before the Court as to her views with respect to her current or future living arrangements. In circumstances where the mother has disengaged from the child’s life and has not participated in these proceedings, the child’s views are unlikely to assist in the determination of the proceedings.
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
Again there is little evidence before the Court to assist me in making findings as to the nature of the child’s relationships with her parents and other family members. The father’s evidence is that he enjoys a positive and meaningful relationship with the child and that he has actively participated in her life to the extent the final orders have permitted him.
Counsel for the father referred to and relied upon the Family Report of Ms S, clinical psychologist, which is annexed to her affidavit filed 26 June 2012 and the Children’s and Parents’ Issues Assessment prepared by Ms E, Family Consultant, dated 26 February 2013. Both documents portray the difficult relationships the children had with each of their parents. The report of Ms S dated 16 May 2012 paints a picture of the children being aligned and enmeshed with their mother in rejecting the father. As a consequence, Ms S recommended that the parties engage in family therapy.
Ms E in her report portrays a similarly bleak picture of the older children’s relationship with the father. As to the youngest child, Ms E reports at page 7:-
It was observed within the Child-Care room [the youngest child] as the only child having some contact with her father was to some visible extent ostracised by her sisters as they did not engage with her and she sat apart from them and was not included in the group games they played.
Later in her report at page 15 Ms E noted:-
The children’s sense of entitlement extends to their notions of “rights” including the opportunity to make adult choices about schools and parenting issues and to speak in the most disparaging fashion, with obvious relish, about their father and about any other professionals with whom they have recently engaged who do not wholeheartedly acquiesce to their views. Within their cosy coven there is no tolerance for the disparate view and [The youngest child] is under immense pressure to succumb to the prevailing norm. [The mother’s] feigned shock hearing her children described as rude is jiggery-pokery as they replicate her views, her words, her inappropriate anger and her self-indulgent absurdities.
Ultimately, orders were made by consent in the terms of the final orders which made provision for the child to spend time with the father as described above. The father’s time with the child J was to be in accordance with her wishes, whilst no provision was made for the father to spend time with the older children of the marriage.
The reports of both experts highlight the challenges the father has faced in maintaining his relationship with all of the children.
As the only child to maintain a relationship with her father in any meaningful sense, seemingly the child is now being punished by her mother and older siblings for maintaining that relationship, they electing to withdraw from the child’s day-to-day life. That behaviour is consistent with the observations of Ms E as set out in her 2013 report.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
As noted above, the father has spent time with the youngest child in accordance with the final orders.
Since the child moved to the father’s care in March 2016, the mother and the child’s siblings have withdrawn from her life with the child having only one telephone conversation with her sister, M, since that time.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
On 5 February 2015 final orders were made by consent with respect to both property and child support. Paragraph 21 of those orders made provision for payment of child support by the father to the mother in respect of the children. That order provides that the father pay to the mother the sum of $5,000 per month per child and in addition meet private school fees and private health insurance and gap expenses for medical, dental, orthodontic and optical expenses for the children.
The father has made payments in accordance with those orders since that time.
The father has been solely responsible for the youngest child’s support since she commenced living with him in March 2016.
As a result, the father seeks a variation of the orders with respect to child support to relieve him of the obligation to pay a periodic payment to the mother for the child’s support.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders sought by the father will formalise the arrangement that has been in place with respect to her care since March 2016.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The parents live in close proximity to each other, the mother residing in Suburb A and the father in Suburb B. The only impediment to the child spending time and communicating with her mother and siblings is their election to sever communication with her. In the event that there is a change in their attitude to spending time with the child, there is no physical or financial impediment to that occurring.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has been solely responsible for the child’s care since March 2016. He has been responsible for providing for all aspects of her physical, emotional and intellectual needs since that time. His affidavit indicates that he has readily engaged with the child’s school to ensure that she has the supports necessary to ensure her emotional well-being in what have been challenging circumstances for her since her change of residence.

The father seeks an order that he have sole responsibility for making decisions regarding the child’s health to ensure that he has the ability to engage additional professional supports for the child to assist her in adjusting to her new living arrangements as well as to support her in managing her distress at the severance of her relationship with her mother and sisters. In light of that evidence, I am satisfied that the father has provided and will continue to appropriately provide for all of the child’s physical, intellectual and emotional needs.
There is no evidence before the Court as to the mother’s current circumstances. She has indicated to the father in her text messages that she has recently been hospitalised although the nature of her illness is unknown. The mother’s conduct in withdrawing from the child’s life against a backdrop of having been her primary carer since birth demonstrates that the mother has poor insight as to the child’s needs or as to the potential impact of such behaviour upon her.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
To the extent that these matters are relevant, they are referred to earlier in this judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant to the matter.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
The reports of both Ms S and Ms E indicate that historically there have been allegations of family violence. The father raises no issue with respect to those matters in the context of his current application. There are no current family violence orders.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There can be no doubt as to the desirability of orders finalising the proceedings. In circumstances where the mother has elected not to participate in these proceedings I am satisfied that the orders sought by the father are likely to provide the child with certainty and stability. It may well be that in the future the mother seeks to re-engage with the child and involve herself in the child’s life. From the child’s perspective it would be desirable were the mother and her siblings to participate in her life.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.

Conclusion

The father seeks an order that he have sole parental responsibility for making decisions regarding the child’s health. This part of his application is motivated by his concern that the child may require counselling assistance to support her since the cessation of her contact and communication with her mother and sisters.
In light of the manner in which the child has come to be in the father’s full-time care and the failure of her mother and siblings to communicate with her since that time, I am satisfied that it is appropriate that the father have an order in those terms. It is in my view impracticable to make an order that the parties have equal shared parental responsibility with respect to medical issues. I am satisfied that it is in the child’s best interests that the father have the ability to provide whatever support and assistance the child may need to address these issues.
Given the mother’s history of care of the child I propose to make an order that the father be required to provide written notice of any decisions proposed to be made with respect to medical issues. Further, I propose to provide the mother with the opportunity to respond in writing to any proposal made by the father with respect to medical issues affecting the child and to require the father to consider the mother’s viewpoint prior to making such decisions.
The father seeks an order that the child live with him. In circumstances where the mother has withdrawn from any active involvement in the child’s day-to-day life, I am satisfied that the orders sought by the father are necessary; the orders sought by him reflect the reality of the child’s current living arrangements.
The father also seeks orders that the mother spend time and communicate with the child at times as may be agreed between the parties in writing. An order in those terms in my view is appropriate and in the child’s best interests; it leaves the door open to the mother to maintain a connection with the child. It is to be hoped from the child’s perspective that the mother avails herself of that opportunity. Similarly, the father seeks an order that the mother have liberty to communicate with the child by telephone. Again in my view an order in those terms is in the child’s best interests.
The orders sought by the father with respect to the child J are a continuation of the existing arrangements which have been in place since the final orders were made. Having regard to J’s age, I am satisfied that it is in J’s best interests that those arrangements continue.

Child Support

The father seeks an order that paragraph 21(d)(i) of the orders made by consent on 5 February 2015 be varied. That order provides as follows:-
21.That pursuant to Part 7, Divisions 4 and 5 of the Child Support (Assessment) Act 1989 (“the Assessment Act”), there be a departure from the administrative assessment of child support payable by the husband to the wife for the children;
…
(d)[K] born … 2004 (“K”) (collectively referred to as “the children”) as follows:
(i) That pursuant to Section 117(1) of the Assessment Act, the monthly rate of child support payable from the settlement date referred to in paragraph 1 hereof be fixed at the rate of $5,000 per month per child payable on the first day of each month to an account nominated in writing by the wife;
The father seeks a variation of that order to reduce his periodic child support liability with respect to the child K to nil; that is, he seeks to be relieved of the obligation of paying to the mother $5,000 per month in respect of the child and that that order be back-dated with effect from the date upon which the child came into his care, being 15 March 2016.
Section 111B of the Child Support (Registration and Collection) Act 1998 (Cth) provides that a court’s powers under the Act includes the power to:-
(i)make an order;
(i) discharging an order; or
(ii)suspending the operation of an order wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(iii)reviving wholly or in part the operation of an order that has been suspended; or
(iv)varying an order in any way.
In circumstances where the child has lived with the father since 15 March 2016, in my view there is no basis for the requirement that he continue to pay periodic child support to the mother in respect of the child. Accordingly, I will make orders as sought by the father varying the terms of the child support order such that his obligation for payment of periodic child support with respect to the child will cease as and from 16 March 2016.

Other Matters

Given the failure of the mother to appear at the hearing, I will make orders requiring the father to cause a sealed copy of these orders and my Reasons for Judgment to be served upon the mother by registered post and email. I will provide the mother with a limited opportunity to make any application with respect to these orders, subject to her meeting certain conditions. Such application must be made within 28 days of the date of these orders.
Accordingly, the orders I make are as follows:-
1.That paragraphs 3, 5, 6 and 12 of the Order made 4 September 2013 be discharged.
2.That the child J born … 2001 live with the wife and spend time with the husband by agreement.
3.That the child K born … 2004 (“the child”) live with the husband.
4.That the wife spend time and communicate with the child at such times as agreed in writing between the parties, with the wife to provide the husband with no less than 14 days prior written notice of any time she seeks to spend with the child.
5.That on 1 December in each year, the wife provide the husband with a calendar setting out the time she proposes to spend with the child pursuant to paragraph 4 hereof for the next 12 months in the calendar year.
6.That for all times that changeover does not occur at the child’s school, the husband deliver the child to the wife’s residence at the commencement of her time and the wife return the child to the husband’s residence at the conclusion of her time unless otherwise agreed in advance between the parties in writing.
7.That the wife be at liberty to communicate with the child by telephone on the child’s mobile number … or other electronic communication including her email address at … at reasonable times when the child is not in her care.
8.That the husband have sole parental responsibility for making decisions in relation to the child’s health including her attendance upon any medical or allied health professionals.
9.That prior to the husband making any decision pursuant to paragraph 8 hereof and save and except in the case of emergencies:
(a)the husband provide to the wife 14 days written notice of any decision he proposes to make;
(b)the wife provide a written response thereto within 7 days of receiving the husband’s proposal; and
(c)the husband consider the response provided by the wife, if any, prior to making a decision.
10.That the periodic child support payable by the husband pursuant to paragraph 21(d)(i) of Order 2 made on 5 February 2015 be varied and reduced to nil as and from 15 March 2016.
11.That the husband be permitted to travel overseas with the child for holidays at all reasonable times upon the provision of 28 days prior notice to the wife, such notice to include the proposed dates and places of travel, and provision of a copy travel itinerary at least 7 days prior to their departure.
12.That pursuant to ss 65DA(2) and 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.
13.That within 7 days the husband cause the following documents to be served upon the wife by registered post and at her email address …:-
(a)A sealed copy of these orders;
(b)Reasons for Judgment.
14.That the husband file and serve an affidavit of service confirming compliance with paragraph13 hereof.
15.That any application by the wife with respect to these orders be filed and served within 28 days, such application to be supported by an affidavit which explains the wife’s failure to appear at the hearings on 6 June 2016 and 2 August 2016 and her failure to comply with the orders of 6 June 2016.
16.That the husband’s Amended Initiating Application filed 10 June 2016 be otherwise dismissed.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 September 2016.

Associate:

Date: 9 September 2016

[2016] FamCA 768

9 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Remedies

Statutory Construction