WILLIAMS and David

[2010] FamCA 159

FAMILY COURT OF AUSTRALIA

WILLIAMS & DAVID [2010] FamCA 159

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Williams

RESPONDENT: Ms David

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYF 4242 of 2005

DATE DELIVERED: 22 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 22 January 2010

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Mr Haricharan

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

THE COURT NOTED:

(A)     The father was called and there was no appearance by or on his behalf.

AND IT IS ORDERED THAT:

1. The hearing listed today proceed on an undefended basis.

2. The father’s Amended Initiating Application for parenting orders filed

   
   

   25 February 2009 is dismissed.

3. All prior parenting orders are discharged.

4. The children A born on … April 2000 and E born on … December 2001 shall live with the mother.

5. The mother is to have sole parental responsibility for the children.

6. There is to be no order that the children spend time with their father.

7. The father be and is hereby restrained from contacting the mother or the children directly or indirectly or coming within a radius of 500 metres of the mother or the children or their place of living, employment or education.

8. The mother provide to the last known address of the father anonymised as the name of school and location school reports provided to her by the school in relation to the children.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4242  of 2005

MR WILLIAMS

Applicant

And

MS DAVID

Respondent

And

LEGAL AID NEW SOUTH WALES

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings before the court are now undefended and proceeded to a hearing on the mother’s amended response filed on 9 June 2009.

2. The proceedings relate to parenting arrangements initially involving four children of the mother and the father, namely, Y, N, A and E whose ages are respectively 17, 16, 9 and 8.

3. There was an application before the Court by the father filed in 2009 in which he sought orders for contact with A and E but he did not appear before the Court to pursue that application and it was accordingly dismissed.

4. The mother has filed an application in June 2009 in which she sought orders that all prior orders in relation to the children be discharged and that she have sole parental responsibility for the children and that the children live with her and that there be no order for them to have contact with the father.

5. No order is now sought by the mother on the hearing in relation to the two elder children and she has limited her application to the two younger children.

6. The parties and children in this case have been assessed by various family consultants and reports which were prepared in 2006, 2007, 2008 and 2009.

7. In preparing the last report in 2009 the father and the mother and the two younger children were interviewed by Mr L, a Family Consultant.  Mr L gave oral evidence before me as well.  His report was received into evidence.

8. He informed the court that in his conversations with the father and after discussion with him the father had said to him that he did not intend to pursue his application for contact with A.

9. Mr L also gave evidence that he had raised with the father the problems that might arise for the mother and A were the child E to be treated differently and to have contact with that child.  Whilst not committing himself to abandoning his claim with respect to E he apparently told Mr L that he would give the matter some consideration.

10. His evidence, that is to say Mr L’s evidence, is to the effect that the children have been severely traumatised in the marriage and that this has affected their relationship with and perception of their father.  Mr L did not say quite why such trauma had occurred but his evidence was that it occurred in the relationship with the father and his report is that irrespective of the cause the trauma is certainly evident.

11. The child A said clearly and distinctly that under no circumstances would she wish to see the father even under supervised conditions and apparently became highly emotionally and distraught at the prospect of even considering it.

12. The younger child who Mr L says was more removed from the trauma which had occurred during the marriage, perhaps by reason of her age, at that time would probably agree to some supervised contact and indeed she was a child with an appropriate curiosity about her father.

13. Mr L reports that A cried throughout the process of discussing her father.  She was unable to discuss him although able to discuss non-related topics.  On the topic of her father he described her as having “frozen”.  The younger child was more outspoken describing the fact that her father dresses up like girls and has “heaps of guns”.  She reported that he “cut her (the mother) with a knife”.  She said “He tried to kidnap us”.

14. Mr L concluded that for A to recover from her trauma she needs to live in an environment where both she and her mother can feel safe from the threats that they perceive from their father’s presence.

15. Mr L gave evidence of a conversation with the father as I have said and that so far as A is concerned that no longer seems to be an issue.  He did however indicate to Mr L that he would like supervised contact with the youngest child at a contact centre.

16. Mr L has given the matter considerable and careful thought and he took the view that the children following different paths in relation to contact with their father would be undesirable in their interests in particular by reason of both the mother’s continuing fear of him and the child A’s antipathy and fear of him.  Contact between E and her father will provoke fearful and anxious reactions in the mother and A and likely increase A’s and her mother’s anxiety.  It will be tantamount to rubbing an open wound with a curry brush.

17. It is also likely he says that the sibling relationship might become conflicted in these circumstances.  Mr L also offers that such an arrangement would on the history of this matter be likely to lead to further relocation and disruption for the children.

18. Mr L did suggest that some contact in the form of reports from the school on the children’s progress be sent to the father.  It seems to me that there are problems associated with that but I will make an order that such reports be provided but give the mother leave to anonymise them as to the address and name of the school.

19. The mother’s attitude to the father is explicable on the basis of the evidence, which I accept as accurate.  She placed it before the court in a form of an affidavit and it was uncontroverted on the hearing (except perhaps to the extent of certain untested denials made by the father to the Family Consultant to which I cannot have regard).

20. I note that the reports contain statements by the father which would support some of the assertions of abuse of alcohol and drugs.  The father it should be said now asserts in those reports that he now does not take drugs nor alcohol to excess.

21. The mother is an aboriginal of the … tribe and she says the children proudly identify as aboriginal.  The father is Caucasian.

22. The mother has two children of a prior relationship who are now adult.

23. The relationship between the mother and the father commenced in 1991.  The father and the mother married in January 2000 and finally separated in 2004.  The mother says it is her intention to file for a divorce following the conclusion of these proceedings.

24. In summary the mother’s evidence of that relationship was one in which the father:

    ·Denigrated her in offensive language calling her a “black bitch” and a “slut” and otherwise used language which described her as unworthy.  This was denied by the husband to the Family Consultant.  He was not present for cross examination on his denial.  This conduct had occurred the mother deposes in the presence of the children on a weekly basis.

    ·She asserts the father physically assaulted her frequently by pushing her, spitting in her face, and throwing plates of food over the mother’s head and locking her out of the residence.  The father concedes to the Family Consultant that in the marriage there was a lot of yelling and that he did on occasions throw food.  This the mother says occurred on the majority of occasions in the presence of the children and occurred on an almost weekly basis.

    ·The mother has procured one Apprehended Violence order in 2004 against the father which expired in 2006.  Since that order the father has parked outside the children’s school to their distress.  The father has driven past the mother’s home on a number of occasions to her distress.  The children have been distressed by the appearance of the father on a number of occasions.

    ·The father consumed alcohol on an almost daily basis it is asserted.  He is described by the mother as having the habit of consuming two “longnecks” of beer each day.

    ·The father, she says, consumed approximately five to six cones of marijuana per day both before he left work and when he came home.  He, the mother deposes, said that the powder that he had in his possession was “ice”, meaning an illicit drug I understand to be a derivative of amphetamine.

    ·The father drove in disregard of the law both whilst unlicensed and in vehicles which were unregistered the mother says.  He also, she says, drove with the children without them being properly restrained.

    ·Because of his expenditure on alcohol and drugs the mother says that the father did not properly provide for the support of the children and that they suffered as a result and the mother was obliged to seek assistance from her family in order to meet everyday expenses.

    ·The father she says spent little time with the children and even when the opportunity existed to do so preferred to spend the time sleeping or watching television.

    ·The father was not involved in the day to day care of the children.

    ·The father it seems has a habit of cross dressing.  He delivered to the child Y a laptop computer which had on it pictures of the father dressed in women’s clothing and exposing himself.  He concedes to Mr L that indeed this was so but says that he did not think that the pictures were seen by the youngest child.  The mother denies this and says that when she was called by A at the time E was screaming and the mother believes that she did see the pictures.

25. The mother’s evidence is that it was she who attended to the children’s needs.  In this regard she deposes:

    ·She prepared all their meals at home, did their cleaning and laundry.  She made the necessary purchases for them and ensured that they attended medical appointments when required.

    ·She attended school on an almost daily basis and was involved in reading classes, arts and craft lessons with the children, helping at the Canteen and in general fundraising activities

    ·The mother took the children to their sporting activities on a weekly basis and assisted in their training sessions.

26. The mother proposes that she will continue:

    ·to assist the children in maintaining their aboriginal heritage and identification. She is teaching the children the Aboriginal customs, language and culture.  She arranged for them to attend a camp for four days in which they were exposed to Aboriginal dancing, bush tucker, painting and jewellery making.  Both children have participated in the dancing and are keen to apparently participate in it on regular basis.  The mother has been involved with the Aboriginal Family Support Centre and said that she has a strong network and community to provide support to her.

    ·She will continue to encourage relationships between the children and her extended family and friends

    ·She says that the children continue in the local schools in which she has now enrolled them and that they will no doubt be educated to a level commensurate with their capacity and her ability to fund that education.  Both children are reported by her as doing well and having friends.  They have it is said learnt musical instruments and A has joined a choir.

    ·The mother is presently not working but is seeking qualification as an aged care assistant and apparently has been guaranteed employment on her successfully completing her course.

27. I accept the mother’s evidence which was denied in part only by statements of the father to the Family Consultant which could not be tested by cross examination.

The Issues

1. The issues therefore are:

   a)What order should be made as to the exercise of parental responsibility;

   b)With whom should the children live;

   c)What if any contact should the children have with the non-resident parent;  and

   d)What orders should be made by way of restraint on conduct.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children's best interests, 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.

2. 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 interests being treated as paramount (see section 60CG).

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

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out those matters I state that I will in these reasons refer to them.

5. Section 61DA(1) requires that:

   “…  When making a parenting order in relation to a child, 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.”

   Subsection (4) provides as follows:

   “…  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 equal shared parental responsibility for the child.”

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

Section 60CC Considerations

Primary considerations

1. In dealing with section 60CC Considerations I am obliged to consider:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents

2. Of course in ordinary circumstances it would be of a benefit to a child to have relations with each of their parents but only to the extent that such a relationship provided a meaningful advantage to the child.  The effect of the evidence in this case is that these children would not gain any benefit from continuing a relationship with their father.  This assessment is made solely on the evidence accepted in these proceedings which have proceeded undefended but the Court is concerned particularly in circumstances where a child expresses such abhorrence of a continuation of a relationship that irrespective of its cause the child should be required to continue in it and such an expression has come from the evidence concerning A particularly.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

3. These children have been exposed to violence and abuse.  Their needs have been neglected by the father in the interests of his drug-taking and alcohol abuse.  They have been denigrated because their mother and their race have been denigrated by their father.  They are at risk of physical and psychological harm, abuse and neglect and family violence in the event that the contact between them and the father was continued.  They will be best protected from that if it ceases.

4. I am particularly concerned that even if I was to permit some contact between the father and the youngest child E that that would have a deleterious effect on the relationship between E and A and her mother and would cause the mother and A to be in a state of continuing trauma.

Additional considerations

1. I am to take into account under the Act:

   (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

2. The eldest of the two younger children, A, has strongly resisted the thought of any contact with her father and she is even unable to contemplate such a prospect without adverse reaction.  Although somewhat different the youngest child would only agree subject to supervision.  Given the harm as I have said that otherwise might befall her on the past history I do not think that any arrangement which puts one child on a path of involvement with the father where the other child will not be so involved and where she expresses such strong antipathy to the concept of any time being spent with the father renders in my view contact with either child problematic and it is my intention not to make an order to that effect.

   (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)

3. The evidence suggests that there is an impaired relationship with a significant impairment between the children and their father and a close relationship between the children and their mother and each other.  The mother deposes of a good relationship between the children and their extended family.

   (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

4. The mother is unwilling to facilitate an ongoing regular communication with the father but she does say to the Court that she is willing to provide copies of the school reports suitably anonymised so that he might understand what his children are doing, what their achievements and perhaps failures are.

   (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

5. The children have now lived in the care of their mother without contact with their father for some time.  In the circumstances of this case and in the light of the evidence it seems to me that any disadvantage of the children having a continuing relationship with a father is such that I should make those orders which enable the children to live a trauma-free life and be able to concentrate on the positive aspects of their life.

   (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

6. It is not known where the father presently resides.  It is suggested that he may be living in Dubai.  It has also been suggested that he may be living in Eastwood.  It is not possible to form any realistic assessment on the evidence of the difficulty and expense which would be attendant on an order for the children to spend time with him and in any event the Court does not propose to make any such order.

   (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

1. There is no evidence of any capacity of the father to provide for the needs of these children but there is evidence of the capacity of the mother to so positively provide for them.

   (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

2. The mother is aboriginal and the children identify as aboriginal.  The father has denigrated the mother’s race.  The children who are proud of their aboriginality would suffer hurt in the event that the father gave vent to his previously espoused views in this regard.  The lifestyle of the father as a cross dresser and his involvement in pornographic displays of his predilection including their publication to his children does not indicate a lifestyle in the husband which would be favourable to continuing contact with these children.

   (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

3. The order I propose to make will enable the children to enjoy their culture and will not permit of their culture to be denigrated to them by their father.

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

4. The father’s attitude to the responsibility of parenthood has been wanting.  He has pursued his own vices to the detriment of his children.  He has had little to do with their upbringing.  He appears to have no understanding of the effect of what he does upon them.  It seems at least he now understands and it should be said to his credit that at least he ought not pursue and does not pursue his claim for contact with A.

   (j)any family violence involving the child or a member of the child’s family

5. The father has been violent and has been the subject of an apprehended violence order which has now expired.  His subsequent behaviour in pursuing the children at school and the mother’s residence seems to indicate that there is much he has yet to learn about appropriate behaviour and his behaviour thus far has generated anxiety and concern for the mother and children.

   (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

6. It is my intention that the order I make in these proceedings should operate until the children attain their adulthood.  

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

7. The conduct of the father has caused anxiety to the mother and the children who have a residual fear of the father.  In order to try and help create a climate where that fear and that anxiety might abate and the children and their mother concentrate on the children achieving their highest potential it is my intention to make orders which will give them some security by way of restraint upon the father’s behaviour.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

1. Section 61DA recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been violence as set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

4. The section further provides that the presumption may be rebutted if it is determined not to be in the best interests of the children.

5. In this case it is not, given the relationship between the parents of these children and the conduct of the father in the best interests of the children for the presumption to apply.

Section 65DAA

1. Section 65DAA requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. The order I propose to make is for sole parental responsibility and the question does not arise.

The Orders to be made

1. I therefore make the following orders:

   1.        The application of the father for parenting orders is dismissed.

   2.        All prior parenting orders are discharged.

   3.The children A born on … April 2000 and E born on … December 2001 shall live with the mother.

   4.        The mother is to have sole parental responsibility for the children.

   5.        There is to be no order that the children spend time with their father.

   6.The father be and is hereby restrained from contacting the mother or the children directly or indirectly or coming within a radius of 500 metres of the mother or the children or their place of living, employment or education.

   7.The mother provide to the last known address of the father anonymised as the name of school and location school reports provided to her by the school in relation to the children.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  22 January 2010