Zammitt & Lennon (No. 4)

[2009] FamCA 750

FAMILY COURT OF AUSTRALIA

ZAMMITT & LENNON (NO. 4) [2009] FamCA 750

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother failed to appear or provide instructions to her counsel – child’s best interests – matter to be heard on an undefended basis

FAMILY LAW – CHILDREN – with whom a child should live and spend time – application by the father seeking that the child live with him and that he have sole parental responsibility – where final parenting orders were previously made with respect to the parties’ two other children by consent – child to continue to live with the father and spend time with the mother

FAMILY LAW – CHILDREN – parental responsibility – father to have sole parental responsibility

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Zammitt

RESPONDENT: Ms Lennon

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADF 196 of 2004

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS CROYDON

SOLICITOR FOR THE APPLICANT: CROYDONS

COUNSEL FOR THE RESPONDENT: MS WRIGHT

SOLICITOR FOR THE RESPONDENT: WOMEN’S LEGAL SERVICE SA INC

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER MRS WEST

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER LEGAL SERVICES COMMISSION OF SA

Orders

1. All previous parenting orders in relation to the child L be and the same are hereby discharged.

2. The father do have the sole parental responsibility for L.

3. L live with the father.

4. Order 5 of the Orders of this Court made 13 March 2009 be discharged.

5. Each party be restrained and an injunction is hereby granted restraining each party from abusing, denigrating or criticising the other parent in the presence of any of the three said children and from allowing any other person to do so.

6. The mother shall be at liberty to arrange with the school (as may be appropriate from time to time) for the provision of copies of school reports, assessments, newsletters and any other information generally available to parents from time to time of the children from time to time.

7. The mother is restrained and an injunction is hereby granted restraining her from approaching or being in the vicinity of or remaining on any school premises attended by any of the children from time to time.

8. The child L shall spend time with the mother on the first Saturday of each month commencing on Saturday 5 September 2009 between the hours of 10.00 am and 5.00 pm on the following terms and conditions:

   8.1All handovers shall occur at the Y Children’s Contact Service (conducted by Relationships Australia) with the mother to be responsible to initially make all arrangements with the said service;

   8.2The cost of using the said service shall be borne equally by the parties;

   8.3The mother shall confirm by text message to the father not less than two (2) days prior to the scheduled period that she will be attending.

9. 9.1      The father shall facilitate each of the said children communicating with the mother by telephone at all reasonable times;

   9.2The mother is at liberty to telephone between 6.00 pm and 6.30 pm each Sunday night (when not following a period of time with L) and the father shall ensure that the children are available to take the telephone call from the mother; and

   9.3The mother shall telephone the father’s land line number, and if that number is not answered, the father’s mobile telephone number;

   9.4The father shall advise the mother, and keep the mother advised, of his mobile telephone number at all times, such advice to be in writing. 

10. The mother shall advise and keep the father advised of her mobile telephone number at all times.

11. All communications between the parties shall be by text message.

12. The mother do contribute the sum of thirty dollars ($30.00) to the following account: S Zammitt, BSB: … , Account Number: …, on the first of the month (next payment having fallen due on 1 August 2009) by way of a contribution towards the cost of transport for the purposes of L spending time with his mother.

13. The father shall notify the mother forthwith of any medical emergency regarding the health of any of the children by text message.

14. The mother is permitted to forward cards, letters and gifts to the children at birthdays, Christmas and on other special occasions and the father shall ensure that the said correspondence and gifts are handed to the child/children.

15. Each party shall keep the other informed of his or her residential address from time to time, and in any event, within seven (7) days of any change.

16. The father shall provide not less than twenty one (21) days written notice to the mother of any proposed change to the children’s principal place of residence, or such shorter period which is reasonable in the circumstances, giving full details of the change and explanation for the change.

17. The father shall attend upon Dr D, Psychiatrist of … in the said State for the purpose of obtaining an updated report as to his psychiatric health and the father (by his solicitors) shall file and serve a copy of the report within seven (7) days of receipt of same.

18. The father shall provide Dr D with all previous psychiatric reports in his possession or control and copies of the trial affidavits of the parties filed herein on 6 and 13 July 2009 respectively.

19. Leave is granted to the Independent Children’s Lawyer to inspect and photocopy any psychiatric reports of the father included in the District Court files - actions numbers … and … on the basis that such reports shall be available for the Independent Children’s Lawyer only and shall not be photocopied or disseminated for any purpose except that the Independent Children’s Lawyer shall provide a copy of the said reports to Dr D and there shall be no further dissemination of the said reports unless otherwise ordered by the Court. 

20. The said District Court files shall be returned by the Registrar of this Court to the District Court on or after 11 September 2009.

21. Subject to the receipt of a satisfactory psychiatric report (in the opinion of the Independent Children’s Lawyer) the Independent Children’s Lawyer’s appointment (with respect to L) shall be discharged fourteen (14) days after the filing of the report.

22. All extant applications are hereby dismissed.

23. Liberty to Independent Children’s Lawyer to apply.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF196 of 2004

MR ZAMMITT

Applicant

And

MS LENNON

Respondent

EX-TEMPORE EASONS FOR JUDGMENT

1. It is now twenty-five past ten on what was to be the second day of the conclusion of the trial in this matter.  The mother has not appeared and I have given leave for the counsel representing the mother from the Women’s Legal Service to withdraw because she does not have any current instructions. 

2. The matter before the Court currently concerns the welfare of one of the children of the parties, L, who was born in October 2000 and is therefore approaching nine years of age.  The proceedings have been on foot between the mother and father for many years.  Steps have been taken by the Court to list the matter for conclusion.

3. In particular, steps have been taken since I have been specially managing the matter for many months.  I currently only have before me the last two sections of the file (which is a 2004 file) dealing with the steps that have been taken this year in 2009 attempting to get the matter ready for final hearing.  There have been various orders made with a view to preparing the matter for final hearing when the mother has either been present unrepresented or has been present and has been represented.

4. Trial directions were made by me in May 2009 with a view to having the matter listed and documents filed and served in July.  On the 6 May 2009, it was listed for trial for the five days commencing yesterday, 10 August 2009.  Some of those orders have been complied with and in particular the mother has filed specific material by way of affidavit of evidence‑in‑chief and some medical reports. 

5. When the matter came on before me yesterday morning I was told by counsel appearing for the mother that she had been informed that the mother had broken her ankle, had been admitted to emergency section of the … Hospital and had been discharged at 7.00 am yesterday.  Counsel for the mother was expecting to get further instructions on what were then described as possible final consent orders.

6. When the mother’s counsel appeared before me this morning, she indicated that she had sent the mother, by courier, a letter concerning her need to attend Court this morning and a voucher for a taxi cab.  She had endeavoured to telephone the mother on her mobile telephone number on several occasions yesterday and into this morning.  I stood the matter down again so that the mother’s counsel could attempt to contact her.  Steps were taken to contact the mother on her mobile telephone using both the Court telephone and her counsel’s mobile but the calls went to message.

7. We therefore have a situation where proceedings concerning the welfare of L have been ongoing in this Court for years.  The mother’s non-attendance today is not adequately explained and I am being pressed to hear the matter as an undefended matter by default because the mother is not in attendance today.  That is obviously one option which is open to me in accordance with the Rules and the general provisions in relation to final determination of matters.  Specifically, however, it is not only the default of the mother which is of concern but the need for the welfare of L to be considered.

8. In procedural matters such as this it may not be that L’s welfare is the paramount consideration but it is a significant consideration to be taken into account.  Bearing in mind the history of the matter and the concerns, I am asked by both the counsel for the Independent Children’s Lawyer and counsel for the father to proceed to hear the matter on an undefended basis. 

9. The material that has already been placed before me, the reports of the independent Family Consultant and the need for a conclusion to be reached in these proceedings, make it appropriate, as well as in L’s best interests, that I proceed to hear the matter to final determination today.

10. Orders that were made by me on 13 March 2009, being final orders in relation to the older children M and H.  On that occasion the final orders could not be made in relation to the child L.  The matter was thereafter adjourned and as indicated prepared for final hearing before me. 

11. Having given my reasons for hearing the matter on an undefended basis, I turn now to consider what orders should be made. 

12. The history of L’s care is a complicated one set out in the affidavits received by me for the trial.  L has, however, now been residing with his father and sisters for some months.  I have before me the reports of the schools at P dealing with the progress of L and his sisters.

13. The application I have before me today is that the father seeks final orders that L reside with him and that he have sole parental responsibility.  The orders proposed also contain certain injunctions in relation to parties not abusing, denigrating or criticising the other in the presence of any of the children or allowing any other person to do so;  arranging for the mother to be able to receive copies of appropriate school reports and assessments and other information concerning the children and restraining the mother from approaching or being in the vicinity of any school premises attended by any of the children.

14. The father is also proposing that L spend time with the mother on the first Saturday of each month from 10.00 am to 5.00 pm on certain conditions, including that the Y Children’s Contact Centre be the place of handover and that the mother confirm by text to the father, not less than two days prior to the period that she will be attending.  The orders also provide for telephone communication between the mother and children.  Those orders in relation to L and his sisters are proposed as final orders, notwithstanding that certain steps that were to take place in relation to a psychiatric assessment of the father have not been concluded.

15. However, in the final orders proposed there are paragraphs which require the father to provide to the Court an updated report as to his psychiatric health and to ensure that the psychiatrist who prepares that report has available to him the previous psychiatric reports which have been prepared in relation to the father at a time when he was facing proceedings in the District Court. 

16. It is unusual to have final orders made whilst issues concerning the psychiatric health of the father remain outstanding.  However, I accept the submissions of the Independent Children’s Lawyer that in these circumstances the order is appropriate but at the same time it is also appropriate to finalise as much as possible the orders concerning L and the other children.

17. The proceedings concerning the elder children M and H were in fact concluded on 13 March, but I appreciate that it is appropriate to reopen them to make the further orders which are proposed for M and H to communicate with the mother and for the mother to be at liberty to receive appropriate reports. 

18. I turn to consider the main requirements set out in the Family Law Act1975 (Cth) and that is to ensure that the orders made are in the best interests of L and to the extent necessary, M and H. The provisions of Part VII of the Family Law Act make it clear that the best interests of the children are the paramount consideration.

19. In this particular matter it is not a matter where the specific provisions relating to shared parental responsibility are applicable.  In this case the history of the very difficult relationship between the mother and the father and the concerns about the mother’s ability to take steps to ensure the best interests of the children, convince me that it is not appropriate to make any order by way of shared parental responsibility.  Those sections relating to considerations which flow from such an order do not apply. It is appropriate and in these circumstances in L’s best interests for the father to have sole parental responsibility for L and for L to live with his father.

20. I do that on the basis of considering specifically the subsections of section 60CC which direct me to determine what is in the child’s best interests. The primary consideration is clearly the benefit to L of having a meaningful relationship with both of his parents and the need to protect L from physical or psychological harm. I take into account, in particular, the detailed assessment of the independent Family Consultant whose most recent report is that of 5 May 2009, which deals with the conclusions reached in relation to matters concerning L’s welfare after observed interaction with L and his mother and an interview with L. The author of the report had previously carried out a detailed report following interviews with all of the parties and the children.

21. It is also significant in my view to consider Exhibit 1 which is the report from the Children’s Contact Centre detailing the difficulties expressed by L to the workers at the contact centre when steps were being taken to arrange for L to spend time with the mother. 

22. There are also concerns arising out of the mother’s failure to attend on occasions which were arranged for her to spend time with L.  Specifically in relation to the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents, the orders which are proposed certainly take into account the benefit to L of being able to have a meaningful relationship with his mother, if the mother takes appropriate steps to attend upon the centre to collect L and is able to do so (both in relation to her psychical and mental health).

23. In relation to the need to protect L from psychical or psychological harm, again, I rely upon the reports of Ms N and material which is before me which expresses concern about the need to protect L.  There are considerable difficulties in this matter as L’s attitude concerning his mother and father has changed from time to time and concerns have been expressed by the parties concerning the level of influence that has been exerted over L when he expresses his view.  However, most recently he has been expressing a strong view in relation to the difficulties he has in his relationship with his mother.

24. There are also concerns expressed by the mother about the suitability of the father and the risk to L from a psychical and psychological basis in the father’s care.  To that extent the orders provide for the father to be fully assessed by the psychiatrist who will provide a report to the Independent Children’s Lawyer, who will then be able to assess any risk to L, and if necessary, reopen the proceedings. 

25. The additional considerations are also of importance in this matter.  L has expressed strong views I take into account, although he is only eight, nearly nine, he has expressed those strong views.  I also take into account that the weight to be given to those views needs to be carefully balanced with the risk of influence by not only the father, but his sisters and other adults whilst L is in the care of the father.  However, taking into account Ms N’s expertise and skill, I conclude that L’s expressed wishes to Ms N should be given some weight.

26. I take into account the other factors set out in section 60CC subsection (3) and in particular, the capacity of each of the child’s parents and the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. In particular, the mother has not been willing or able to continue a relationship with L’s sisters. There are concerns about her physical health, as well as concerns expressed about her psychological and emotional health. I am satisfied that in this difficult case the father has a better capacity to provide for the children’s needs. The school reports indicate that he has taken steps to ensure that the school are aware of the children’s circumstances. He is involved in their schooling and generally their day to day care.

27. The question of the practical difficulty and the expense of the children spending time and communicating with their mother, is a significant matter in this case, bearing in mind the distance and cost of communication and travel.  Nonetheless, the orders proposed before me by the Independent Children’s Lawyer and the father provide for time spent with the mother and L on a monthly basis.  That appears to be in L’s best interest, bearing in mind the difficulties and distance in travel. 

28. Similarly, the orders which form part of the conditions for communication and spending time (such as the mother confirming by text that she is going to attend at the handover for L each month) are appropriate, bearing in mind the history of this matter and the need to reduce the inconvenience and disruption for L, and to a lesser extent, the father, if there should be unnecessary travel.

29. One of the other significant factors in this matter is whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.  I am satisfied that it is preferable, in these circumstances, for there to be a conclusion to Family Court proceedings and for L and indeed the other children and the father to be given an opportunity to go about their lives, without the extra stress and disruption caused by Family Law proceedings.  Indeed, it also would appear to be in the mother’s best interest that there be a conclusion to these proceedings, as the medical report provided to the Court in relation to the mother, suggests that she also has been suffering from stress related to these proceedings.

1. There have been issues raised by both parties in relation to family violence.  I do not dismiss those matters.  I am, however, satisfied that steps have been taken by the parties involved, to ensure that the children are not further exposed to violence and that the parties now realise the serious significance of family violence and the impact it will have upon the children.  I am also assured by the orders which provide for the psychiatrist providing the report on the father’s psychiatrist health, to have available to him those reports which were made available to the District Court, when District Court matters concerning the father were before that Court.

2. L has now a capacity to remain settled in his father’s care, where his father has the assistance of his sister, who has a relationship with the children.  This will also enable L to continue to foster the appropriate relationship with his sisters, and at the same time, if the mother takes appropriate steps, continue to have a relationship with the mother. 

3. Bearing all of the factors in mind, I am therefore satisfied that it is in the best interests of L that the final orders be made as proposed, with the alterations which I have made.

4. I have crossed out Monday the 10^th and put Tuesday the 11^th on the first page.  I have deleted the reference to Ms Wright, for the mother.  I propose to the orders say “Upon application of the Court, and after giving Ms Wright liberty to withdraw and hearing Ms Croydon for the father and Mrs West, counsel for the Independent Children’s Lawyer” then it remains the same until I have deleted the words “by consent,” as it appears immediately above paragraph 1, and then the orders remain the same until paragraph 19, which was altered.  I will release my signed copy of this order for counsel.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  17 August 2009