VALLETTA & HADDAD

[2015] FamCA 321

FAMILY COURT OF AUSTRALIA

VALLETTA & HADDAD [2015] FamCA 321

FAMILY LAW – CHILDREN – Undefended – where both the mother and the father failed to participate in the hearing – where there are allegations of violence, drug and alcohol abuse – where the father has mental health problems – where the father has filed a Notice of Discontinuance – where the children live with the mother – where the children have spent minimal time with the father – parental responsibility – best interests of the children

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3), 61C, 61C(1), 61DA, 61DA(2), 61DA(4), 65DAC
Family Law Rules Act 2004 (Cth) r 16.07

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Mazorski & Albright (2007) Fam LR 518

APPLICANT: Mr Valletta

RESPONDENT: Ms Haddad

INDEPENDENT CHILDREN’S LAWYER: Mr Samuel

FILE NUMBER: PAC 2362 of 2013

DATE DELIVERED: Orders: 2 March 2015
Reasons: 4 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 March 2015

REPRESENTATION

APPLICANT:	No appearance
RESPONDENT:	No appearance
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Samuel

Orders

1. That all previous parenting orders in respect of B born … 2008 and C born … 2010 (“the children”) be discharged.

2. That the mother is to have sole parental responsibility in respect of the said children.

3. The children are to live with the mother.

4. The father is to spend time with the children by agreement between the parties.

5. The father’s consent to any application by the mother for an Australian passport on behalf of either or both children is waived.

6. The parties are at liberty to restore the matter to the list and seek alternate orders within 28 days but in the event that this does not occur, these orders become final orders after the expiry of 28 days.

Notation

1. The matter is dealt with on an undefended basis as the father has filed a Notice of Discontinuance in the proceedings and the mother has failed to attend the undefended hearing today.

2. The Independent Children’s Lawyer relies upon the affidavit of the mother sworn 4 July 2013 and filed on 8 July 2013.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2362 of 2013

Mr Valletta

Applicant

And

Ms Haddad

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of B who is seven and C who is four, the children of Mr Valletta (“the father”) and Ms Haddad (“the mother”).

2. The parties commenced living together in 2000. The parties separated numerous times during their relationship and ceased their relationship on a final basis in January 2011.

3. The father commenced proceedings in the Federal Circuit Court on 5 June 2013 and the matter was subsequently transferred to this Court on 24 September 2013.  The father amended his Application on 10 June 2014. The parties attended the First day of the Less Adversarial Trial on 13 June 2014 and orders were made for the children to live with the mother and spend four hours twice per month with their father at McDonalds and supervised by the mother. The parties also consented to the appointment of a single expert, Dr D.

4. On 9 October 2014 the father filed a Notice of Discontinuance.

5. On 19 December 2014 directions were made for the matter to proceed on an undefended basis.

6. The matter was heard on 2 March 2015 on an undefended basis. The mother and the father did not attend the hearing on 2 March 2015 nor was either party legally represented.

7. On that day I made Orders proposed by the Independent Children’s Lawyer, which were in similar terms to those sought by the mother that the mother have sole parental responsibility for the two children and that the children live with her.  I further ordered that the mother may obtain Australian passports for the children without the father’s consent.

8. I also made an Order providing the parties with leave to restore the matter within 28 days of 2 March 2015 to seek alternate orders, and that if this did not occur the orders were to become final after the expiry of the 28 days.

9. These are my Reasons for the Orders made on 2 March 2015.

The proceedings

1. The father commenced these proceedings on 5 June 2013 by filing an Initiating Application. The mother was served on 16 June 2013. In the father’s application, he sought final orders that the parties have equal shared parental responsibility for the children and that the children live with the mother and spend time with him. He sought for the children to spend time with him from each Saturday for four hours for one month, gradually increasing to alternate weekends from 4.00 pm Friday to 4.00 pm Sunday, and half of the school holidays. He sought further orders as to changeover, authority in relation to the children’s medical practitioners and school reports and a mutual non-denigration order. He sought interim orders in line with these final orders.

2. The mother filed a response on 8 July 2013. The mother sought interim orders that the father spend time with the children on alternate Saturdays for two hours at McDonalds Suburb E, and at any contact centre providing supervision for parents, provided that the father meet all and any costs required to be paid to the contact centre.

3. On 24 September 2013 orders were made transferring the matter to the Family Court and an Independent Children’s Lawyer was ordered to be appointed.

4. On 13 June 2014 the first day intake of the Less Adversarial Trial occurred.  On that date it was ordered that the children live with the mother and spend time with their father on the first Saturday of each month for two hours at McDonalds, supervised by the mother.  By consent a Chapter 15 Expert, Dr D was appointed to assess various matters relating to parenting including the father’s mental health and the effect, if applicable, on his capacity to care for the children.

5. The father filed a Notice of Discontinuance on 9 October 2014.

6. On 19 December 2014 it was ordered that the Independent Children’s lawyer file a proposed minute of order by 5 January 2015, that the mother file an amended Response and a single consolidated affidavit in respect of the orders sought by her by 23 January 2015. The matter was listed for undefended hearing on 2 March 2015.

7. On 2 March 201, neither parent attended Court.  The Independent Children’s Lawyer sought that the Court proceed to deal with the matter to finality in the absence of the parents.

8. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

9. In my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the parents.  The father filed the Notice of Discontinuance, and thus he was given the adequate opportunity to proceed with the matter.  The mother has offered no explanation for her absence.

10. In light of the matter proceeding on an undefended basis, the father’s material will not be read.

11. On 2 March 2015, the Independent Children’s Lawyer relied upon material filed by the mother in the proceedings.  I made Orders as sought by the Independent Children’s Lawyer.

the evidence

1. The mother is currently 32 years old and the father is currently 33 years old.

2. The parties commenced a relationship in 2000 and lived together for a period of time. The mother says that they maintained a casual relationship after they ceased living together in 2002.

3. The parties resumed a casual relationship in 2007 and during this period the mother became pregnant with the parties’ first child, B, who was born in 2008. During this period, the mother was residing at her parent’s home, whilst studying and the father was living at a halfway house in Suburb G.

4. Following B’ birth the father began visiting the child for two hours several times a week for two weeks, then the visits dropped to one or two hours each seven to ten days. The mother accepts that the father’s time with the child was dictated by her work and study commitments and also the need to care for the child but she was encouraging of the father to spend time with B. The mother says that she was always either within sight of the father and the child, or at least within hearing. During this period, the father did not undertake any tasks to care for the child.

5. The mother says that 8 October 2009 was the first time she agreed for the father to spend unsupervised time with the child. Despite the father being verbally aggressive towards the mother at the commencement of his time, the mother still permitted the father to spend unsupervised time with the child. The father returned the child two hours later because he was “whinging too much”.

6. The parties’ second child, C, was born in 2010.

7. The parties continued their casual relationship until January 2011. The mother says the precipitating event was the father’s broken promises to spend time with B on a regular basis.

8. The father last saw the children on 23 July 2011. On that occasion the father had made arrangements to spend time with the children on the Sunday and Monday evenings, but he failed to attend.

9. The mother and the children spent Christmas morning in 2011 with the father’s family, but the father was not in attendance. During this time the father did not contact the mother to spend time with the children or any of his family.

10. The father contacted the mother in February/March 2012 and appeared to sound distressed and emotional. The father said to the mother “I’m having a major breakdown. Help me”. The mother contacted the paternal grandfather for assistance and collected the father from his boarding house. The mother took the father to the hospital, where he was admitted for several days. Whilst the mother waited with the father at the hospital he made threats to the mother including, “I’m going to kill you”.

11. Following the father’s hospitalisation, the mother received a letter from Legal Aid indicating that the father wished to spend time with the children. The parties attended mediation by telephone on 10 July 2012. The mother consented to the father spending fortnightly time with the children under her supervision. The mother proposed the time to occur on Sundays between 10.00 am and 12.00 pm at McDonalds Restaurant Suburb E and to commence on 16 December 2012.

12. In late November 2012 the father contacted the mother to request the start date of his regular time with the children to commence in February 2013 instead. The mother responded that the father should communicate with her through her solicitor. The mother did not receive any further communication in relation to this.

13. The mother is aware that the father has been diagnosed with Schizophrenia and Bipolar Disorder.

14. The mother says that she and the father have discussed the father gaining employment to assist in the financial support for the children. She says that, to the best of her knowledge, the father has not worked since the commencement of their relationship in 2001.

The Family Consultant Memorandum to Court

1. The parties’ attended a Child Dispute Conference as ordered by a Judge in the Federal Circuit Court on 10 July 2013. Each of the parents were interviewed separately on 16 September 2013. The Family Consultant prepared a Memorandum to assist the Court.

2. The father maintained during his interview with the Family Consultant that he sought orders as outlined in his Initiating Application, that the parents have equal shared parental responsibility for the children and that the children live with the mother. He further sought that he spend alternate Saturdays with the children for four hours, gradually increasing to overnight time and half of the school holidays.

3. The mother stated that she was unable to make a proposal for final orders because the father’s mental health needed to be assessed first. She stated that she wanted the children to have a relationship with their father but wanted them to be safe. She also said she would follow whatever orders the Court made.

4. The father told the Family Consultant that he had been diagnosed about seven to eight years ago with bi-polar disorder, schizophrenia with anxiety, specifically with social phobia. The father added that he was then under the care of a GP and psychologist and indicated that he did not have a case worker as he did not find it helpful.

5. The father reported that he had suffered from depression since the age of 12 and had made a suicide attempt. He added that he “hears people talking” to him through the television and was unable to listen to the radio at all and that he has trouble understanding the emotional aspects of things. The father denied that the voices instructed him to do anything in particular, he said that the voices just “put me down”. The father said he could control these voices and therefore he did not think the children would be at risk if he had an episode.

6. The father noted that his schizophrenia had been drug induced and that he had used every type of drug except heroin, and that his main drug of choice is methamphetamine.  He claimed that he did not currently use illicit drugs, having given up approximately one year prior to B’s birth.

7. The father indicated to the Family Consultant that he currently had no contact with his family.

8. The father stated that he and the mother had both been violent towards the other, and that each had taken several Apprehended Violence Orders (“AVO”s) out against the other in the past.

9. The father had no concerns about the mother’s care of the children and agreed that she prioritised her children, although he added that she consumed alcohol every day but he did not know if she drank to excess each day.

10. The mother said that there had been no physical violence by the father towards her following the birth of the children but that he had been verbally abusive. She said that the father threatened to blow up her house and car. She added that the father suffered from erratic mood swings as a result of his schizophrenia and that he had very little patience for the children. She said that the father had never been physically violent towards the children.

11. The mother told the Family Consultant that the father had used drugs all day and every day and had subsequently been diagnosed with schizophrenia and bi-polar disorder.  She described the father as unstable and witnessed him having rapid mood swings, she said he did not have the patience or skills to care for the children and feared that even when he was well he could not likely tolerate them for more than a few hours.  The mother also said that the father’s condition was severe and that he had not held a job for more than a week as he was “not really able to function”.

12. Both parents told the Family Consultant that the children found spending time with the father difficult.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting proceedings.

2. The objects 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.

3. 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).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. The primary consideration of the need to protect the child from harm carries greater weight than the consideration of the child having the benefit of a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. However, the Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].  Brown J in Mazorski & Albright said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [2] (2007) Fam LR 518

   [3] [2006] FamCA 994

4. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

5. The children have not spent any time with their father since July 2011. Prior to this, the children’s time with the father was for very short periods of time, irregular and apart from one occasion was supervised.

6. The father has played no role in the day-to-day care of the children or involved himself in making decisions about them for the whole of their lives.

7. The father initiated these proceedings and subsequently has filed a Notice of Discontinuance. It can thus be inferred that the father does not seek a meaningful relationship with the children.

8. The orders proposed by the Independent Children’s Lawyer do not provide for any specific time to be spent between the father and the children, though they do allow for that time to occur by agreement between the parties.  The mother has consistently attempted to reach agreement and has attempted on a number of occasions to have a consistent arrangement in place for the father to spend time with the children.  If the parents are unable to reach agreement about the time the father is to spend with the children, then the orders would not provide for the children to receive the benefit of a meaningful relationship with their father.  However, in my view, this case is of the type referred to by the Full Court in McCall & Clark[4] [58] where “there will be no positive benefit to be derived by the children by a court attempting to craft orders to foster a relationship” with the father where a maintenance of that relationship is not, in my view, in the children’s best interests.

   [4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

1. So far as a risk of harm is concerned, the father maintains that the children are not at risk in his care due to his mental health condition.  The evidence indicates that he can become emotional and angry, has little tolerance and patience for the children.  Although the father has not been assessed by a psychiatrist, in my view, there is a need to protect the children from potential harm whilst in his care.  The mother has to date been protective in relation to the children and seems well aware of the potential risks associated with the father’s mental health condition and the potential risk of harm to them posed by the father is mitigated by the order that the father is to spend time with the children by agreement between the parties.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. The children are still of a young age and their views are unknown.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. Little is known about the children’s relationship with each of the parents and significant other persons.  However, the mother has been the children’s sole carer throughout their lives and there is no indication that the children do not have a good relationship with her.  In the Memorandum following the Child Dispute Conference with the Family Consultant it is reported that both parents reported that the children had found spending time with their father difficult.  It is also noted that the mother reported to the Family Consultant that the father had been saddened by this and had recognised that the children needed to develop a relationship with him.

2. The mother’s affidavit indicates that the children have some contact with the paternal family.  For example, they spent Christmas morning with the father’s family in the absence of the father at Christmas time in 2011.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. The mother has made all of the decisions in relation to the children.  There have been some attempts over the years to reach agreement about arrangements so that the father could spend time with the children but these have not eventuated in a consistent pattern of such time and the father has discontinued his attempts to do so in these proceedings.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. There is no evidence before the Court to suggest that the mother has failed to fulfil her obligations in maintaining the children.

2. The mother has been the primary carer of both children for their entire lives.

3. The mother says that the father has been unemployed for the entirety of their relationship since 2001. The father does not and has not provided any financial support for the children.

Likely effect of change in the children’s circumstances

1. The orders sought by the mother and also by the Independent Children’s Lawyer are essentially a formalisation of the reality of these children’s circumstances. The father has very little involvement in the children’s lives. The father has only very limited time with the youngest child and she is now four years old. The father has not spent time with the children since July 2011.

2. Thus, there is no change in the children’s current circumstances under the orders proposed by the mother or the Independent Children’s Lawyer.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. There appears to be no practical difficulty or expense involved with the children spending time or communicating with the father in the future, so long as agreement can be reached.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

1. As the mother has had the care of the children for the entirety of their lives there is no suggestion that she is incapable of providing for their needs.  There are, however, some indications that the father may have significant difficulties in meeting the children’s needs.  It appears that he has not ever held a job, is significantly incapacitated by his mental health condition and from time to time is hospitalised.  The father also seems to have significant emotional and communication difficulties and little capacity to care for the children for more than a couple of hours.  The father’s statement to the Family Consultant that he was unwilling to see the children at a contact centre and saying that he would rather not see them at all if he was made to do so indicates that he has little understanding of the needs of his children.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. The mother has demonstrated a strong and positive attitude to parenthood.  She has acted protectively by supervising the father’s time with the children.

2. The mother has cared for and maintained the children on her own for their entire lives.

3. The father has shown that he is unable to accept his responsibilities of parenthood for his two children. He has abandoned his application to the Court to spend time with the children.

4. The father said to the Family Consultant that he was unwilling to see the children at a contact centre and said that he would rather not see them at all if he was made to do so. The father also said to the Family Consultant that although he did not consider the children to be at risk in his care, but he was willing to complete a parenting course. He suggested he had commenced a parenting program the previous year but that he did not complete it.

Family violence [include any family violence order applicable if post-June 2012] relating to the children or a member of the children’s family

1. Although the mother makes allegations of family violence, these are limited to unspecified “physical and verbal abuse” by the father in 2002 and around 2004 to 2005 prior to the birth of the children.  The mother also sets out examples of verbal threats made by the father when B was an infant and these instances seem associated with his drug use.  The mother appears to have been protective of the children and able to shield them from the father’s verbal aggression on the few occasions when they have spent time with him.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. The making of these orders will finalise the proceedings in relation to these children. The father filed his Notice of Discontinuance, which indicates that he is unlikely to further seek orders from this Court in the future, and that he was content with the orders being made as sought by the mother and the Independent Children’s Lawyer.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [5] (2006) FLC 93-286

3. In this matter, the Independent Children’s Lawyer seeks that the mother have sole parental responsibility for the two children.

4. Where the Court is to determine parental responsibility, the starting point is section 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. I am satisfied that it is not in the children’s best interests for the parents to share parental responsibility for them.  The father has not had any involvement in the long-term decision making regarding the children or in the children’s lives and appears to have significant impairment to his capacity as a result of his mental health condition.

6. The father’s mental condition also appears on the limited information available to affect his judgment and capacity to make decisions and in my view it is not in their best interests for him to exercise any parental responsibility for them.

Conclusion

1. Having regard to the role the mother has played throughout the children’s lives and the very limited relationship they have with the father together with the concerns relating to the father’s capacity and the potential risk of harm to the children while in his care and the other best interests factors referred to, I am of the view that it is in the best interests of these children to make the orders sought by the Independent Children’s Lawyer which were those originally proposed by the mother.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 4 May 2015.

Associate:

Date:  4 May 2015