Wyatt and Wyatt
[2012] FMCAfam 907
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WYATT & WYATT | [2012] FMCAfam 907 |
| FAMILY LAW – Children – parenting orders – where respondent did not attend Court – parental responsibility – sole parental responsibility – best interests of the children – family violence issues. |
| Family Law Act 1975 (Cth) ss.60CA, 60CC, 61DA Federal Magistrates Court Rules 200 rr.13.03C, 16.05 |
| Applicant: | MS WYATT |
| Respondent: | MR WYATT |
| File Number: | SYC 5581 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Finn |
| Solicitors for the Applicant: | Legal Aid NSW |
| Respondent: | No Appearance |
ORDERS
The Mother have sole parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2004.
Except in cases of emergency, the Mother is to notify the Father in writing, such writing to include email, not less than 14 days before making any major long-term decision about the children, and is to consider any views expressed by the Father regarding that decision.
For the purpose of the Mother notifying the Father in accordance with order (2), the Father is to provide the Mother with his current postal address and the Mother is to send notifications to either that address or the Father’s current email address or to any subsequent postal or email address provided by the Father to the Mother.
The children, [X] born [in] 2000 and [Y] born [in] 2004, are to live with the Mother.
The children, [X] and [Y], are to spend time with the Father as agreed between the parties in writing.
Any time that the children spend with the Father is to be supervised by a person agreed between the parties in writing.
The Father is to be at liberty to telephone the children at all reasonable times.
The Mother is to do all acts and things necessary to ensure that whichever schools the children may attend from time to time, those schools forward directly to the father, at his last known address, copies of each child’s school reports, merit cards and any other important written material pertaining to each child’s academic and extra-curricular activities.
The Mother is authorised to apply for and obtain Australian passports for the children [X] born [in] 2000 and [Y] born [in] 2004, notwithstanding the Father’s consent is not obtained. It is requested that the Department of Foreign Affairs and Trade issue passports for the said children.
The Mother is to have sole parental responsibility for renewing the passports of [X], born [in] 2000 and [Y] born [in] 2004 without the consent of the Father being required for such renewal.
Each party is to advise the other party of the current postal address, email address and contact telephone numbers, and advise the other party of any changes to these details within 48 hours of such change occurring.
The Respondent is granted leave to apply under the provisions of rule 16.05 to vary or set aside any of the above orders within 28 days of having received a copy of these orders by ordinary prepaid post.
The application is removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Wyatt & Wyatt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5581 of 2008
| MS WYATT |
Applicant
And
| MR WYATT |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the Mother of two boys, [X], who is 12 years of age, and [Y], who is seven. The Mother is seeking orders that she should have sole parental responsibility for the boys. They should live with her. They should spend time with their father as agreed in writing. The Father’s time with the children should be supervised. The children and the Father can be at liberty to speak to each other by the telephone when necessary, and she seeks the ability to obtain and renew passports for the boys.
These proceedings have been conducted by way of an undefended hearing as the Respondent Father has not at any time filed any documents by way of response or affidavit, nor has he sought to participate at all in the proceedings.
The proceedings commenced by way of an application for a recovery order, and on 23rd April 2012, I heard that application which involved some evidence from the Applicant Mother. At that stage, the Mother was not fortunate enough to have any legal representation, although she now is in a position that she is represented by Legal Aid, New South Wales. I issued a recovery order. The children were returned to their Mother’s care.
On 18th June 2012, I listed this matter for hearing. The Respondent was advised that if he did not file and serve a response and an affidavit stating the facts upon which he sought to rely by 17th July 2012, and if he did not attend Court on the hearing date which is today, then orders may be made in his absence. The Father has chosen not to file any material. He has not attended Court. His name was called three times outside the Court room, and there was no answer to the call.
He has not been represented by a lawyer. No one has sought to appear on his behalf, nor is there any indication that he has been hindered, delayed or prevented from attending Court by illness, injury or other emergency. He has not attended Court. In my view, it is appropriate where a respondent does not appear without an adequate explanation for the matter to be dealt with as appropriate under rule 13.03C of the Federal Magistrates Court Rules. Those rules allow the Court to proceed with the hearing generally.
I have heard evidence from the Applicant Mother in which she confirms the truth of the matters set out in her affidavits of 20th April and 1st June 2012. In my view, it is appropriate to make final orders. These are parenting proceedings. It is well established by the law that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. That is what is prescribed by section 60CA of the Family Law Act.
Section 60CC which has recently been amended sets out how a Court determines what is in a child’s best interests. The Court considers the primary considerations in subsection (2) of section 60CC, but also considers the additional considerations in subsection (3). The Family Law Act has recently been amended to give greater weight to concerns about family violence. That is why the Court must give greater weight to the primary consideration in paragraph (b) of subsection 60CC(2) which is the need to protect the child, or the children in this case, from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.
Regrettably, the facts in this matter show a history of violence over a considerable period of time. The Mother has detailed several frightening episodes of violence visited upon her by the Father in 2002, and February 2004, at which stage the parties already had one child, [X], who is 12 years of age, and was born on [date omitted]. The parties separated in 2004 before the birth of their younger child, [Y]. He is seven years of age and was born on [date omitted] in that year.
However, notwithstanding the fact that the parties were separated, the Mother has given evidence of incidents of violence by the Father towards her in February 2005, 14th February 2007, ironically St Valentine’s Day, March 2007. All of these incidents involved violence in the presence of, or directed to the Mother. The incident of 14th February 2007, on the Mother’s evidence, took place whilst the younger child, [Y], was actually in her arms, and the incident in March 2007 also took place in the presence of [Y].
The Court is therefore concerned about the need to protect children from physical or psychological harm, from being not only subjected to abuse or family violence, but being exposed to it. There is clear, uncontradicted evidence. The events of violence have led to the Father coming under notice of the police on several occasions, leading to apprehended violence orders, and, in fact, convictions in the local Court. The Court must, as a primary consideration, consider the benefit to the children of having a meaningful relationship with both of their parents.
There is clear evidence the children have a strong relationship with their mother, and notwithstanding the Father’s violent, abusive and at times bizarre behaviour towards their mother, they still maintain a relationship with him. This relationship includes having spent time with their father by arrangement with the mother, although regrettably the Father chose not to return the children to the Mother which led to the issue of a recovery order. However, the children speak regularly to their father on the phone. Either he initiates the call, or the children initiate the call.
The Mother has given evidence that, from time to time, she will suggest to the children that they should speak to their father, and there is no difficulty in that. The proceedings are such that there is no direct evidence of the children’s wishes. It has not been necessary to appoint an Independent Children's Lawyer, and in the circumstances a Family Report has not been obtained. I am satisfied, however, that the children have a positive relationship with their mother and an ongoing relationship with their father. I am satisfied that the Mother shows a willingness and ability to facilitate a continuing relationship between the children and their father, although I have no evidence that the Father has similar views.
There is no suggestion that there would be any change in the children’s circumstances in that it is envisaged that they will continue to live with their mother as they have done since their parents separated. What practical difficulty there is in the children spending time with their father arises partly from the fact that the Mother lives in the Sydney area, but the Father now lives in [omitted]. However, the greater difficulty that arises stems from the Father’s hostile attitude to the mother who shows a corresponding and quite understandable reluctance to spend any more than the minimum amount of time discussing issues with him.
In the circumstances, noting the history of this relationship including the recent history leading to a recovery order that is hardly surprising. I am satisfied that the Mother has a capacity to provide for the children’s needs including their emotional and intellectual needs. The Father has not led any evidence of that, but that is his decision. Of the children themselves, [X] was born [in] 2000. He is 12 years of age. [Y] was born [in] 2004. He is seven years of age. He will be eight in August. The evidence is that the children have grown normally and, indeed, appear to be flourishing in their mother’s care.
The evidence also is that the Mother’s attitude to the children and to her responsibilities as a parent is one of a loving mother who is aware of their physical and emotional and educational needs and is conscious of the fact that the children need to maintain some relationship with their father, notwithstanding his hostile attitude to her.
The evidence of the Father’s attitude to the responsibilities of parenthood is less promising, noting the fact that it was necessary for the Court to issue a recovery order to secure the return of the children from their time with their father when he refused to return them to the Mother. Family violence, as I said earlier, has been a large issue in this case and it is well established that exposure to violence can have a detrimental effect on children; it can cause them fear, it can cause them psychological damage, and it can affect their perceptions of the way adult men and women react to each other.
Quite clearly, children must be protected from family violence. In my view, whilst they remain living in the care of their mother, they will be kept safe from the risk of being subjected to or exposed to violence. The Court must take into account the fact that there have been family violence orders in 2007, when an apprehended violence order was taken out against the Father protecting the Mother. The Father was also charged with assault occasioning actual bodily harm. That same year, 2007, the Father was charged with common assault and knowingly contravening an apprehended violence order.
In June of that year, the father was convicted of assault occasioning actual bodily harm, common assault and breach of the apprehended violence order. The Father was charged with assault again as a result of an episode on 29th November 2009 and convicted. The fact is that there is a history of orders of acts of violence and convictions for violence which indicates to the Court a need to protect the children and also to protect the mother insofar as there has been evidence of violent attacks on her.
The Court will not condone violence directed by men against women, it will not condone violence that takes place in the presence of the children and it certainly will not condone violence towards children although there is no direct evidence of that in this case. Nevertheless, I am satisfied that I should make the orders that the Mother seeks. Clearly the Court must consider the question of parental responsibility and whilst, under subsection 61DA(1) of the Act:
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.
However, subsection (2) makes it quite clear that:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
And that is certainly the case here. In my view, the evidence of family violence is a disqualifying factor which makes it quite clear that the presumption of equal shared parental responsibility should not apply.
The limited communication between the parents is also a factor that the Court would consider in deciding that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. It would not work. In my view, it is the Mother who should have sole parental responsibility to the children and the Court will make that order today. Clearly the Mother will still have a responsibility to notify the Father about long-term decisions about the children and she may consider his views.
But in my view, the decision making power that comes with parental responsibility should rest with the Mother. In my view, the children should continue to live with their mother. The time with their father should be as agreed in writing. The circumstances, however, make it clear that it is in the best interests of the children that this time be supervised by a person agreed between the Mother and Father in writing. The Mother needs to have some satisfaction that the children’s interests will be safeguarded when they are with the Father.
The Mother has given evidence of telephone communication between the Father and the children and of her willingness to continue to facilitate it. Clearly the Father does need to know about the attendance of the children at schools and how they are progressing. And he should be able to obtain copies of school reports, merit cards, maybe school photographs. The Mother also seeks to obtain passports for the children.
Whilst there are no plans in the next couple of years for her to take the children out of the Commonwealth of Australia for the purpose of any holiday, she has given evidence that in the foreseeable future, a holiday out of Australia, perhaps to New Zealand, perhaps to Vietnam or perhaps to somewhere else, would be contemplated. In my view, it is the Mother who should have the authority to apply for passports and renew passports. The parents will need also to keep each other informed of their addresses – postal addresses, email addresses, telephone numbers etc – and advise of any change.
I am conscious of the fact that the Father has chosen not to attend and not to participate in these proceedings. I will make final orders today but I will make an order permitting the Father to apply under the provisions of rule 16.05 to vary or set aside these orders within a period of time from having received a copy of these orders and the reasons for the decision. I propose to allow a period of 28 days. But as I said, the orders will be made as final orders because it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 August 2012
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