White and Banning
[2010] FMCAfam 444
•22 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITE & BANNING | [2010] FMCAfam 444 |
| FAMILY LAW – Children – parenting orders – parental responsibility best interests of the child. |
| Family Law Act 1975 (Cth) ss.60CA, 60CC |
| Applicant: | MR WHITE |
| Respondent: | MS BANNING |
| File Number: | SYM 5397 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2010 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Mr Massey |
| Solicitors for the Respondent: | Barber & Massey Solicitors |
ORDERS
That all prior parenting orders with respect to the child [X] born [in] 2004 be discharged.
That the child [X] born [in] 2004 live with the Mother.
That the Mother have sole parental responsibility for the child [X] born [in] 2004.
That the child [X] born [in] 2004 spend time and communicate with the Father as agreed between the parties from time to time.
That should the Father seek to spend time with and or communicate with the child in the future he shall within 7 days of any such request provide the Mother with the names and contact details of 2 psychologists who are qualified family therapist practicing in the Sydney metropolitan area within a reasonable distance by public transport from the Mother’s home and the Mother shall within a further 7 days nominate one of them for the purposes of Order 6.
That within 7days after nomination by the Mother pursuant to Order 5 each of the parties shall contact that psychologist to make an appointment for an intake assessment interview and attend that appointment and all subsequent appointments made by that psychologist for the purpose of family therapy and shall follow all recommendations of that psychologist in relation to the child spending time with and communicating with the Father.
That the parties are hereby authorized to provide the psychologist nominated for the purposes of Order 6 with copies of all affidavits filed in these proceedings, copies of all Family reports prepared for the purposes of these proceedings and a copy of these Orders.
That the Father shall pay the cost of all consultations for each of the parties with the psychologist nominated for the purposes of Order 6.
That each party shall within 7 days from the date of this Order provide to the other his or her mobile telephone number and each party shall be permitted to telephone the other for the purposes of Order 5.
That the Mother is to notify the Father in the event of admission to hospital under emergency conditions, no later than 24 hours after such admission, such notification to include the name and location of the hospital to which the Child has been admitted.
That these orders constitute authority to any school attended by the Child to provide the Father with the following:
(i)Copies of school reports and other information of a like nature including prospective sporting, social and educational events and school photographs within a reasonable period.
(ii)Details of all parent teacher nights in relation to the Child’s progress at the Child’s school and the Father is permitted to contact the Child’s school to make arrangements to attend the parent/teacher night at a time when the Mother is not in attendance.
That the Father shall ensure that the Child is in his care throughout the whole of each period of time that the Child spends time with him pursuant to these orders.
That the Father shall not allow the Mother’s sister Ms B to be in the presence of the Child at any time whilst the Child is in his care.
That the parties shall participate in Family Dispute Resolution to discuss the arrangements for the Child in the event that any dispute arises between them with respect to the implementation of these orders.
That without admission the Father be and is hereby restrained from consuming any alcohol or using any non prescription drugs for a period of 12 hours prior to and whilst spending time with or communicating with the Child.
That for a period of 6 months from the date on which he next spends time with the Child the Father shall submit himself to random supervised blood tests within 24 hours of a request by the Mother to undertake such test including liver function tests, blood alcohol levels, full blood counts and carbohydrate deficient transferease test (CDT) tests and shall provide to the Mother the results of each test.
IT IS NOTED that publication of this judgment under the pseudonym White & Banning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 5397 of 2006
| MR WHITE |
Applicant
And
| MS BANNING |
Respondent
REASONS FOR JUDGMENT
The application before the Court concerns parenting orders for a little girl called [X], who was born [in] 2004. She lives with her mother and has consistently done so.
The application was brought by the Father. However, he has not attended Court today and indeed, did not attend Court on the last occasion when the matter was before Court, which was 22nd February 2010. I am satisfied, however, that he has been made aware of these proceedings by means of the letters forwarded to him by the Mother’s solicitor, Mr Massey, on 8th and 16th April 2010.
I note that in the letter of 8th April 2010, which I have admitted into evidence and marked as Exhibit 1, Mr Massey advised the Applicant:
We advise you that this matter is listed for final hearing before the Court at 97 - 99 Goulbourn Street, Sydney, at 10.00 am on 22 April 2010. If you are not present and or legally represented before the Court on that date the Court may make final parenting Orders in your absence.
We suggest that you seek legal advice in relation to the contents of this letter.
Well, if the Father did seek legal advice, he has not obtained any representation before the Court today. He has not attended Court today. He has not communicated with the Court, and I understand that he has not communicated with Mr Massey, who acts for the Mother. He appears to have done nothing.
He was called by my associate three times outside the Court, and no-one answered the call. I am prepared to proceed on the basis that the Father does not intend to attend Court today, and in my belief, this is a matter that is ready to be finalised. Indeed, it is in the interests of the child [X] that the proceedings should be finalised.
I have had the benefit of reading an extensive case outline prepared by the Mother’s solicitor. It is unnecessary for me to read onto the record all of the matters set out in this document, but it gives a very useful history.
[X] was born [in] 2004. Her mother and father did not live together, but between [X]’s birth and August of 2004 the Father spent various short periods of time with her. However, from August 2004 through to December 2006 he did not spend any time with her.
The Court made some parenting orders by consent on 6th November 2006, and then during the months of December 2006 and January 2007 the Father spent some time with [X] at the [omitted] Children’s Contact Service. However, from after 6th January 2007 until 3rd May 2008 the Father and Child did not spend any time together.
On 3rd May 2008, [X] spent two hours with the father in the presence of the Mother’s current partner, Mr K. Between then and [X]’s birthday on [date omitted] 2009 the Father and [X] spent time together, but this was all in the presence of the Mother and/or alternatively in the presence of Mr K.
On 16th June 2009 consent orders were made, and some orders were made on a contested basis. However, it is established that between 10 June and today’s date [X] has not spent any time with her father, nor has there been any communication.
The Mother, not surprisingly, wishes to finalise the matter and have a set of orders that give some finality but also provide for a situation if the Father does decide that he wishes to play more of a role in his natural daughter’s life.
I have heard evidence from the Mother and from Mr K, and it is clear that [X] seems to be doing well. She is at school and enjoying school. She also appears to have a good relationship with Mr K, who speaks fondly of her.
There are Family reports which have been prepared which have provided great assistance. On looking at the question of parental responsibility, in particular under section 61DA of the Family Law Act, there is a presumption of equal shared parental responsibility. However, as Mr Massey submits, this has been rebutted in this case by the consent of the parties on 19th June last year to an order that the Mother have sole parental responsibility and by the failure of the Father to spend any time with [X] or communicate with her since 10th June last year.
In my view, sharing of parental responsibility is only going to be viable where both parents are playing an active and positive role in the Child’s life. It is not necessary in such cases for the Child to spend equal time with each parent, but where there has been virtually no contact for almost a year, not on the evidence due to any actions by the Mother, it is hard to see how the concept of equal shared parental responsibility would work. In my view, as the Mother is playing the primary role, it is appropriate for sole parental responsibility.
It is well established by section 60CA of the Family Law Act that the best interests of the child are the paramount consideration. In this case we have a failure by the Father, without explanation, to spend any significant period of time with his daughter over a period of nearly six years.
It is quite clear that there have been short periods of time together, and then there have been gaps where there has just been no contact. As
Mr Massey points out, there was a gap of over two years and then a gap of a further year, and we have a situation now where the Father has not communicated with this child since June of 2009.
Mr Massey submits on behalf of the Mother that the Court should find that part‑time parenting of this nature is not in the best interests of the Child, and the Court should decline to make any orders for the Child to spend time with or communicate with the Father other than what she may initiate in the years to come. With respect, the description of part-time parenting seems to be over generous. It is most casual parenting, at best, and for significant periods of time non-existent.
The Court must consider, under section 60CC of the Family Law Act, various considerations in order to help define what is in the child’s best interests.
The primary considerations are those in sub-section 60CC(2)A and B: the quality of the relationship between the Child and each of the parents, and whether there is a risk to the Child of any harm, either physical or psychological.
The evidence before me shows that the quality of the relationship between [X] and her mother appears to be strong and consistent, and on the evidence before me, she has a strong bond with the Mother’s partner, Mr K. It is difficult to see that there is any significantly close relationship between the Father and the Child. At this stage, when she is nearly six years of age, the Father is almost a stranger to her. The evidence does not show any risk to the Child in the care of either parent, although it has been submitted that orders need to be made to protect her from the psychological harm which could flow from inconsistency on the part of the Father in spending time with her and from the harm which could flow from her being brought into contact with the Mother’s sister, Ms B. It is submitted that any such contact between the Child and Ms B would cause the Mother extreme distress. I see no reason to disbelieve that.
I look at the additional considerations that are set out in sub-section 60CC(3). There is no independent evidence as to the wishes of this child, and in my view, she is too young for such wishes to be given any weight.
The nature of the relationship with the Mother is clearly a good one. There has been a developing but still very frail relationship with the Father.
It is submitted, and I am prepared to accept, that there is no evidence to suggest other than that she enjoys a good relationship with her half‑siblings.
In looking at the willingness of each of the Child’s parents to facilitate and encourage a close and continuing relationship between the Child and the other parent, it is clear that the Mother has initiated appropriate action to affirm with [X] that the Applicant is her father, but the Father has failed to do so, and the lengthy gaps of time between when he has communicated with her have had a negative effect in building up any relationship.
The Court must look at the likely effect of any changes in the Child’s circumstances. It was clearly an issue in this case that there had to be a gradual increase in the time that the Child spends with the Father to allow the relationship to develop and for the Child to bond with him. That approach was consistent with the recommendations of the family consultant. However, the Father has failed to maintain that gradual development of his relationship with [X].
I am asked to consider whether it is in her best interests to impose a change of her family name. She shares the family name [omitted] with her half-siblings. That is a matter that I need to consider.
I look at the practical difficulty and expense of the Child spending time with and communicating with a parent. It is submitted, and I accept, that the Father needs to recognise the need for him to take responsibility for travel and for consistency in times that he spends with her.
Further, there is no evidence that the Mother lacks any capacity to care for the Child. By comparison, the capacity of the Father is largely untested, because he has spent so little time with her.
There are no issues of concern in respect of [X]’s maturity, sex, or background. She is neither an Aboriginal child nor a Torres Strait Islander, which is a matter that the Court needs to consider.
In looking at the attitude to [X] and the responsibilities of parenthood demonstrated by each of the child’s parents, I am satisfied that the Mother has at all times demonstrated an appropriate attitude towards her and has demonstrated an appropriate attitude towards her responsibilities as a parent. The Father, in his failure to maintain significant or constant contact with his daughter, has not demonstrated a satisfactory attitude and has failed to give her the opportunity to form a bond with him and develop a relationship with him.
Whilst there has been family violence in the past, there is no current apprehended domestic violence order, and that is not a matter that the Court needs to give any further attention to.
I have read very carefully the minutes of order proposed by Mr Massey on behalf of the Mother, and I am satisfied that those orders would be least likely to lead to the institution of further proceedings in relation to the Child, [X].
It is relevant, in my view, that [X] has formed a positive relationship with Mr K, and I have heard Mr K’s evidence today, and I am satisfied that he has developed a strong and loving bond with this child and is providing for her a father role, which I think is important for her.
I look at whether a parent has fulfilled or failed to fulfil their responsibilities as a parent. I can make no criticism of the Mother in this regard, but the Father’s failure to communicate consistently and spend time consistently with [X] can, in my view, be categorised as a failure to fulfil a parental responsibility.
The Child’s parents have separated, and indeed, they never lived together. The fact that the relationship has not developed further has been due to the lack of the Father’s initiative in following the Mother up and the Mother’s concerns that because the relationship between [X] and the Father was not at a stage where [X] was comfortable in being separated from her mother and spending time with the Father in an unknown environment, that the relationship could not progress.
The Mother has concerns about [X] being brought into contact with her maternal aunt Ms B, and I propose to give favourable consideration to framing an order that will not allow that to happen.
In short, the Father’s failure to maintain contact with the Child, certainly since her birthday in June of last year, is not explained. There is a cause for concern. It is submitted, and I believe it to be submitted correctly, that the Court would come to the conclusion that the Father is not willing to try to foster a relationship between his daughter and himself. The fragmented nature of the contact between father and child is not conducive to the development of the relationship between them.
It is for those reasons that I am satisfied that the orders sought should be made, because I am satisfied that they are in the best interests of the Child, and I begin as I started by pointing out that the best interests of the Child are the paramount consideration.
I make orders in accordance with paragraphs 1 to 16 inclusive of the Mother’s minute of order. I note there is an application for costs. I am not satisfied that there is sufficient material before me that would justify me in making such an order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V.Lee
Date: 6 May 2010
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