Walsh and Walsh

[2017] FamCA 68

FAMILY COURT OF AUSTRALIA

WALSH & WALSH [2017] FamCA 68

FAMILY LAW – CHILDREN – Undefended hearing – Where father put on notice that the mother would seek final orders in his absence – Where no appearance by father – Where appropriate to proceed on an undefended basis – Consideration of children’s best interests – Where children to live with the mother and she have sole parental responsibility – Where children shall spend time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR (2010) 240 CLR 461
Walsh & Walsh [2016] FamCA 21

APPLICANT: Mr Walsh

RESPONDENT: Ms Walsh

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 483 of 2015

DATE DELIVERED: 13 February 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 December 2016

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Katie Smith Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That all previous parenting Orders in relation to the children B born … 2004, C born … 2006 and D born … 2006 (“the children”) are discharged.

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

3. The children shall live with the mother.

4. The child B shall spend time with the father as agreed between the parties in writing.

5. The children C and D shall spend time with the father as agreed between the parties in writing and in default of agreement as follows:

   (a)Each alternate weekend during school term from after school Friday to Monday morning school drop off commencing on the second weekend after the resumption of school term;

   (b)Each Wednesday during school term from 5.00 pm until 8.00 pm;

   (c)Each second week of the school term holidays at end of terms 1, 2 and 3 as gazetted from the State of New South Wales from 9.00 am Monday until 3.00 pm Friday;

   (d)At Christmas in even numbered years from 10.00 am Boxing Day until 5.00 pm on 27 December and then from 9.00 am on 10 January to 5.00 pm on 23 January;

   (e)At Christmas in odd numbered years from the last day of school until 9.00  am on 10 January provided that such time shall be suspended so as to ensure that the children are with the mother from 10.00 am on Boxing Day 26 December until 5.00 pm on 27 December;

   (f)Each Father’s Day where the children would not otherwise be spending time with him from after school Friday to Monday morning school drop off;

6. The father’s time with the children will be suspended on the Mother’s Day weekend in the event that Mother’s Day falls on a day when the children would otherwise be with the father.

7. That the father is at liberty to attend on occasions significant to the welfare of the children including occasions relating to school and education, sport, extracurricular activities, religious education or events and other occasions significant to the welfare of the children.  

8. For the purpose of the implementation of the above spend time with orders, the father is to collect the children from the mother’s residence at the commencement of time other than when the children are to be collected directly from school, and the father shall return the children to the mother’s residence at the conclusion of time save, wherein the time be concluded by delivering the children to school.

9. The father is granted liberty to apply in relation to the orders made today.

10. 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.

11. Otherwise all outstanding Applications and Responses are removed from the list of cases awaiting finalisation.

12. The matter be removed from the active pending cases list.

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 Walsh & Walsh 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 PARRAMATTA

FILE NUMBER: PAC483/2015

Mr Walsh

Applicant

And

Ms Walsh

Respondent

REASONS FOR JUDGMENT

introduction  

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed on 11 August 2015.

2. The application concerns the children B born in 2004, C born in 2006 and D born in 2006 (“the children”).

Background

1. The applicant father is aged 40. The respondent mother is also aged 40.

2. The parties commenced cohabitation in 2001 and were married in 2002.

3. The parties separated in April 2013, and the father left the family home in June 2013.

4. The mother says that after separation until around the end of 2014, the children lived with the mother and spent time with the father every second weekend, on Tuesday and Wednesday evenings, and half of school holidays.

5. In September 2014, the parties attended mediation. At around this time the arrangements were changed so that D and B continued to live with her and spend alternate weekends with the father and half school holidays, whilst C was spending six nights per fortnight with the father.

6. An Application for Consent Orders was filed by the parties on 5 February 2015 seeking final parenting orders by consent. The proposed orders provided for the children to live with the mother. They further provided for all three children to spend time with the father on alternate weekends from Friday at 12.00 pm to Monday at 12.00 pm and half of the school holidays, and for C to additionally spend time with the father each Monday from 12.00 pm to Wednesday at 12.00 pm.

7. The application was listed before a Registrar on 26 March 2015, and the Registrar declined to make the orders sought as a number of the orders were not drafted in a manner capable of being made into orders of the Court and further information was also required.

8. On 16 June 2015, the Registrar noted that the requisitions had not been complied with and the application for consent orders was dismissed.

9. On 11 August 2015, the father initiated parenting proceedings, seeking interim and final orders that the parents equally share parental responsibility, that the children live with the father and spend time with the mother on alternate weekends and other orders.

10. The mother filed her Response to the father’s Initiating Application on 21 August 2015.

11. The father’s Initiating Application was listed before a Registrar on 25 August 2015. It was noted that B was not seeing the father; C was spending time with the father every second weekend and D was effectively living with both parents week about. Orders were made appointing an Independent Children’s Lawyer and for the parents to attend an intake event for a Child Responsive Program.

12. On 19 October 2015, the mother filed an Application in a Case for orders permitting the children to travel overseas between 26 December 2015 and 7 January 2016.

13. The mother’s Application in a Case was heard and determined by her Honour Justice Hannam on 14 December 2015. Her Honour made interim parenting orders including that the three children live with the mother except when living with the father, that C and D live with the father on alternate weekends and that B live with the father as agreed between the parties. Her Honour also made orders permitting the children to travel internationally and orders to facilitate that travel: Walsh & Walsh [2016] FamCA 21.

14. The parties then attended mediation through the legal aid early intervention program on 15 June 2016.

15. The mother says that some consensus was reached following the mediation and that draft documents were circulated but that no response was received from the father.

Procedural fairness

1. The father’s Initiating Application was again listed before a Registrar on 11 July 2016. There was no appearance by or on behalf of the father. The Registrar adjourned the proceedings for mention to 20 September 2016. The father had filed a Notice of Address for Service on 17 February 2016 for the purposes of the proceedings identifying his address for service as E Street, Suburb F, New South Wales and identifying an email address also for the purposes of service.

2. On 20 September 2016 there was again no appearance by or on behalf of the father and the Registrar listed the proceedings before the Court for judicial case management on 15 November 2016 noting that the mother and the Independent Children’s Lawyer would be seeking to proceed on an undefended basis on that day.

3. On 15 November 2016 there was again no appearance by or on behalf of the father and orders were made directing that the solicitor for the mother effect personal service on the father of a sealed copy of the orders made on that day together with a letter informing the father of the orders made on that day and in the event that he fails to appear on the adjourned date that the mother’s application for final parenting orders will be heard on an undefended basis. The letter to the father incorporated a Minute of Orders as sought by the mother.

4. The proceedings were adjourned for undefended hearing to 13 December 2016.

5. On 1 December 2016 the mother’s solicitor, by process server, personally served the father with the orders made on 15 November 2016. The mother’s solicitor received no response from the father.

6. On 13 December 2016 there was again no appearance by or on behalf of the father who had been notified of the listing.

7. The mother’s solicitor filed in Court an Affidavit of Service evidencing that the father had been personally served with the orders made on 15 November 2016 notifying him of the listing.

8. The Court was satisfied that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis, the father having been afforded ample opportunity to engage in the proceedings.

9. The matter proceeded on an undefended basis and judgment was reserved to a date to be fixed.

10. The interim parenting orders made by her Honour Justice Hannam on 14 December 2015 were continued until final judgment.

The mother’s documents

1. The mother relied upon the following documents:

   a)Her affidavit filed on 19 October 2016;

   b)An affidavit of service filed in court on 13 December 2016 which became Exhibit “A”;

   c)The Minute of Orders Sought by the Respondent Mother which became Exhibit “B”;

   d)The Child Responsive Memorandum prepared by Family Consultant Ms G dated 31 March 2016 which became Exhibit “C”; and

   e)The father’s Notice of Address for Service filed on 17 February 2016.

The Child Responsive Program Memorandum

1. On 11 February 2016 the mother and the children attended at the Court pursuant to orders made on 25 August 2015 to participate in the Child Responsive Program interviews. The father did not attend. The father was spoken to on a later date.

2. A Child Responsive Program Memorandum (“Memorandum”) was published on 31 March 2016 following the interviews and became Exhibit “C” in these proceedings.

3. The Family Consultant made the following observations and evaluations:

   [37]…[the father] and the [the mother] appear to have maintained an acrimonious parenting relationship over a period of several years. Neither appears to trust or respect the other. Nether expressed any interest in or desire to improve their co-parenting relationship for the sake of the children. Exposure to or involvement in parental conflict is recognised as a significant contributing factor to the development of mental health problems for children as well as poorer well-being outcomes. It appeared that the children had [been] negatively affected by the parental conflict, as well as the conflict between [the father] and [the father’s new partner].

   [38] [The mother’s] use [of] physical discipline against the children is concerning as they would likely experience this as abusive. It is positive, however, that she has sought counselling to address this issue. It could not be determined in this assessment whether such behaviour on [the mother’s] part has ceased but is noted that [the father] is now proposing that the children remain living with [the mother].

   [39] It appears that the issue of which parent the children will live with is no longer in dispute because [the father] expressed his wish to withdraw from the proceedings. In addition, he indicated that he would be seeking that the current arrangements remain in place. It appears likely that [the mother] and [the father] will continue to have difficulties in negotiating some the [sic] arrangements for the children to spend time with [the father] for school holidays, particularly regarding matters related to travel. It may assist the children if clear Orders are made about when and how the children will spend school holiday time with each parent.

   (Emphasis added)

The mothers’ evidence

1. The children currently live with the mother and spend time with the father as per the interim orders made by her Honour Justice Hannam on 15 December 2015.

2. The father’s arrangements to spend time with the children have been that arrangements are put in place at his request, but that he later changes them on a unilateral basis causing the children to be split including the twins.

3. The father has sent the mother numerous requests to vary the orders currently in place which is consistent with his constant variance of the spend time with arrangements.

4. In recent times, on the weekends that the children have been going to the father’s home, the mother claims that the children have been returned to her care on the Sunday night rather than staying with the father overnight and being dropped off at school on the Monday.

5. Otherwise, the mother says the father has changed his work roster and has advised her on a couple of occasions in recent months that he is not having the children due to having booked weekends away.

6. The mother has also become aware that the father has a new partner and has been spending those weekends on which he is scheduled to have the children with the new partner. The mother alleges that there was a recent incident where the father left the children alone in the house overnight to go and spend time with his new partner.

7. The mother believes that the current orders are working and have had a calming influence on the children because the children benefit from not having to worry about the father turning up at school and removing them or otherwise changing arrangements.

8. The mother says that the children benefit from spending time with father and that a clearly defined regime is of benefit to them. The Family Consultant shared this view as recorded in the Memorandum at [39]: “It may assist the children if clear Orders are made about when and how the children will spend school holiday time with each parent.”

9. The Independent Children’s Lawyer supports the orders sought by the mother.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (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).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

2. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.

3. It is clear from the lack of engagement by the father in these proceedings and a consideration of the children’s best interests below that the presumption should not and will not apply.

4. There is thus no need to consider equal or substantial and significant time. Appropriate time will be determined by the best interest considerations as they pertain to the children.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26] 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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

1. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

2. It is evident that it is beneficial for the children to spend time with the father and that they have an important relationship with their father. However, the manner in which the children can have a meaningful relationship with the father is clouded by his own conduct in that he regularly changes the spend time with arrangements with the children. There is, therefore, a need to fashion orders that are clear about how and when the children will spend time with the father. This is supported by the Family Consultant, the Independent Children’s Lawyer and the mother.

3. It is otherwise clear that it is important for the children to continue in the primary care of the mother who at all times has been their primary carer.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above, there are significant risk factors in exposing the children to ongoing parental conflict.

2. The mother has demonstrated the capacity to protect the children and appropriately manage the children’s relationship with the father and in fact encourages, promotes and is supportive of the children’s relationship with the father.

3. This consideration, which is given primacy, is supportive of the orders as sought by the mother.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   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);

   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;

   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;

   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;

   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;

   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;

   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;

   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;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   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;

   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; and

   m)       Any other fact or circumstance that the court thinks is relevant. 

2. Many of the considerations above are relevant in the context of the background matters discussed. They are all clearly indicative of orders being made as sought by the mother.

3. All three children expressed that they would like to spend time with their father to the Family Consultant. However, while D and C indicated they would like to spend equal time and alternative weekends with their father respectively, B indicated to the Family Consultant that she doesn’t want to spend any overnight time with her father. Given the ages of the children, particularly B, their views will be given some weight.

4. All three children clearly have established relationships with both parents. D and C had positive things to say to the Family Consultant about both their mother and their father. B’s relationship with her father is difficult by her own account and she indicated that she would not like to have her “freedom” taken away by the Judge making orders about her relationship with her father. 

5. The father has unilaterally changed the arrangements for the children on a number of occasions limiting his own time with the children and often choosing to only spend time with one or two of the children rather than all three. The mother has fit her own schedule around the current orders in place regarding the children’s time with her and their father. By virtue of the fact that the father has withdrawn from proceedings it can be assumed that he has little interest in participating in future major decisions in the children’s lives.

6. The mother has been the primary carer for the children their entire lives and there is no suggestion that she has failed to maintain the children. The father ceased taking the children to school after they spent the weekend with him, later asking that the children return to the mother on Sunday night so that she could maintain their school attendance rather than him.

7. The mother is seeking orders that would not change the children’s current circumstances which she has indicated have been good for the children.

8. There is no practical difficulty associated with the children spending time with the father other than the father’s history of consistently and unilaterally changing the spend time with arrangements to suit his own needs. As such, Orders clearly defining the children’s time with the father are in the best interests of the children.

9. The issue of the capacity of each parent to provide for the needs of the children has not been explored in great depth given the father’s indication to the Family Consultant that he would be withdrawing from proceedings. While there have been concerns raised about the mother’s use of physical discipline on the children, the fact that the mother has sought counselling and the father is no longer contesting that the children live with the mother strongly indicates the mother has the capacity to provide for the needs of the children.

10. The father has shown a lackadaisical attitude towards the responsibilities of parenthood by prioritising his own needs, such as time with his new partner and his work schedule, above those of his children causing him to spend less time with the children and engage far less with aspects of their lives like schooling and extra-curricular activities than he could or should. The mother has essentially taken full responsibility for the children.  

11. Given the need for the children to have a stable schedule and consistent pattern of interaction with their father, orders as sought by the mother are the least likely to lead to the institution of further proceedings. The effect of the father changing the arrangements, a common occurrence in the past, will hopefully be minimised by Orders that the mother have sole parental responsibility and that the children have a clearly defined regime of time with the father.   

12. There are no issues of culture or family violence in these proceedings.  

Conclusion

1. The father has chosen to disengage from these proceedings.

2. Consideration of the children’s best interests as discussed above makes it clear that the orders as sought by the mother that she have sole parental responsibility for the children and that the children live with her are appropriate and should be made.

3. It is also appropriate in the circumstances discussed above that orders also be made for the children to spend some clearly defined time with the father.

4. The orders sought are supported by the Independent Children’s Lawyer.

5. Orders will be made accordingly and are set out at the forefront of these reasons for judgment.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 February 2017.

Associate: 

Date:  9 February 2017