Wettons and Fulwood

[2010] FamCA 561

FAMILY COURT OF AUSTRALIA

WETTONS & FULWOOD [2010] FamCA 561

FAMILY LAW – CHILDREN – Undefended final orders

APPLICANT: Ms Wettons

RESPONDENT: Mr Fulwood

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 10 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Fowler J

HEARING DATE: 10 May 2010

REPRESENTATION

APPLICANT: In Person

RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

Orders

(A)The court noted that the respondent does not appear and has informed the court he does not intend any longer to participate in the proceedings.

1. All outstanding applications of the respondent seeking parenting orders are hereby dismissed.

2. All previous orders be hereby discharged save and except the Orders of

   
   

   5 February 2008.

3. The mother have sole parental responsibility for the children:

   ·J born … March 1995

   ·M born … February 1997

   ·D born … October 1999.

4. An injunction is hereby granted restraining the father and the father is hereby restrained from contacting and/or communicating with the said children, either directly and/or indirectly, and/or allowing any third party to do so or attempt to do so on his behalf.

5. The mother forthwith take all such reasonable steps to refer the said children for ongoing therapeutic intervention through CAMHS, or similar organisation.

6. The mother be at liberty to provide to the said children’s counsellor a copy of the report of Dr B dated 29 April 2010.

7. All extant applications and responses be hereby dismissed.

8. The appointment of the Independent Children’s Lawyer is terminated and the Independent Children’s Lawyer is discharged.

9. Pursuant to Section 65DA(2) and Section 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.

10. All material produced in response to subpoenas is to be returned to the party who produced it.

11. The matter is removed from the list of Active Pending Cases.

IT IS NOTED that publication of this judgment under the pseudonym Fulwood and Wettons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1140 of 2003

MS WETTONS

Applicant

And

MR FULWOOD

Respondent

And

LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before the court are proceedings between the mother and father of three children, J, age 15 years and born in March 1995, M, age 13 years, born in February 1997 and D, age 10 years, born in October 1999.

2. The paternal grandmother of those children, Mrs Fulwood, was a party to the proceedings but the issues between the grandmother and the applicant were resolved by orders made by this court in 2008.

3. The respondent to the application, Mr Fulwood, the father of the children, is presently incarcerated in gaol for offences relating to the imposition of grievous bodily harm with intent on a person with whom the mother was then residing.

4. The offences were violent and initially the father was charged with attempted murder, but that charge was subsequently not proceeded with on the basis that the father pleaded guilty to the lesser charge of inflicting grievous bodily harm with intent.

5. The incident which gave rise to the charge was one which had occurred in premises which were occupied by the mother and the children of the marriage.  Since the event, the father hasn’t had any time with the children of the marriage and although he had filed, in these proceedings, a response in which he sought certain orders, they have not been proceeded with and the father has indicated that he does not wish to be heard in the proceedings.

6. The proceedings have accordingly proceeded on an undefended basis.

7. I nevertheless am obliged to consider a number of matters relating to the orders that are sought.  Those orders are set forth in a minute which are contained in exhibit 1, submitted by the Independent Children’s Lawyer and consented to by the mother.

8. The principles governing this case are set out in the Family Law Act 1975.

9. In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount consideration.

10. In determining what is in the children’s best interest, I must consider certain matters under section 60CC of the Act.  Those matters are the primary considerations and the additional considerations set out in that section.

11. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interest being treated as paramount.

12. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and principles underlying it.

13. I am required to consider the matters set out in section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are, I will deal with those in my reasons.

14. Section 61DA requires that where:

    A parenting order in relation to a child is to be made, 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.

15. However, subsection (4) provides:

    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have shared parental responsibility for the child.

16. Section 65DAA requires me to consider that the children spend equal time or substantial and significant time with each parent where the court is proposing to make an order that the children’s parents have equal shared parental responsibility.

17. It is not my intention in this matter to make such an order.  It is clear that having regard to the fact that the husband is in gaol, that there has been substantial and quite vicious violence in this matter, that there has been an adverse effect, in accordance with the report of the family consultant of that violence on the children, and that there has been a total lack of communication between the mother and the father.  It is both impracticable and not in the children’s best interests that such an order be made.  I intend, therefore, to make an order that the mother have sole parental responsibility.

18. Given that I do not have to consider whether the child should spend equal time or substantial and significant time with the father, although I am obliged to consider whether or not the child should spend any time with the father.

19. In making my decisions under this Act, I have to take into consideration the provisions of section 60CC which set out the primary considerations of the benefit of a child having a meaningful relationship with both the child’s parents.  That, of course, is axiomatic in any average relationship.  However, in this situation, where the father has been guilty of significant violence in the presence of the children, where the children, on the report of the independent consultant, have an anxiety that further harm might be done to the mother by the father and where they have continuing feelings of anxiety generally and fear of the father as set out in that report, it is not a case where the children will benefit with having any relationship, in my view, with the father at this time.

20. It may be that when the children are of a sufficient age and maturity to make their own decisions, they will seek such a relationship.  But this court cannot, in pursuit of the children’s best interests, at this time make such an order.  There is a need to protect a child from physical and psychological harm and from him or her being subject to or exposed to abuse, neglect or family violence.  There is no evidence of any abuse by the mother.  The father’s conduct, in his attack, was an abuse of the children.  It exposed them to psychological harm and it certainly has created a state of anxiety in which these children would be likely to suffer from further psychological harm were a relationship between the children and the father to continue.

21. There is no evidence that the children have been the subject of neglect.  As to family violence, there is some evidence that the children have been, in addition to the incident referred to, subject to some violence in the mother’s home, in disputes between herself and the person with whom she was then living.  However, I understand that she’s not presently living with that person.

    The views expressed to the child and any factors such as the child’s maturity level of understanding that the court thinks, are relevant and the weight to be given.

22. This is an additional consideration of the provisions of section 60CC and the wishes of the children are set forth in the family consultant’s report.  The consultant reports that all the children have a measure of anxiety, anger or fear in relation to the father and none of them express a desire to see him or to have any contact with him.  Indeed, some of the anxiety expressed is an anxiety that he may again revisit their home and cause further distress to their mother, physically or otherwise.  And in those circumstances, it seems to me, that that supports the conclusion I have come to and the orders that I propose to make.

23. It appears on all accounts that the children have a good relationship with the mother and they have a reasonable relationship with the paternal grandmother, which has been reflected in the orders to which I have referred which have been made.  The children do not have a good relationship with the father in the circumstances of this case.  The mother has a natural reticence to facilitate an ongoing relationship with the children and their father, but does say that she would not stand in the way of a child who had attained sufficient maturity, should he so wish, and who made such a decision reasonably argued from a position of logic, to have some contact with their father.

24. Obviously, there would be some difficulty were an older child to decide to have that contact and the younger children not, if the relationship between the older and younger children continue.  However, it is noted that the mother, at least, is prepared to consider that at some future time, such a relationship may be possible.

25. The current circumstances in which the children live with their mother are ones which have given to them their main measure of security.  The family consultant reports that the children have indeed improved in their general level of anxiety and their wellbeing over the period of time that they have resided with the mother since the incident referred to.

26. The father, it seems to me, has no insight into the effect of what he has done on the children and I do not consider him to have a capacity to appropriately parent these children.

27. I think the effect of a separation of these children from their father would only operate to their wellbeing, given the events which have occurred and their present state of anxiety.  It seems to me, on the evidence of the independent consultant including as to the progress of the children in school the mother does have the capacity to provide for the emotional and intellectual needs of the children.  It seems quite clear that the father presently does not have that ability.

28. Neither child is, so far as I’m aware, of Aboriginal or Torres Strait Islander descent and so far as I’m aware, there are no matters which relate to their ethnicity or background which are of particular significance in this case.

29. As I’ve said earlier, the presumption of spending any time with the father, let alone equal time, is, I think, not to be taken into account in this matter.  It seems clear to me that the children would derive no benefit from currently spending time with their father and, indeed, on all the evidence, would derive significant detriment to their wellbeing and their health.  And in the circumstances, there will be no order that the children spend time with their father.

30. Accordingly, and for those reasons, I make orders in accordance with the short minute of order marked exhibit 1, initialled by me, and placed with the papers.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  10 May 2010