Father lacks ability to be “the parent”

Sirola & Sirola [2016] FamCA 147 (14 March 2016)

Father lacks ability to be “the parent”. For full case:

  1. Ms Sirola (“the mother”) seeks orders to the effect that current parenting orders which provide for the relevant children to spend time with their father be suspended pending further order. Mr Sirola (“the father”) opposes such application.
  2. The relevant children are B born in 2001 and C born in 2003.
  3. On 3 March 2015 the Federal Circuit Court made orders by consent for interim parenting arrangements in relation to the children. Those orders provide that the children are to live with their mother and that they spend time with their father each alternate week from Thursday after school until before school the following Monday and for defined school holiday periods. The orders also provide for telephone communication.
  4. On 1 October 2015 I made orders to ensure restoration of the two children to their mother’s care. This was in circumstances where the father had withheld the children alleging that B had been refusing to return to his mother. The father said that B had a very strong wish to live with his father and not to be spending time with his mother. On that occasion I ordered that the father cause the children’s paternal step-father Mr D to deliver the children at 5.30 pm that day outside Suburb E Police Station and I ordered that the father not be present at the time.
  5. To ensure the recovery of the children I issued a recovery order to the police and the Marshal of this Court to find and recover the children and deliver the children into the care of their mother. I also ordered that in the event that one or both of the children were to come into the father’s care other than in accordance with the current orders or as agreed between the parties in writing, the father was to return them by delivering them to the nearest police station and notifying the mother thereof.
  6. There were difficulties in the recovery of the boys on 1 October 2015. I did not regard it as a good sign that the father, upon hearing what I proposed to put in place by way of orders, removed himself from the courtroom before the proceedings were completed. In any event, the children were not delivered to the Suburb E Police Station at 5.30 pm in accordance with the orders. Apparently it became necessary for the recovery order to be executed.
  7. The police delivered the children into the care of their mother at her home at approximately 2.40 am on 2 October 2015. The mother said that upon his delivery B was smiling. She hugged both boys, they went inside the home and sat on the lounge watching television because they said that they did not want to go to bed.
  8. On 25 November 2015 the mother drove both boys to school and at approximately 4.00 pm she sent a text message to both boys informing them that she was on her way to collect them. B sent her a text message saying that he was going to his father’s home. When the mother attended at the school she collected the younger child but B was not with him. She then noticed the father sitting in the passenger front seat of a motor vehicle with the child sitting behind him. She followed them and reported the incident to the police. Subsequently the police stopped both cars. The police officers spoke to both parents and also to B. The police informed the mother that B did not want to come with her. The mother informed the police about the court orders and she arranged for her lawyer to send a copy of the orders to the police. The police refused to return the child to her.
  9. The following day, 26 November 2015, B was delivered to his school at approximately 8.37 am but picked up by his father at 8.51 am. The mother subsequently caused her lawyer to communicate with the headmaster at the children’s school. The school assured the mother that they would not permit C to go into his father’s care contrary to the terms of the orders. B did not attend school that day. The police contacted the mother that day and she attended at the police station. The father subsequently brought B to the police station but the child refused to return to his mother. The mother said that the father was shouting at her and at the police officers on that occasion.
  10. The father’s case is that B has a very strong wish to live with him and that he has been expressing this wish for quite some time. The father said that he is simply unable to bring about the return of the child to his mother’s care when the child wishes to be in his father’s care.
  11. This is a complex case and there is a substantial report by the single expert Dr F. I have had the benefit of quickly reading the very detailed 63 page report by Dr F. Amongst other matters Dr F raises a serious concern about the state of psychological health of each of the parents. There are many other issues in the case including alleged drug and alcohol use, alleged violence and serious parenting deficiencies.
  12. Dr F said that in his opinion, on balance, the current parenting arrangements for the boys should remain. Time will tell whether that would be in the best interests of the boys.
  13. In my view, in all the circumstances I need turn no further than to the primary considerations. These are set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), which are:
    • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
    • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  14. Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
  15. The present arrangements under the orders provide opportunity for the children to have a meaningful relationship with each of their parents.
  16. The need to protect the children from physical or psychological harm or exposure to abuse must be a priority.
  17. The recent incident just exposed them to a great deal of psychological harm. If the children are permitted to think that they should have control in this quite dysfunctional family, certainly in the face of court orders designed to put order and structure and regularity into their lives, this is likely to place them at considerable risk, both psychological and physical. We now have the situation where B is threatening to take things into his own hands. This is the antithesis of what appropriate parental responsibility should have delivered for these boys.
  18. In my view, there is no merit whatsoever in what the father proposes. In my respectful view it offers a knee-jerk reaction to what has occurred.
  19. The children’s views will be listened to and properly taken into account with all the other relevant considerations if appropriate, by this Court at the substantive hearing. For the Court to act to change the existing orders in an urgent interim hearing, in which there is a small fraction of the relevant evidence required to consider whether it is in the boys’ interests to depart from the current arrangements before the Court would be highly inappropriate in my view.
  20. The Independent Children’s Lawyer (“ICL”) made a strong submission to the effect that the father has really abandoned parental responsibility and handed over to B the responsibility to determine which of his parents he would prefer to reside with. And the father has not been able to exert parental authority to the point where he has been able to ensure compliance with the Court’s orders. In these circumstances it was submitted that there appears to be no option than to suspend the operation of the current orders for the children to spend time with their father. It was also submitted by the ICL that it would not be in the interests of the younger child C to spend time with his father in circumstances where the Court would have suspended such opportunity for B.
  21. Upon my suggestion that perhaps an appropriate course would be to endeavour to arrange for some supervised time between the children and their father, the parents were unable to agree with any framework for such. Nevertheless in the best interests of the boys I made an order to enable such opportunity by agreement of the parents.
  22. On each of the occasions this matter has come before this Court I have endeavoured to explain to the father as forcefully as possible what the Court expects of parents in terms of exercising their parental responsibility. On each occasion I endeavoured to make it very clear to the father that in due course the Court would provide appropriate opportunity for all the relevant matters, including the wishes of the children, to be properly ventilated to enable careful consideration of all such matters by the presiding judge. I indicated that the Court would be unable to do that for some time and that it would be in B’s interests for the father to explain that to the boy. I also warned the father on 1 October 2015 that in the event that he was not able to bring his parental authority to cause B to cooperate with the parenting arrangements in accordance with the current orders then the Court might have to put in place orders to reinforce the importance of compliance with the Court orders.
  23. Unfortunately, in my view, things have arrived at the point where, in the interests of B being able to have some relationship with his mother it has become necessary to suspend the orders. It is not in his interests for there to be ongoing police involvement with his family, which unfortunately has occurred and in circumstances in which, in my view, sensible action on the part of the father should have been able to spare the boys such police involvement.


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