Wells and French

[2011] FamCA 901

FAMILY COURT OF AUSTRALIA

WELLS & FRENCH [2011] FamCA 901

FAMILY LAW – CHILDREN – Undefended hearing – With whom a child lives – With whom a child spends time – With whom a child communicates – Order that children live with mother – Order that mother determine what time children spend with and communicate with the father – Order for sole parental responsibility made in favour of the mother – Injunctive orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Wells

RESPONDENT: Mr French

FILE NUMBER: HBC 1154 of 2008

DATE DELIVERED: 2 November 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gregg

SOLICITOR FOR THE APPLICANT: Fitzgerald and Browne

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. B born … 1998, C born … 2000 and D born … 2002 (“the children”) live with the mother.

2. The mother have sole parental responsibility for the children including but not limited to:-

   (a)applying solely for the issue of a passport in each of the childrens’ names; and

   (b)permitting the children to be removed from Australia for the purpose of international holidays or travel.

3. The time the children spend with Mr French (“the father”) and the communication between the children and their father be as solely determined by the mother subject to expert advice which may include:-

   (a)for fifteen minutes by telephone once per week, with the father to telephone the children;

   (b)by telephone on special occasions being each of the childrens’ birthdays, Christmas and Easter Sunday for a period of fifteen minutes, with the father to telephone the children; and

   (c)on two occasions per year at Contact Centre as agreed between the parties in writing and in respect of such Contact Centre THE COURT DIRECTS the parties attend at any orientation course or induction course reasonably required by the Centre.

4. The mother be permitted to change the childrens’ residential address from Tasmania to any other State or Territory in Australia and to provide to the father, in writing, any new telephone contact phone numbers and details in which the State the children reside, and contact address, whether that be via a solicitor or otherwise.

5. The father be restrained from approaching the children or coming within two hundred (200) metres of the childrens’ school or residence or contacting them in any way, except in accordance with these orders or in accordance with any written agreement by the mother.

6. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

7. The exhibits shall remain on the court file.

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

   IT IS CERTIFIED

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

IT IS NOTED that publication of this judgment under the pseudonym Wells & French 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 HOBART

FILE NUMBER:  HBC 1154 of 2008

Ms Wells

Applicant

And

Mr French

Respondent

REASONS FOR JUDGMENT

1. These are proceedings commenced by Ms Wells for parenting orders in relation to the three children:  B, born in 1998, C, born in 2000 and D, born in 2002.  The respondent to the proceedings is the children’s father, Mr French.  The mother seeks orders that the children live with her, that she have sole parental responsibility including parental responsibility to permit the children to leave Australia and to apply for a passport, for orders that the children spend time with the father by telephone subject to the views of the mother and any expert advice that she may take.  She does not pursue the order for costs.

2. These proceedings are heard on an undefended basis.  The application for orders together with an affidavit and notice of child abuse were filed on 21 September 2011.  The father was served with the application on 28 September 2011 in Suburb E.  He said he was the father and signed an acknowledgement of service.  The mother has given evidence today that she recognises the signature as most likely being that of the father.  I am satisfied that the father knows about these proceedings and has decided not to participate in these proceedings.  The father was called outside the Court on three occasions today and there was no appearance by him. 

3. I note that when the matter first came before the Court on 19 October 2011, it was adjourned for an undefended hearing before me today and that by letter dated 26 October 2011, which I note is annexure C to the affidavit of the mother filed 31 October 2011, the father was informed of today’s hearing.  He was called outside the Court today and did not appear.  The mother also tendered a letter dated 31 October 2011 serving her most recent affidavit.  I am satisfied this matter ought to proceed today by way of undefended hearing and that will be Exhibit M1.

4. The material upon which the mother relies is contained in her application, affidavit and notice of child abuse or family violence filed 21 September 2011 and her affidavit filed electronically on 31 October 2011.  I have had regard to all of the material contained in those affidavits.  By way of background, the father is aged 44 and lives in the Brisbane area.  The mother is aged 37 and lives in Tasmania.  The parties commenced living together in 1992.  They married in 1995 and separated on 22 May 2007.  Their marriage was dissolved in February 2009.

5. There are three children of their marriage to whom I have referred to earlier.  B, who is 13, C, who will be 11 later this year and D, who has just turned nine.  The children live with the mother.  The mother deposes of a difficult and troubled marriage with the father which ended in her being subjected to a violent and awful crime in May 2007.  In these reasons I do not intend to set out in detail the matters to which the mother was subjected as it is set out clearly in the affidavits and in the material to which she has referred.  To say the least, it was a terrifying ordeal for her and for her children.

   As a consequence of that attack, the father was sentenced to a period of time in prison and recently an interim family violence order has been granted, which presumably with the history of this matter almost inevitably will become a final family violence order.  What is very clear from the affidavit material is that notwithstanding the trauma of that attack and the significant adverse effect it has had on the mother’s health, she continues to focus on the needs of her children in a most exceptional way.  I acknowledge and congratulate her for doing so.

6. The children are troubled, as one would imagine, having been exposed to that sort of violence.  The mother is dealing with it properly, including encouraging the children from to time to time to visit their father.  My task is to put in place arrangements which meet the best interests of the children.  In doing so, I am obliged to consider the objects and principles set out in the Family Law Act 1975 (Cth) (“the Act”) which are to ensure the children have the benefit of both their parents having a meaningful involvement in the lives of the children, to the maximum extent consistent with the best interests of the children but at the same time protecting the children from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence, ensuring the children receive adequate and proper parenting and ensuring parents fulfil their duties and meet their responsibilities.

7. Section 60B(2) sets out the principles underlying that. But it’s clear that there are two things: one is that the children are entitled to know their parents provided that it is safe to do so. That is the very issue with which the mother has been struggling and it becomes clear in her affidavits. My task is to put in place orders to give effect to that which meet the best interests of the children being a paramount but not sole consideration. In determining the best interests, I have to have regard to the factors set out under section 60CC(2), (3), (4) and (4)(a) of the Act.

8. I will go through the additional considerations and then the primary considerations.  In terms of the views expressed by the children, it is clear that the children want to have some kind of contact with their father provided it is safe, and it is very clear that the children are struggling with that concept and that the mother is dealing with it in a positive, constructive and child-focused way.  In terms of the nature of the relationship between the children and the parents, it is clear that the children have a very close relationship with their mother, although, I suspect, particularly with boys in this background, there are moments when the mother will struggle from time to time.

9. Their relationship with their father is poor having regard to the history of violence and having regard to his incarceration.  The mother is willing to facilitate a relationship between the boys and the other parent provided that both the boys and she are safe and that she can live without the fear or terror of this man approaching her again.  The mother, sensibly, will put in place some arrangements but she will need to know that it meets the needs of the children and she does no further harm and that it is positive for them.  She has set that out clearly in her affidavit and I accept her evidence in that respect.

10. The circumstances of the children have been set for some time as the mother moved to Tasmania in 2008 and it appears that, as best they can, the children have settled into this state.  There will be some difficulty in the father travelling to Tasmania to see the children.  However, in the circumstance of this matter, whilst I have regard to that difficulty, it is in many ways a problem of his own making.  The mother’s capacity as a parent is not an issue bearing in mind the material before me.

11. As I said, one of the stark aspects of this was her concern that during this attack she called out and upset one of her children.  That reflected very finely upon her when she, in those circumstances, considered her children beyond herself.  I am satisfied that she has a capacity to meet the emotional, intellectual and physical needs of the children.  However, I am not satisfied in relation to the father in that regard bearing in mind his history.  The mother’s attitude to the responsibilities of parenthood has shown her to be strong and child centred.  The father’s has been shown to be self-centred and reactive.

12. There are significant issues of family violence to which I have alluded earlier, and there’s a family violence order and I have had regard to that.  The initial application was that the mother would seek the permission of the father to gain passports for the children.  I do not intend to adopt that course as it would seem far more sensible for the mother to be given parental responsibility for that purpose and not put her in a position where she unnecessarily needs to contact the father bearing in mind the background of this matter.  It would also seem in this case that to make a costs order would inflame an otherwise difficult circumstance, and I do not intend to make life more difficult for this mother or for these children than it already is.

13. I have had regard to the extent to which the parents have fulfilled their responsibilities since separation, in particular, the mother’s clear struggles on the needs to protect the boys and the needs to ensure that they have a relationship.  This is not a matter to which the presumption of equal shared parental responsibility can apply, nor should it apply, and I make no order in that respect.  I will make an order for sole parental responsibility.  Having regard to the factors under section 60CC, the orders, subject to the amendments that I said that the mother have sole parental responsibility and sole residence of the children, is entirely appropriate, and I intend to make those orders.

14. I intend to leave it to the mother to work what time the children spend with or how the children will communicate with their father.  She has displayed remarkable courage and remarkable focus with the children and that should not be in any way fettered by this Court.  Finally, the mother seeks an order to limit the overseas holidays for the children to 10 weeks.  I am aware that sometimes children in their 10^th, 11^th and 12^th years of high school will sometimes go overseas for periods of up to six months.  I do not see any need to put in place the 10 week order.

15. If the mother wants to send the children overseas for a gap year or something along those lines she ought not to need to come back to this Court or any other Court for that purpose.  She also seeks an order that she can move from Tasmania to anywhere in the Commonwealth at any time.  Bearing in mind the history of this matter, that, in my view, meets the best interests of these children for the mother to have those powers or have that authority.

16. Having regard to the history of this matter and the circumstances in which the mother must live being the victim of the crime, it seems to me appropriate that any contact that the father has with the children ought to be by some form of arrangement.  He ought not to be able to simply turn up and see the children at home or at school.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 November 2011.

Associate:

Date:              2 November 2011