VALIYAV & STEINER
[2015] FCCA 1816
•20 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALIYAV & STEINER | [2015] FCCA 1816 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements – compliance with court orders – failure to file material in the proceedings – proceedings dealt with on a final undefended basis. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60I, 61C, 61DA, 65DAA(5), 67ZBB, 69ZK |
| Jones & Dunkel (1959) 101 CLR 298 Allesch v Maunz [2000] HCA 40 Tate & Tate [2000] FamCA 1040 |
| Applicant: | MS VALIYAV |
| First Respondent: | MR STEINER |
| File Number: | AYC 75 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 20 April 2015 |
| Date of Last Submission: | 20 April 2015 |
| Delivered at: | Albury |
| Delivered on: | 20 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Sloan of James G Sloan |
| Solicitors for the Respondent: | Ms Thomas on a duty basis |
ORDERS
The children [W] born [omitted] 2000, [X] born [omitted] 2006, [Y] born [omitted] 2007 and [Z] born [omitted] 2007 shall live with their mother Ms Valiyav.
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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Valiyav & Steiner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT ALBURY |
AYC 75 of 2013
| MS VALIYAV |
Applicant
And
| MR STEINER |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to parenting arrangements for four children [W], [X], [Y] and [Z], born respectively [omitted] 2000, [omitted] 2006, [omitted] 2007 and [omitted] 2007.
The parties to the proceedings are the children’s parents being their mother, Ms Valiyav, who is the Applicant, and Mr Steiner, their father, who is the Respondent.
History of proceedings
These proceedings have a lengthy and significant history before the Court. Notwithstanding that history there would appear to be no judicial controversy before the Court and there has never been one in that the Respondent has failed, steadfastly, to file any material not even a Notice of Address for Service.
The proceedings were commenced by an Application Initiating Proceedings filed on 2 December 2013. The Application appeared to have been served relatively promptly thereafter, an Acknowledgement of Service suggesting that service was personally affected on 24 January 2014, some four weeks prior to the first return date of the proceedings before the Court, namely 24 February 2014.
The Federal Circuit Court Rules 2001[1], provide that a Respondent must, within a period of 14 days from the date of service, file a Response and other necessary documents which, in this case, initially having involved both property and parenting issues, required the filing of an Affidavit and Financial Statement[2].
[1] Federal Circuit Court Rules 2001, r. 4.03
[2] Having been commenced prior to 12 January, 2015 it was not necessary for the Respondent to file a Notice of Risk and the fact that he has failed to file any such Notice satisfied me that he does not raise any allegation of risk.
On the first return date of the proceedings documents had not been filed by the Respondent. Notwithstanding the failure by the Respondent to comply with his obligations, significant Court resources were allocated to the matter and on the basis of the Respondent’s undertaking that material would be filed and that significant issues would be raised or joined thereby.
The parties were directed to attend a Child Dispute Conference which Conference subsequently took place on 7 March 2014.
The parties were ordered to attend a Conciliation Conference with a Registrar which occurred on 16 May 2014. The parties clearly made good use of the Registrar’s time as Orders were made on a final basis which disposed of the property dispute and notwithstanding that there was no financial disclosure made by Respondent. As a consequence of those Orders a property in Queensland was retained by the Applicant and two motor vehicles and a printer were retained by the Respondent.
The matter then returned before the Court following the Conciliation Conference on 12 November 2014. On that date further Court resources were allocated to the proceedings by way of an Order for preparation of a Family Report again on the earnest promise of the Respondent that he would, on this occasion, comply with his obligation to file material. This was on the basis that serious issues relating to the welfare of these children were said to require attention and as the delays that the matter would otherwise face were significant and growing.
The Order for preparation of the Family Report was subsequently discharged as the Family Consultant seized with responsibility for the preparation of the report had been unable to elicit the cooperation of the Respondent, in arranging or attending appointments.
It would appear that the difficulties which were apparent with the Respondent’s participation in proceedings were exacerbated by
Mr Steiner being sentenced to a period of imprisonment from 25 January 2015 until approximately March 2015. However, I make clear that by the commencement of the sentence Mr Steiner had already been in contumelious disregard of his filing obligation and the Orders made as to the filing of material for over 12 months.
As a consequence of the difficulties Family Consultancy Services had encountered in arranging appointments (which difficulties were communicated to my Chambers) inquiries were made of the parties, as best as the Court could without a Notice of Address for Service for the Respondent, to ascertain that which had arisen which precluded the completion of the Report.
Liberty to restore the matter to the list which had previously been granted was utilised by the Applicant’s attorneys and the matter came before the Court on 13 February 2015. On that date the Applicant appeared by her Counsel. There was no appearance by the Respondent, although in light of the imprisonment referred to above that is perhaps explicable. It remains the responsibility of the Respondent, however, to file an Address for Service and absent such notice he is not entitled to notice. It is not for the Applicant or the Court to expend time and resources seeking to ascertain his whereabouts.
On 13 February, 2015 it was noted that the proceedings were listed at the request of the Applicant’s attorneys and on the basis that the father had failed, as ordered, to file a Response, and thus:
a)There is no judicable controversy for the Court to determine; and
b)The Application by Ms Valiyav is, and remains, undefended.
The proceedings were already listed on today’s date this date having been fixed 24 February, 2014 in anticipated completion and release of the Family Report and when the Respondent was present. A copy of Orders made that day had been forwarded to the Respondent at the residential address nominated for him in the Application Initiating Proceedings (and notwithstanding that the Respondent was not on record). The Respondent appeared at each of the Child Dispute Conference and Conciliation Conference and I am satisfied he was thus aware of all three dates which had been allocated to the matter including today’s date. Accordingly, and in the Respondent’s absence, today’s date was confirmed to afford yet one further opportunity to the Respondent to file material.
It was noted that in the event that Mr Steiner:
does not appear 2.00pm 20 April 2015 and/or has not filed a response by that date then the application of Ms Valiyav will be heard and determined on a final and undefended basis.
Mr Steiner appears today and is provided with assistance, for which the Court is extremely grateful, by a solicitor from the Legal Aid Commission.
Mr Steiner seeks the Court’s further indulgence in adjournment of the proceedings so that he might participate in them. That adjournment is opposed.
The Applicant seeks to proceed with her Application and to obtain the relief that is and has for nearly 18 months been sought by her, being one Order only, that being for the four children to live with her.
A complicating factor arises as during the course of the proceedings interim Orders were made which in fact provided for these four children to live with their father. Those Orders were made by consent on the first return date of the proceedings. The Orders provided that the children would spend time with their mother on a regular basis including, but not limited to, alternate weekends and other periods during holidays and intervening weeks of school terms.
Those Orders do not presently operate however as Orders were made in a child welfare jurisdiction and which Orders remain in force. Thus, the Court’s jurisdiction[3]is limited to making Orders in proceedings commenced or continued with the consent of the Department, which consent has not been sought or making Orders expressed to come into effect following the expiration of the Children’s Court Orders.
[3] Family Law Act 1975, s.69ZK
The Orders made in the Victorian Children’s Court provide for these children to live with their mother. Those Orders expire on 3 December 2015, some few months hence and upon the expiration of the Children’s Court Order and absent any further Order made by this Court, the interim Orders made by consent on 24 February 2014 would revive and thus would provide for the children to live with their father and spend time with their mother. That is, from that which is put by the solicitor for the father, the outcome which he would agitate for.
The father has, through his Counsel, put submissions to the Court as to his inability to meet any Order for Costs as might be made. The father suggests that he is in receipt of Centrelink benefits as his sole source of income, pays a modest rate of Child Support as a consequence thereof, and has no readily saleable assets from which costs could be met.
In light of that put from the bar table on behalf of the father there is some real issue as to whether any disadvantage and inconvenience to the mother could be met or compensated through an Order for Costs. That, of course, is not the determining issue as to the adjournment to proceedings and absent an adjournment the determination of the proceedings today. That is governed by the child’s best interests as the paramount consideration.
These children, ranging in age from 14 years, (in the case of the eldest, [W]), to eight years, in the case of the youngest, the twins [Y] and [Z], have been embroiled in litigation for some little time. Not only litigation before this Court but before the State Court.
The Child Dispute Conference Memo that was produced on 7 March 2014 suggested that, at that time, a little over 12 months ago, that the father had spoken of the possibility of an equal care arrangement and sought that the children experience consistent time with each parent. That, of course, has been a desire frustrated by events during the currency of these proceedings principle amongst which is the failure of the father to take any step reasonably required of him.
It is also clear that the parties have been involved in litigation in Magistrates Courts in Victoria relating to Intervention Orders.
The parties have been involved in litigation with others; it would seem, at least as regards the father who indicates to the Court, through his Counsel, that his recent period of imprisonment was as a consequence of breach of bail or parole regarding a breach of an Intervention Order made for the protection of a woman other than Ms Valiyav.
The present Children’s Court Order provides for the children to live with their mother. A number of other conditions are included within the Order and which principally go to concerns held by the Department as to use of drugs and/or alcohol by the father.
The Orders made by the Children’s Court require that the father undergo a course of anger management as directed by the Department, as well as requiring the father to undergo supervised alcohol and drug testing. Finally, the Orders provide for a prohibition upon the father drinking alcohol or using drugs when the children are in his presence.
Adjournment application
As already indicated there is little utility in any Order for Costs being made such as might be suggested to compensate or rectify any disadvantage which might be suffered by the Applicant through further adjournment.
There is certainly some force in the position advanced by the solicitors for the father that the mother’s disadvantage will be ameliorated through the existence of the Children’s Court Order which means that she will, during any adjournment, receive the benefit of that which she seeks in this Court; an Order that the children live in her care.
However, the difficulty does arise, as noted above, that come December this year, (and these proceedings most assuredly could not be heard before then), the Children’s Court Order will expire and the parties would revert to operate under the existing interim Orders made by this Court by consent and which provide for the children to live with their father. Accordingly, there is real prejudice to the mother, or at least potentially so.
The parties have each suggested that there is a substantial history of family violence.
The father suggests to the Family Consultant who met with the parties that he had been assaulted by the mother on one occasion at or about the children’s school.
The mother suggests, both through her Affidavit material and as reported in the Child Dispute Conference Memo, that both she and the children have been victims of and/or exposed to family violence at the hands of the father and for a significant period of time. The mother suggests this family violence has been primarily founded in verbal abuse but extending at other times to other alleged forms of violence.
What is noted in the Child Dispute Conference Memo as issues impeding resolution is the following:
·The children’s exposure to family violence and parental conflict;
·The children have not had consistent ongoing access to both parents on occasion since the parents’ separation.
The latter of the above issues is of particular concern. These parents have not been able to achieve any stability for these children for some years.
I am not satisfied that any reasonable explanation has been provided by the father for his failure to properly participate in these proceedings. For the two months of his imprisonment there is some explanation. But the father is otherwise silent as to his complete failure to participate for over 12 months.
Certainly it is comforting that the resources that have been allocated by the Court have had some benefit to the parties, particularly in the resolution of their property dispute with each other. However, even the efficacy of that arrangement is questionable in light of the fact that the Orders were made absent any disclosure or filing of material by the father. The mother and her attorneys should never have been put in that position.
The father certainly was not in a position to attend to his affairs during the period of his imprisonment from 25 January 2015 until mid-March 2015. However, as is observed and submitted by Counsel for the mother, the father has had an inordinate period of time prior to his incarceration, and indeed since, to attend to his affairs. From the date of service in January 2014 to the present the father has had a total period now of some 16 months. During that period he has done nothing regarding filing material, advancing his cause or appropriately articulating his position or his concerns.
I propose to treat the matters the father has raised with the Family Consultant as matters that concern him with the same urgency and seriousness as the father. Something akin to a Jones & Dunkel (1959) 101 CLR 298 inference can be drawn. One would think if the father had serious concerns he would act to be protective by, at least, filing some document. He has not. I infer from that failure, in the absence of the father’s explanation for inaction that they are not serious concerns.
It may well be that the father has had difficulty obtaining legal advice, assistance or representation. Many litigants do. Indeed, by reference to the Annual Report of the Federal Circuit Court, in not less than 40 per cent of cases one or both parties are unrepresented and are left to deal with their own litigation and attend to their own affairs. The vast majority of those litigants are able to do so even though it is difficult. The father, for some inexplicable reason, has failed to take any active step.
The mother asserts her belief, and it cannot be placed any higher, that the father’s inaction is reflective of his descent into drug and alcohol use, something which she suggests has typified his past behaviour. That is the mother’s belief but there is no evidence on which a finding could be safely founded. It might be inferred that it could well be an explanation when none other is offered but I need not do so. Certainly the mother’s belief is consistent with the conditions that were sought and obtained by the Department of Human Services in the Children’s Court proceedings. The provision of explanation for delay is a matter for the father not a matter for speculation or inference. He has failed to offer anything compelling other than the period of his imprisonment.
In November 2014 an Order was made, it would seem at least the second such Order, which required that the father file and serve a Response and supporting material by, “no later than close of business 19 December 2014 and not otherwise”. No explanation is offered as to why, prior to Christmas 2014, this obligation was not attended to. That is concerning particularly as, by that time, the father had had a full 11 months to file material.
Since his release from incarceration the father has had a further period of about four weeks, double the period that the Federal Circuit Court Rules 2001 provide for the filing of the Response. In those circumstances and being conscious of the Judgment of the plurality of their Honours comprising the High Court in Allesch v Maunz [2000] HCA 40 due process requires nothing more than a litigant being afforded the opportunity to participate in proceedings, not to participate at a time of their choosing.
A Response should have been filed by Mr Steiner, in accordance with the Court’s rules, by late January/early February 2014. It is now April 2015 and notwithstanding that passage of 14 months and the father being ordered and directed on at least three occasions to file material, he has failed to do so.
In all of those circumstances I am not satisfied that a basis for adjournment is made out.
I am not satisfied that the father would be denied due process through a failure to adjourn proceedings. He has had a more than abundant opportunity to participate and has failed and refused to do so. By reference to authorities such as Tate & Tate [2000] FamCA 1040 the Court is entitled to expect compliance with its Orders including those requiring the filing of material and when non-compliance of such significant and unexplained proportions as this case arises it is difficult to see the purpose let alone the basis of adjournment.
As regards purpose of adjournment there cannot be one. There is no judiciable controversy. The matter is entirely undefended. Appearing after 14 months and with no case before the Court does not generate controversy. In the absence of a Response, especially after 14 months of opportunity to attend to that basic obligation, let alone 3 Orders that it be so, the Applicant is entitled to have their case heard and, subject to satisfying the Court that the Order sought is in the child’s best interests, the benefit of that sought.
Whilst it might be suggested that to adopt such view is contrary to the informality that the Federal Circuit Court is required to operate with I simply do not accept that is so.
The objects of the Federal Circuit Court of Australia Act 1999 (see section 3) provides:
The other objects of this Act are:
(a) to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power.
Section 42 of the Act certainly mandates that the Court “…must proceed without undue formality”. However, that mandate concludes with the additional requirement to “….endeavour to ensure that the proceedings are not protracted”.
This is a Court and required to act like one, hearing and determining judiciable controversies and dispensing justice. If a party wishes to participate in the decision then they are required to file and enter an appearance and to prosecute a case. They are required to do what is necessary to prepare the case and including attending to such matters as they may be ordered to. The Federal Circuit Court is a Court of general Federal jurisdiction. Such lax attitude to participation in proceedings as the Respondent has demonstrated would not be tolerated in areas of the Court’s jurisdiction other than family law (or by other Courts of equal status such as State District and County Courts) and will not be tolerated here.
Whilst the Court is required to act “informally” that does not extend to abandoning all process or condoning contumelious disregard of the Court’s Orders.
I am satisfied that “informality” requires simplicity and flexibility of process not its abandonment. It requires some accommodation of disadvantage, disability and, especially in the case of self-represented parties, lack of knowledge of process. However, whilst that might be met through, for example, a more generous time period being allowed to attend to something, the Court has a responsibility to the litigants in each case, the body of litigants seeking to use the Court and its resources and to the community at large, to ensure that:
a)Due process is applied to both parties equally;
b)The same rules are applied to all like litigants and whether represented or not; and
c)The Court’s resources are properly managed and applied.
Some further clue as to “informality” is given by the remaining objects requiring both “streamlined procedures” and use of alternative dispute resolution. Section 14 adds to what might be understood as informality whereby Court is required to hear matters and determine them completely and with an avoidance of multiple proceedings. This is consistent with the obligation imposed by section 42 to ensure proceedings are not protracted.
Similarly, sections 51, 55 and 57 hint as to the desired interpretation of informality allowing limits to be imposed on the length of documents or oral argument and providing that “formal defects” should not automatically invalidate proceedings.
The Court has been flexible, indeed generous and accommodating. The Court has allocated significant and scant resources to this case that absent a Response generating a judiciable controversy were not warranted. The Court’s ever diminishing resources have, on one level, been wasted. Certainly other more compliant and deserving litigants have not had the benefit of that given to this case.
The Court has been flexible, making Orders for various Court processes – a Child Dispute Conference, Conciliation Conference and Family Report – all without a Response and in response to the assurance that one would be filed and in circumstances where significant matters pertaining to the children’s wellbeing were raised. Such Orders were made and resources allocated to the matter to ensure the primacy of the children’s best interests as section 60CA of the Family Law Act 1975 requires and to discharge the Court’s obligations pursuant to section 67ZBB of the Act.
The Court’s Orders and means of seeking to advance the matter has been simple. The Respondent was required to file a Response and to attend appointments. Nothing more.
I am satisfied that the mother would be denied due process if the proceedings were further adjourned. She has done all that is required of her. She is entitled, as it were, to her day in Court and that day is today, as was clearly noted in the Orders of 13 February 2015, indeed, as was noted in the Orders of 12 November 2014, some six months ago.
The father cannot be heard to complain that he is unaware of the probable consequence of his failure to file material. It has been stated to him clearly whilst in Court and in language which I have no doubt he would have understood. It has, as well, been set out in the Orders that have been issued to him, notwithstanding that they are interlocutory and administrative Orders rather than substantive Orders and, more importantly, notwithstanding that he has not, at any time, filed a Notice of Address for Service which would warrant or compel the provision of such material to him.
I have no doubt that the father was aware of his need to file a Response before today if he wished to be heard and that appearing without a Response filed was not enough. He has chosen to file nothing and advanced no basis for his failure.
The proceedings are entirely undefended. The proceedings will not be adjourned. The matter will proceed today.
Finally, I am satisfied that the children’s best interests demand that the matter be heard and determined. These children have, during the course of this litigation and the corresponding and overlapping litigation in the various State Courts had numerous changes to their arrangements. Those arrangements have not advantaged these children. They have moved households repeatedly. They have had their mother come and go from their life, on the mother’s allegation, through her preclusion from participation rather than any active desire that it be so and now they have had their father come and go from their life also.
In all of those circumstances, I am satisfied these children deserve and require a completion of this litigation so that they can continue to do the best they can to reach their potential, notwithstanding the impediments that have been put in their path by their parents, one, other or both. Accordingly, the Application for adjournment is refused.
Material Considered and Proposals
In dealing with the substantive Application I have read and considered each of the documents that have been filed in the proceedings to date. They are all documents filed by Ms Valiyav. I also have the benefit of the Child Dispute Conference Memo to which I have already referred.
The mother seeks only an Order that the children live with her and that Order would, of necessity, need to be expressed to come into effect as and from the expiration of the Children’s Court Order, thus, as and from 2 December 2015.
Legislative Pathway
In dealing with the Application I must consider the legislative pathway.
I am reminded by section 60CA of the Act that in all that is done the child’s best interests are the paramount consideration.
I must then turn to the objects and principles in section 60B of the Act which I incorporate herein.
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that 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.
(2) The principles underlying these objects 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).
The Court must ensure that the best interests of children are met by ensuring that the children have the benefit of both parents having a meaningful involvement in their lives and that the children are protected from physical or psychological harm.
The mother raises material of concern regarding the children’s past exposure to family violence and drug use whilst in the care of the father. Without needing to proceed to make concluded findings of fact with respect to those issues, clearly they are issues of concern. There is certainly some basis for the mother’s concerns beyond mere speculation as demonstrated by her evidence as well as that which flows from the Department of Family and Community Service intervention.
I have no reason to doubt the mother’s evidence and as the mother’s evidence is entirely unchallenged, notwithstanding that there has been an abundant opportunity for it to be so challenged, to the extent that it is within her personal knowledge and information I accept it as truthful and as more probably correct than not.
The mother’s evidence makes clear that the children, in their present placement, are doing as well as might be expected. That is in no way intended to be pejorative of these children. They have had a very unsettled upbringing, at least in the last few years, if not longer. The mother is providing a level of care for these children which is adequate and appropriate if not beyond.
The children are able, whilst remaining in the mother’s care, to have a meaningful involvement with both of the parents. The father submits through his solicitor that the parties by and large are able to make consensual arrangements with each other in relation to the children and/or that he is hopeful that the parties will return to their past ability to do so.
To that extent I can be satisfied that the present arrangement is serving the children well and fulfilling the objects of the legislation. It is certainly not challenged or contested by the father or suggested to be other than meeting the children’s needs.
If the matter had come on with some urgency or on an ex-parte basis I would have some reason to be cautious in unreservedly accepting the mother’s evidence. However, the father has had a full 16 months to respond and has not done so. Thus, one can infer that there is nothing of great significance that he would seek to raise to cast doubt upon the mother’s evidence or the quality of the care she provides.
On that basis the objects and principles can be met and achieved well, as they presently are, through a continuation of the present arrangement.
I am also conscious that the Order that the mother seeks, singular as it is, will not significantly prejudice the father’s position. Should the father desire to bring an Application to spend time with the children on a more formal basis, or to seek extensive Orders with respect to their care arrangements in the future, he is, of course, able to do so. He has not been precluded at any point in these proceedings from doing so. The only impediment has been his own lack of will.
I am further satisfied that not only do the present arrangements meet the children’s needs and interests and serve the objects and principles of the legislation, but they do not, in any way, obviate against the provision of due process to the father or his capacity to continue involvement with the children or prosecute an Application for same should he need to do so in the future.
The principles underlying the objects provide that, save if it is found to be contrary to a child’s best interests, children have a right to know and be cared for by both of their parents and to spend time on a regular basis with both of their parents. There is nothing to suggest that the mother impedes that being so. Indeed, it would seem, on the basis of that put by the parties and each of them, to be abundantly demonstrated through recent actions.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies, and if it does apply, determine whether it is rebutted. The mother does not seek any Order with respect to parental responsibility. Accordingly, I am satisfied that section 61C of the Act would apply and the parties would have joint and several responsibility for these children such that each parent would have parental responsibility for these children at such times as they are in their care. That does not impact upon the application or rebuttal of the presumption however.
The presumption does not apply in circumstances whereby the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence as defined in sections 4 and 4AB of the Act respectively.
The mother’s evidence speaks clearly to the past perpetration of family violence by the father. Whilst I have been satisfied above that it is not necessary to make any finding of fact for the purpose of determining the adjournment Application, I am satisfied that for the purpose of determining the children’s best interests I am more than entitled to do so and I do so.
The mother has led clear evidence with respect to family violence which is unchallenged, indeed entirely unanswered. I accept her evidence as plausible and totally consistent and more probably correct. On that basis there are reasonable grounds to believe that the father has engaged in one or both of those behaviours, abuse arising not only through serious neglect, although I do not pursue that avenue further whilst it is raised on the evidence, but also the children’s exposure to family violence.
Lest I am wrong in that regard I am satisfied the presumption would be rebutted as being contrary to the children’s best interests. On the evidence that is available the ability of the parties to communicate is less than resplendent and the arrangements that have come into being through the involvement of State Welfare Agencies is such as to suggest that the parties are unable to consensually and cooperatively make such arrangements. Accordingly, I am satisfied the presumption does not apply and, if it does apply, that it is rebutted.
I am not then obliged to consider equal or substantial and significant time before considering any other time arrangement. There is no Application before this Court seeking such Orders for time in any event. However, even absent such Application, if the presumption had applied the Court might have some obligation to consider such matters. As there is no Application and the presumption does not apply or is rebutted I am not required to do so.
I propose to consider all arrangements at large by reference to the Application before the Court, being the mother’s plea that the children live with her, and a consideration of section 60CC of the Act and incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations in section 60CC(2), being:
a)The benefit to the children of having a meaningful relationship with both parents; and
b)The need to protect the children from physical or psychological harm, their exposure to abuse, neglect or family violence. The latter is prioritised over the former.
These children have the benefit of a relationship, whether it is meaningful or not is difficult to discern at this time, with both of their parents. Clearly the children’s relationship with their mother, based on an acceptance of her evidence, is meaningful. There is no significant evidence of the nature of the father’s relationship.
The children have a relationship with their father. I need not concern myself as to whether it can be appropriately described as meaningful at this time. There are some factors which might obviate against such a finding even if there were more evidence available. Certainly the children have spent periods of time living in their father’s home on a full-time basis. However, during those periods it is suggested that the children have been exposed to significant violence and conflict as well as significant drug and/or alcohol use. In those circumstances, whether the relationship that would have developed would have been meaningful or not is difficult to consider.
The development of a meaningful relationship and time are not equal, nor are they equated, and to conflate one with the other would be an error. The children have certainly spent significant periods with their father and for present purposes I need not pursue further whether their relationship is meaningful, suffice that there is a relationship and that I am satisfied a relationship will continue and will be supported and encouraged by the mother.
As regards the need to protect the children from physical or psychological harm, their exposure to abuse, neglect or family violence, clearly the weight of evidence suggests that the occasions in the past when the children have been so exposed, particularly to family violence, has been as a consequence of the father’s behaviours.
Additional considerations:
Views expressed by the children
There is no real evidence regarding the children’s views and certainly no evidence from any objective source. The only evidence is the mother’s evidence, which I accept, that the children are happy and content in her care and are progressing well and performing as well as might be expected.
The mother has annexed to the earlier of her Affidavits various school reports of the children which suggest that they are doing reasonably well in the circumstances, although they are somewhat behind and their performance is at a basic rather than sound, high or outstanding level. That is perhaps explained by the absences that the children have experienced throughout 2013, the time when they were in the father’s care. Those absences would appear to be somewhat extensive.
The children’s school attendance and their general school performance have begun to improve since coming into the mother’s care. I have no concern that it will continue to improve through a continuation of the present care arrangements.
The children, I accept, would be conscious to have stability in their lives, to be able to continue and complete their schooling, and to do so with a minimum of disruption. They are well and adequately cared for in the mother’s home and I do not see any basis to interfere in that arrangement.
Nature of the children’s relationship with each parent and other persons
The mother’s evidence makes clear that the children enjoy an excellent relationship with her and a developing relationship with her partner and the young infant child of that relationship. Accordingly, I am satisfied that the children’s relationships, in their present placement, would support a continuation of that placement.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making for the children or to spend time or communicate with them
There is nothing to suggest that either parent has failed to spend time or communicate with these children. There is certainly evidence from the mother that she has previously been precluded from spending time or communicating with the children when they lived in the father’s care.
What is glaringly apparent is the father’s failure to participate in decision making for these children, principally through his failure to engage in these proceedings, in any meaningful way.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The mother maintains the children almost solely. The father pays Child Support, as assessed, but it is minimal.
Likely effect of change, including separation from either parent or other person or child
These children are well settled in their placement with their mother which must continue until the end of the year, irrespective of any Order made by this Court. There is a child welfare Order made by a State Court which this Court has no jurisdiction to interfere with. Accordingly, the children will be in the mother’s care for at least the next eight months. I see no basis upon which to change or interfere with that arrangement. Indeed the weight of evidence, being the mother’s evidence only, but in circumstances whereby the father has had an abundant opportunity to file material, would suggest real benefit to these children of a continuation of those arrangements. That does not preclude nor dictate the time that these children will spend with their father. It simply secures their placement.
I am not satisfied that there is any evidence that suggests that there would be benefit to the children from interfering in those relationships or those arrangements, including separation from their younger sibling.
Practical difficulty and expense
There would not appear to be any logistical difficulties.
I otherwise incorporate section 65DAA(5) which it is trite to observe, goes well beyond logistical difficulties and practicalities.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents’ current and future capacity to implement arrangements is somewhat limited. That has been so not only through the father’s incarceration but through the past history of family violence that the mother’s evidence speaks of.
The parents’ current and future capacity to communicate and resolve difficulties is also problematic. Whilst the father is optimistic as to its present and past state, communication would appear to be somewhat limited.
The impact of the arrangement on the children, I am satisfied, is addressed above. It would, on balance, be detrimental if any interference with present arrangements were to occur.
Capacity of each parent and others to provide for the children’s needs
On the available evidence there is no concern with the mother’s capacity to meet the children’s emotional and intellectual needs or their day-to-day practical and physical needs. The father’s capacity must be questioned as a consequence of the Departmental involvement and the Department’s removal of the children from the father’s care. At the time of that involvement and intervention, the children were living with their father. They were removed from his care by the Department and the Children’s Court clearly accepted that Orders could and should be made which continued their removal from the father’s care at least until December this year. Thus, on the evidence there is no question with respect to the mother’s capacity and there are questions regarding the father’s.
Maturity, sex, lifestyle and background of the children
I am not satisfied that this factor requires further consideration other than as addressed above.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander, or at least the evidence does not disclose that it is so. Thus, the children similarly do not identify.
Attitude to the children and to the responsibilities of parenthood demonstrated by each parent
The mother’s attitude is abundantly demonstrated by the arrangements she has put into place for the children’s care since their placement into her care by the Department. The arrangements are meeting the children’s needs.
The father’s attitude is somewhat questioned, particularly as a consequence of the intervention which the Department considered necessary.
Family violence
The mother raises significant allegations of family violence. It must be remembered that the father also alleges that the mother has perpetrated family violence towards him. Indeed, at one point in time, it is clear that he obtained an Intervention Order against her. It would seem that the mother has, in the past, made complaints to the Police and the Department of Community Services regarding her treatment at the hands of the father. It would seem further that other persons have clearly done so, the father having served a period of imprisonment for breach of bail relating to the alleged breach of an Intervention Order against a person other than the mother. Those factors would all support a continuation of the children’s placement where they are.
Family violence orders
There are none that are relevant that exist at present.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
The Orders that I propose to make will not preclude or interfere, in any fashion, with the father’s ability to bring a fresh Application, including an Application to spend time with the children on such basis as he considers necessary or desirable and subject to first fulfilling the requirements of section 60I of the Act.
Accordingly, I am satisfied that the Order that I make will neither avoid nor compel future proceedings. It is a matter for the father in the future.
I am satisfied that this factor would support the conclusion of these proceedings. The matter, if adjourned, will simply give yet another opportunity for conflict and dispute between these parents. It may well not do so. Any adjournment serves no purpose whatsoever as the father has not filed material and his “track record” would demonstrate that it is unlikely. To adjourn the proceedings in those circumstances, especially when I am satisfied that the Order that is sought by the mother is appropriate and a basis for the making of that Order is established, would be mischievous. The proceedings would simply be extended and continued for no purpose whatsoever and with potential prejudice to these children who require stability and resolution.
I am satisfied, in accordance with the above findings, that failing to make the Order the mother seeks would be a denial of due process to the mother, and more importantly, disadvantageous to these children and their wellbeing.
For those reasons I am satisfied that the Order that the mother seeks is appropriate, in the children’s best interests and can safely be made without infringing upon the due process rights of these parents or either of them.
I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 1 July 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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