Wilkins and Osborne

[2016] FamCA 203

FAMILY COURT OF AUSTRALIA

WILKINS & OSBORNE [2016] FamCA 203

FAMILY LAW – CHILDREN – Undefended proceedings – Same sex couple – Where the applicant has absented herself from the child’s life and relocated overseas – Where consideration of the child’s best interests – Where orders made as sought by the respondent.

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

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Wilkins

RESPONDENT: Ms Osborne

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 658 of 2012

DATE DELIVERED: 4 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Shedden & Associates

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

Orders

1. That the respondent Ms Osborne have sole parental responsibility for the child B born … 2003.

2. That the child live with the respondent.

3. That otherwise all applications before the Court be dismissed.

4. That proceedings be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkins & Osborne 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 658  of 2012

Ms Wilkins

Applicant

And

Ms Osborne

Respondent

REASONS FOR JUDGMENT

1. The child the subject of these parenting proceedings is B born in 2003.

2. Previously final consent orders were made in relation to the child on 23 April 2013. Since that time there have been significant changes in circumstances giving rise to the present applications before the Court.

3. The applicant and the respondent had previously resided in a same-sex relationship. The respondent is the birth mother of the subject child. The applicant is shown on the child’s birth certificate in Western Australia as a “parent”.

4. Previous final orders in summary provided as follows:

   a)That the applicant and respondent have equal shared parental responsibility for the child;

   b)That otherwise substantially the child live in a shared care arrangement between the applicant and respondent; and

   c)Various other specific issues orders relating to the child’s passport, overseas travel, school attendances, mutual exchange of information, and non-denigration were made.

5. On 16 March 2015 the applicant Ms Wilkins filed an application initiating proceedings in the Local Court at C Town seeking a recovery order in relation to the child. Subsequently the respondent Ms Osborne filed a response seeking that the then current parenting orders be discharged, that proceedings be transferred to the Federal Circuit Court of Australia in Parramatta and that an independent children’s lawyer be appointed to represent the interests of the child.

6. On 17 March 2015 proceedings were ordered to be transferred to the Federal Circuit Court of Australia Parramatta, an Independent Children’s Lawyer was appointed to represent the child and the court refused to make the recovery order sought by the applicant “in the best interests of the child”. The court on the same day noted that the parties had agreed to attend upon a psychologist for confidential counselling.

7. On 7 May 2015 orders were made in the Federal Circuit Court of Australia Parramatta that in summary provided:

   a)That the parties attend Unifam counselling;

   b)That the parties and the child attend upon a family consultant for the purposes of a child inclusive conference on 15 September 2015;

   c)That proceedings be adjourned for interim hearing to 13 October 2015; and

   d)That by consent operation of orders made on 23 April 2013 be suspended, that the parties have joint and several parental responsibility for the child, that the child live with the respondent and that the child spend time with the applicant for several day time only periods and thereafter each alternate weekend.

8. For reasons not known the matter did not proceed to interim hearing on 13 October 2015 but on that day proceedings were transferred to this Court.

9. Proceedings were listed before a Registrar of this Court on 8 December 2015 with the Registrar being informed that the applicant had withdrawn instructions to her solicitor and may be proposing to relocate to reside in Country D. Proceedings were adjourned for possible undefended hearing to 22 February 2016 before a judge and the respondent was directed to notify the applicant of the court’s orders.

10. On 22 February 2016 there was no appearance by or on behalf of the applicant, the respondent appeared in person and the Independent Children’s Lawyer appeared. It was ordered that:

    a)Proceedings be listed for undefended hearing on 16 March 2016;

    b)That the respondent file and serve one consolidated affidavit in support of the orders sought by her and that that affidavit be served via a nominated email address;

    c)That the Independent Children’s Lawyer inform the applicant by email at a nominated email address of the orders made and that in default of her appearance the matter would proceed to undefended hearing on a final basis; and

    d)It was noted that at undefended hearing the respondent would seek orders that provide for her to have sole parental responsibility and for the child to live with her.

11. On 16 March 2016 there was no appearance by or on behalf of the applicant and the matter proceeded to undefended hearing. Pending delivery of final orders and reasons for judgment interim orders were made that the respondent have sole parental responsibility for the child and the child live with the respondent so as to formalise the existing arrangement pending final determination.

Procedural fairness

1. The course of the proceedings is set out above. Exhibit C provides confirmation that the applicant was informed of the directions made on 22 February 2016 and of the interim hearing listed for 16 March 2016 in compliance with orders made.

2. It is appropriate that the matter proceed to undefended hearing as the Court is satisfied that the applicant is aware of the proceedings and of the listing for undefended hearing.

The respondent’s case

1. The respondent relied upon her amended response filed on 21 April 2015 but only sought orders that provided for her to have sole parental responsibility for the child and for the child to live with her. Otherwise the respondent relied upon her affidavit filed on 29 February 2016.

Context

1. The respondent is 52 years of age and was born in Country D. She is the biological mother of the child who at the time of hearing was 12 years of age.

2. The applicant is 55 years of age and was also born in Country D.

3. The parties had been in a relationship since late 1989 living initially in Country D, then for a short period in Country E and arriving in Australia in early September 1999. Subsequently the respondent obtained employment in Western Australia.

4. The respondent later underwent IVF treatment in Western Australia and as a consequence the subject child was born in 2003. The parties moved to the C Town area of New South Wales in 2006 but thereafter the relationship between the respondent and the applicant soured. They separated in late 2008.

5. Consequently parenting proceedings in relation to the child commenced in 2012 and resulted in the final orders that were made in April 2013.

Present background

1. Subsequent to the interim orders made in the current proceedings the child had continued to spend time with the applicant on Wednesday afternoons after school and on some Sunday afternoons. However the child frequently returned back to the care of the respondent early on these occasions.

2. In November 2015 the applicant sold her property and travelled to Country D for a period not returning until mid-January 2016 then commencing to live in rented premises.

3. The applicant vacated those premises on 25 February 2016 and has provided no forwarding details of her whereabouts to the respondent or to the child. The applicant informed the child that she will contact her by phone and or email and that she would see her before she leaves Australia permanently in mid-March 2016.

4. The respondent indexes to her affidavit a letter to her from the applicant dated 11 November 2015. The tenor of the letter is such that it is clear that the applicant proposes to cease her relationship with the child.

5. The child reported to the respondent that on 21 February 2016 the applicant burnt her copy of the court documents in front of the child.

6. The child completed her primary school education at D Town Public School in 2015 and was awarded a scholarship to the C Town Grammar School. The child commenced attending C Town Grammar School at the beginning of the current 2016 academic year.

7. The child is otherwise engaged in extracurricular activities including dancing and piano and is actively engaged in sport.

8. To the respondent’s observation the child is happy and settled in her life and the respondent is able to offer to the child her full time care and attention. The respondent proposes to travel to Country D with the child in April 2016 to visit family and she has notified the applicant of that intention should the applicant wish to see the child whilst in Country D.

The child inclusive conference

1. The parties and the child attended a child inclusive conference with a family consultant on 15 September 2015. At that time the child was 12 years of age.

2. The family consultant expressed concerns about the presentation of the applicant and the child during interview noting:

   It was difficult to follow [Ms Wilkins’s] thought process initially as she tended to answer questions with abstract pieces of information. After clarifying a number of times what [Ms Wilkins] was proposing, she later changed her mind. Although this is not unusual, [Ms Wilkins] said that she did not think that her final proposal was likely to be implemented, but she said that she would like to pursue those orders any way. The contrast between [Ms Wilkins’s] original proposal (to follow the child’s proposal for 3 days per fortnight) and the last proposal she made (equal time) was markedly different and her reasoning somewhat unsound.

3. Otherwise the family consultant observed that there was no co-parenting relationship between the applicant and the respondent with both women describing a history of high conflict since separation and an inability to support one another’s relationship with the child.

4. On interview the child described an inability of the applicant and respondent to agree on parenting arrangements since separation at which time she was five years of age. The child presented as somewhat anxious and became upset later in the day when she was advised that the applicant and respondent had been unable to reach agreement.

5. The child referred to the respondent as her “mother” and to the applicant by an abbreviation of her Christian name. She said that she would like to live with her mother and spend time with the applicant “but not overnight” expressing a fear that the applicant “will take me away”. On one occasion the child had run away from the home of the applicant.

6. The child suggested that she would like to spend some time from Wednesday after school and each alternate Sunday afternoon with the applicant and this proposal was supported by the family consultant in the interim.

7. The family consultant expressed the view that the child demonstrated signs of a child who had been exposed to chronic parental conflict. The child reported that she worried about her mother when she is not with her and thinks about her family circumstances “every day”.

8. Concerningly the child reported that the applicant had pushed her and sworn at her but not recently. The family consultant expressed a concern that there appeared to be no end to the conflict between the applicant and the respondent and it is of great concern for the child’s mental health that she may continue to be exposed to conflict between the parties.

9. The family consultant recommended the appointment of a Chapter 15 single expert psychiatrist if the matter proceeded to hearing.

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

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 (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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.

6. The presumption 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)In interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   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)].

7. 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.

8. Section 60CC 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.

9. 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.

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

11. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

12. The additional considerations are set out in s 60CC (3) of the Act. The relevant considerations are as follows:

    (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 each of the child's parents and other persons (including any grandparent or other relative of the child);

    (c)      the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (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 either of his or her parents; or 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 each of the child's parents; and 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 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 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 the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and 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;

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

13. It is clear that in the absence of the applicant from the child’s life, as the applicant seems to have elected, it is appropriate in the best interests of the child and having regard to the best interest considerations set out above that the orders sought by the respondent should be made.

14. The child at present has a meaningful relationship with the respondent with that relationship’s continuation being significant, important and valuable to the child into the future. At present for reasons known only to her the applicant has abandoned her relationship with the child.

15. Protective concerns do arise as a consequence of the matters referred to in the child inclusive conference memorandum. These concerns are clearly indicative of the child remaining in the primary care of the respondent and if having any time with the applicant that it be limited and subject to protective conditions. However such time with the applicant does not arise in the context of the present proceedings.

16. The child has expressed her views as to her parenting arrangements to the family consultant. At the time of those views being expressed the child was 12 years of age and completing primary school education. There is no reason why those views should not be accorded significant weight in the context of these proceedings. The child’s views are supportive of the orders sought by the respondent.

1. The nature of the child’s relationships with the applicant and the respondent has been considered above as has the extent to which each of the applicant and respondent has participated in the child’s life to date. These considerations are also supportive of the orders sought by the respondent.

2. The evidence is such as to support an inference that primarily the obligation to maintain the child has fallen upon the respondent. There is no evidence of any financial support provided by the applicant.

3. The orders sought by the respondent do not propose any change in the child’s circumstances. The child’s time with the applicant if any is left at large and subject to agreement between the applicant and the respondent should the applicant seek to spend time with the child.

4. There is no practical difficulty and expense in the child spending time and living with the respondent. That has been her circumstances now for some years. The circumstances as to the child’s time with the applicant if any are completely unknown. It may be that the applicant has relocated to Country D in that event there will be difficulty and expense if the child is to do so but that question remains problematic at best.

5. The respondent has demonstrated an appropriate capacity to provide for the child’s needs including the child’s emotional and intellectual needs. Indeed the child expressed to the family consultant the security felt by her in the care of the respondent. The applicant in relation to this consideration has demonstrated little capacity to deal appropriately with the child’s needs particularly the child’s emotional needs.

6. The respondent has demonstrated a proper attitude to the child and to her responsibilities of parenthood. The applicant has not done so and it appears has chosen to abandon her relationship with the child.

7. There is no evidence of any family violence as between the applicant and respondent. The child makes complaint to the family consultant about being pushed and sworn at by the applicant. That allegation is of some concern.

8. There is no evidence of any family violence order notwithstanding what appears to have been a significantly conflictual relationship between the applicant and the respondent.

9. It is appropriate in all of the circumstances to make orders that would be least likely to lead to the institution of further proceedings in relation to the child and in that regard it is appropriate to make orders as sought by the respondent.

10. There are no other relevant facts or circumstances.

Discussion

1. A consideration of the child’s best interests as discussed above makes it clear that the orders sought by the respondent that she hold sole parental responsibility for the child and that the child live with her are appropriate and should be made.

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

3. Orders will be made accordingly.

4. It is noted that the Independent Children’s Lawyer makes no application for costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 April 2016.

Associate:

Date:  4 April 2016