Anthony and Kellett
[2016] FCCA 3368
•23 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANTHONY & KELLETT | [2016] FCCA 3368 |
| Catchwords: FAMILY LAW – Interim parenting – child living with father since 2011 – allegations of domestic violence against father during relationship – allegations that mother abuses drugs and alcohol – assessment of risk of harm to child – attitudes to parenthood – child to live with mother – child to spend time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61CG, 61DA, 61DB, 65DAA |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 SS v AH [2010] FamCAFC 13 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS ANTHONY |
| Respondent: | MR KELLETT |
| File Number: | PAC 1008 of 2012 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 9 December 2016 |
| Date of Last Submission: | 9 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 23 December 2016 |
REPRESENTATION
| Appearing for the Applicant: | Ms Morey |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| Appearing for the Respondent: | Ms Farah |
| Solicitors for the Respondent: | Farah Lawyers |
ORDERS
That the parents shall have equal shared parental responsibility for the child X born (omitted) 2009.
That the child shall live with the mother.
That the child spend time with the Respondent father as follows:
(a)During school terms:
(i)In week 1: From after school Friday until before school Monday;
(ii)In week 2: from after school Tuesday until before school Thursday; and
(iii)Any such further times as the parties may agree from time to time.
(b)During school holidays:
(i)Half of all school holidays at the end of Terms 1, 2 and 3 with the middle Saturday at 12 noon being the half way point for changeover; and
(ii)During the long school holiday period at the end of Term 4, the child shall spend time with each parent for one week on and then one week off, with such time in 2016 commencing on 2 January 2016.
(c)For the purpose of changeover:
(i)On days the child is at school each parent shall pick up and drop off the child to and from school at the commencement and conclusion of their time with the child; and
(ii)On days the child is not at school (such as school holidays and public holidays) the mother shall collect the child from (omitted) Shopping Centre at the commencement of the child’s time with the mother and the father shall collect the child from (omitted) in (omitted) Shopping Centre at the commencement of the child’s time with the father.
(d)Each parent is permitted to telephone the child on each day she is not living with that parent between 6.30pm and 7pm. The parent with whom the child is living with at that time will ensure their mobile phone is switched on and available to receive a call from the other parent for the purpose of communicating with the child.
(e)That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and each party do all things necessary to ensure that no third party makes critical or derogatory comments about the other party in the presence or hearing of the child.
(f)That each parent advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
The matter is listed for directions at 11.30am on 6 April 2017.
IT IS NOTED that publication of this judgment under the pseudonym Anthony & Kellett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1008 of 2012
| MS ANTHONY |
Applicant
And
| MR KELLETT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings relating to the child X born on (omitted) 2009.
The parties to the proceedings are the Applicant mother, Ms Anthony and the Respondent father, Mr Kellett.
The mother filed an Initiating Application on 16 August 2016 seeking that the child’s name be placed on the Airport Watch List due to what she believed was an imminent risk that the father would take the child to (country omitted) without the consent of the mother where there was a risk that the child would be subject of an arranged marriage. The Application was made returnable on 20 September 2016.
On the first return date of the proceedings the parties were able to come to some agreement on a “without admissions” basis for the child to spend time with and communicate with the mother for a period during the October school holidays. The Court also made an order placing the child on the Airport Watch List pending further order.
At the interim hearing on 9 December 2016 the Applicant relied upon the following documents:
a)Amended Initiating Application filed 26 October 2016;
b)Affidavit of Ms Anthony affirmed and filed 8 December 2016;
c)Notice of Risk filed 16 August 2016; and
d)Affidavit of Ms E affirmed and filed on 8 December 2016.
The Respondent failed to comply with the filing directions made by the Court on 20 September 2016 which required him to file and serve a Response, Affidavit and Notice of Risk by 22 November 2016 however, the Court granted leave to the Respondent to rely on the following material at the interim hearing:
a)Response filed 2 December 2016; and
b)Affidavit of Mr Kellett filed 2 December 2016.
Competing Proposals
The Applicant sought interim orders as follows:
a)That the parents shall have equal shared parental responsibility for the child X born (omitted) 2009.
b)That the Applicant mother have sole parental responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is in her care.
c)That the child shall live with the mother.
d)That the child spend time with the Respondent father as follows:
i)During school terms:
(i)In week 1: From after school Friday until before school Monday (3 nights);
(ii)In week 2: from after school Tuesday until before school Thursday (2 nights); and
(iii)Any such further times as the parties may agree from time to time.
ii)During school holidays:
(i)Half of all school holidays at the end of Terms 1, 2 and 3 with the middle Saturday at 12 noon being the half way point for changeover; and
(ii)During the long school holiday period at the end of Term 4, the child shall spend time with each parent for one week on and then one week off.
e)The child shall spend Mother’s Day each year with the mother and shall spend Father’s Day each year with the father. If Mother’s Day falls on a weekend the child is spending time with the father, then the child shall return to spend time with the mother from 6pm the night before Mother’s Day until before school Monday morning. If Father’s Day falls on the weekend the child is spending time with the mother, then the child shall return to spend time with the father from 6pm the night before Fathers’ Day until before school on the Monday morning.
f)For the purpose of changeover:
i)On days the child is at school each parent shall pick up and drop off the child to and from school at the commencement and conclusion of their time with the child; and
ii)On days the child is not at school (such as school holidays and public holidays) the mother shall collect the child from (omitted) Shopping Centre at the commencement of the child’s time with the mother and the father shall collect the child from (omitted) in (omitted) Shopping Centre at the commencement of the child’s time with the father.
g)The father shall not approach the mother or communicate with the mother at changeover except in case of emergency regarding the child.
h)Each parent is permitted to telephone the child on each day she is not living with that parent between 6.30pm and 7pm. The parent with whom the child is living with at that time will ensure their mobile phone is switched on and available to receive a call from the other parent for the purpose of communicating with the child.
i)That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical or derogatory comments about the other party in the presence or hearing of the child.
j)Within 7 days of the date of these Orders, both parents shall do all acts and things necessary to re-enrol the child at (omitted) Public School ready for her to re-commence her education in Term 1, 2017.
k)The father is restrained from removing the child from (omitted) Public School without the mother’s written consent.
l)That each parent advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
m)That pursuant to section 67ZD of the Family Law Act, the Respondent father surrender forthwith to the Registrar of this Court any passport that the Respondent father holds for the child of the marriage or any other passport which would enable the child of the marriage to be removed from the Commonwealth of Australia.
n)That:
i)Until further order the Applicant and Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child, X born (omitted) 2009, female from the Commonwealth of Australia.
ii)The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
iii)Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the Family Law Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
iv)The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
v)The Australian Federal Police and the Police Forces of the states and territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
At the interim hearing, the mother did not press an order to change the child’s school, but rather submitted to the Court that the child should remain enrolled in the school she was attending in Term 4 in 2016.
The Respondent sought the following orders on an interim basis:
a)That the father have sole parental responsibility for the care, welfare and development of the child of the relationship namely, X.
b)Each parent will be responsible for day to day decisions concerning the care of the child when the child is living with them or spending time with them.
c)That the child live with the father.
d)That the child spend time with and communicate with the mother as follows:
i)During school term: Every Sunday commencing 9am until before school Tuesday.
ii)By telephone every day from 6.30pm to 7pm.
iii)During the school holidays every Sunday from 9am until Tuesday 5pm.
iv)On each of the child’s and mothers birthday for a minimum of two hours if the birthday falls on a school day and minimum of four hours if the birthday falls on a non-school day.
e)That the mother’s time with the child be suspended:
i)If Father’s Day falls on a weekend when the child is to be spending time with the mother, from 5pm on the Saturday before Father’s Day until 5pm on Father’s Day;
ii)On each of the child’s and the father’s birthday, if the child is to be spending time with the mother on these occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
f)In the event either party is unable to care for the child during their respective periods pursuant to these orders, then the other parent is to be given first potion to care for the child.
g)That the mother shall collect the child at 9am Sunday from (omitted) at (omitted) Shopping Centre and the father shall collect the child on Tuesday at 5pm at (omitted) Shopping Centre.
h)That each parent encourage and facilitate telephone communication between the child and the other parent whilst the child is in their care daily between 6.30pm and 7pm.
i)That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
j)That in the event of childhood illness or emergency the parent with whom the child is with, contact the other parent forthwith to inform them.
k)That each of the parties, their servants and agents be hereby restrained by injunction from:
i)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
ii)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, and from permitting any other person to do so.
l)That both parents be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
m)That each party is at liberty to attend at the said children’s school for the purposes of any function or activity normally attended by parents.
n)That communication between the parties occur only in case of emergency and/or delay.
In essence, at interim hearing, the father sought that the current orders entered into by consent on 20 September 2016 remain in force.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. 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.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[9] [2016] FamCAFC 156 at [9]
Uncontested relevant facts
The mother was born in Australia on (omitted) and is currently 27 years old.
The Respondent was born on (omitted) 1987 and is currently 29 years old.
The parties met in early 2007 and were married on (omitted) 2007.
The child X was born on (omitted) 2009.
The parties separated on 24 March 2011 and were divorced on 12 April 2012.
Since 2011 until September 2016 the child has lived with the father and spent a few nights per week with the mother.
In 2011 the mother consented to the father taking the child to (country omitted) to meet her paternal family.
The child has travelled to (country omitted) on two other occasions since 2011.
The father remarried in 2013 in (country omitted) and has two other children to this marriage.
Issues in Dispute
The main issue in dispute at this interim stage is who the child will primarily live with and how much time the child shall spend with the other parent.
The parents are also at odds with the issue of parental responsibility, the mother seeks shared parental responsibility whereas the father seeks sole parental responsibility for the child.
Other Relevant Evidence
Evidence in the mother’s case
The mother agrees that she consented to the father taking the child to (country omitted) in 2011 to meet her paternal family. However she says that she did not consent to the father taking the child for two months, she consented on the basis that the father had told her words to the effect “I will just take her for a week or something. Just to introduce her to my family.” The mother says that during this time she sometimes spoke to the child on the telephone but it was difficult to do so and she was worried about the child as she had not been away from her for such a long period of time.
The mother says that the father unilaterally took the child to (country omitted) for his wedding to his current wife. The mother strongly denies consenting to the father taking the child overseas at this time.
The mother gives further evidence of another occasion when the father had arranged for the child to travel to (country omitted) with her step mother, her half sibling and the paternal uncle.
The mother has concerns that the father has arranged a forced marriage for the child in (country omitted).
The mother deposes that in about mid-August 2016 she had a conversation with the child to the following effect:
I play with my cousins, there are two (omitted), one is mean to me and always hits me, and one is nice and buys me lollies. Do you know, Dad said I have to marry him?”
The mother goes on to describe a conversation she then had with the father about the disclosure made by the child to her as follows:
Me: X told me about Mr I, what’s going on?
Mr Kellett: Yeah didn’t you know? She will get married, X is mine and only mine, you and her step mum have no say in her life. X’s life and future is in (country omitted). She already has a husband arranged.
Me: You can’t do this.
Mr Kellett: You guys are nothing, you are just women, you have no right. X will get married to my nephew in (country omitted), his name is Mr I, she will become what I want her to become and nobody in the world can change that.
The mother gives evidence of the father’s violence towards her during their relationship.
She says that he would “force me to have sex” and during the first two months of her pregnancy with the child he would “often hit me. He would often grab my neck and pull me to the wall”.
The mother says that the father made her wear (omitted) and that he got rid of her wardrobe and filled it with clothes “that elderly women would wear… he controlled everything I did”.
The mother gives evidence that during the marriage she was responsible for all of the home duties. She would drive the husband to work at 9am, come home and clean the house, prepare meals for the father and herself and then pick the father up from work at 9.30pm.
The mother says that when the father would come home from work it was her duty to serve him his dinner, prepare his clothes on the bed and ensure that a fruit platter was ready for him when he finished having a shower.
Evidence in the father’s case
The father gives a very different account of the relationship in his Affidavit filed 2 December 2016.
The father asserts that the mother did not clean the house and he would arrive home from work and the house would “be a mess”. He says that the mother was at liberty to do what she liked during the day as he was at work for ten hours per day. He says that the mother “hardly made dinner and at times should will be out until 11pm”.
The father asserts that the mother began drinking alcohol and developed a “drinking problem” and that she had this problem before the parties were married, however he says he believed the mother when she said it would cease. He believes that the mother continued to drink during her pregnancy with the child.
The father says that shortly after the birth of the child the mother would make comments to him that she was “not normal” and that she “sees things and hears voices”.
The father asserts he received telephone calls from the mother’s family saying that the child was not safe with the mother and that the mother was using drugs. The mother’s sister, in her affidavit, denies a conversation said by the father to have occurred between him and her, and further states that to the best of her knowledge, the mother has never taken any drugs nor has she had any alcohol. The mother’s sister confirms that although the mother does not wear (omitted), she is very religious and that drinking and taking drugs are against her faith.
The father also says that when the child began attending day care he would often receive calls from the day care advising him that the mother had not picked the child up on time. No evidence from the day care centre was relied upon in the father’s case.
The father says that he received a call from the New South Wales Police in around May 2011 asking him to attend the maternal grandparents home in (omitted) and that the police had asked him whether he wanted to take the child otherwise they would take the child and “hand her over to DOCS”. The father agreed to take the child. He says he later learned that this was due to the mother being under the influence of drugs and alcohol at the time. No evidence from the Police or the Department was relied upon in the father’s case.
The father denies that he ever took the child overseas without the consent of the mother.
He strongly denies that he has arranged for the child to be married in (country omitted) as is suggested by the mother in her Affidavit material. He says that under age marriage is not only illegal in (country omitted) but that he “would never subject her to such things”.
The father denies ever assaulting the mother and he asserts that it was in fact the mother who assaulted him saying that she would “slap me across the face and would always swear at me when we got into an argument, I never retaliated.” He strongly denies the allegations made by the mother that he was violent or controlling.
Section 60CC Factors
The child is seven and a half years old. According to the mother’s evidence, she has expressed her fears that the father is arranging a marriage to her cousin in (country omitted) and that the father or the court will take the mother away from her.
The father does not deny, nor could he deny as he wasn’t there, that the child has said such things to the mother. What the father does deny is that he has any intention of forcing the child into an arranged marriage, particularly while she is so young.
The mother’s case is that she has been the child’s primary carer since the child was three years old. It was at that time that the father made the unilateral decision to keep the child.
The father’s case is that he has had the child in his care since that time because the mother was not capable of looking after her due to her drug and alcohol abuse. As noted earlier in these reasons, the father has not produced any independent corroborative evidence from either the Department of Family and Community Services or from the New South Wales Police about the allegations that they had some involvement in the child’s removal from mother’s care. If what the father says is correct, it is highly likely that evidence would exist in either the records of the Department or the records of the Police. The Court therefore draws a Jones v Dunkel[10] inference in respect of this evidence.
[10] (1959) 101 CLR 298
The father does not explain in his evidence why it is that, notwithstanding his concerns about the mother’s capacity to care for the child due to her alcohol and drug use, he continued to facilitate time between the child and the mother including overnight time every week.
The mother on the other hand, asserts that the father was controlling and violent. She explains that the child has been living with the parents in an essentially shared care arrangement for approximately five years, that is since separation until September 2016, when the father made a unilateral decision to cease time between mother and child. The mother’s evidence is that for all these years post separation, she has had the child three to four nights every week. The mother submits that she has been “so effectively controlled and intimidated into doing what the father wanted she has been unable to challenge the parenting arrangements the father instituted unilaterally.”
According to the mother, the child has a strong relationship with the mother and the extended maternal family. The child also has a strong relationship with the father. The mother is concerned however, that there is a real risk of the child being forced into marriage and that there will likely be a slow but deliberate move to undermine the child’s relationship with the mother.
Since separation, both parties have spent significant and substantial time with the child. On the mother’s case, it is the father who has made the majority of the long-term decisions in relation to the child, such as overseas travel and changes to the child’s enrolment at school, including most recently when the father moved to (omitted) and changed the child’s school without notification or consultation with the mother.
According to both parents, from separation until September 2016 and then again after the orders were made most recently by consent, the child has been spending regular time with each of her parents, although there is disagreement as to who had the majority of her care. In any event, it is clear that her care was shared between the parents, and that she has been a significant part of both households. On the father’s side household, the child has two half-siblings, although only one of those is now living with the father (the child’s little half-sister, while the half-brother is living with his mother).
No doubt there will be some impact once these orders are implemented, but the orders still provide for the child to spend significant and substantial time in her father’s household. There will be a short period of transition over this Christmas school holiday period.
The orders proposed by the father would see no change in the child’s current routine.
The parents both live in suburban Sydney. It appears from both of their cases, that there is no practical difficulty with the child spending time with either of her parents.
The mother has been living in her rental accommodation for several years and until recently the father was living close by. The child was attending (omitted) Public School.
The mother is not proposing to change the child’s school in the upcoming new school year, notwithstanding the recent unilateral change in her enrolment at school by the father. The mother submits that she will still be able to drive the child to and from school each day. The mother acknowledges that the child is enjoying her new school, that she has made friends and is progressing well academically.
The mother, to her credit, recognises that changing the child’s school again would cause further disruption and confusion for the child.
The Court finds that based on recent events, the Court has concerns about the father’s bona fides in respect of him encouraging and promoting a relationship between the child and the mother. The father has recently separated and upon separation from his current wife, he has retained one of the children of that relationship in his care but not the other. The father is completely silent about these matters in his evidence, that is he does nothing to explain the situation. Prima facie there is a parallel between the child living with the father from 2011 after his trip to (country omitted) to the current arrangement where the daughter of the father’s current marriage is living with the father.
Both parents are (religion omitted) and the child has been able to enjoy participation in the (religion omitted) religion with both of her parents and will continue to be able to do so.
The mother makes a number of allegations of family violence including physical, verbal, sexual and psychological abuse against the father, some of which have been dealt with elsewhere in these Reasons. The mother submits, that due to the complex nature of domestic violence, she did not report the violence to the Police.
The mother states that the child has reported to her that she has witnessed domestic violence in the father’s household between the father and his now estranged wife. The child reported that she witnessed the father choking his wife and banging her head into a wall.
Even without the ability of this Court to make appropriate findings of fact due to much of the evidence being in dispute, the Court must act cautiously and protectively in respect of the child, where such serious allegations are concerned.
These are only interim orders and it is likely that if the matter proceeds to final hearing there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of her parents and the mother’s assertion that there is a need to protect the child from harm.
Primary Considerations
Both parents have something to offer the child. On their own evidence, they appear to be loving parents who seek to be involved in the child’s future. Consequently, the Court finds that there is a benefit to the child having a meaningful relationship with both of her parents.
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations.
It was submitted on behalf of the mother that there is a positive obligation on the Court to elevate the child’s safety over promoting any kind of meaningful relationship between the child and parent. It was said that the interim orders the mother seeks promote the safest course of action for the child and the mother.
Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the child is to live, and what time, if any, they are to spend with the other parent.[11]
[11] M & M (1988) 166 CLR 69 at 77
The Court is not satisfied that either party has established an unacceptable risk of harm to the child it the other parent’s household. Indeed, the Court doesn’t understand that this was a finding which either of the parties pressed.
Certainly, the father’s case was that nothing should change, that the child has been doing well and that things should continue as they have to date.
The mother’s case was essentially that even though there are risks of harm to the child in the father’s household, such as being forced into an arranged marriage while still very young and being exposed to family violence, those risks are controlled or minimised by the time the child will be spending with the father and by the child’s name remaining on the Airport Watch List.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[12] Section 61DA provides for a presumption of equal shared parental responsibility that applies when Court makes a parenting order.
[12] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[13]
[13] s61DA(3)
At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. As such, an order for equal shared parental responsibility is made.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[14]
[14] s61DB
Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, equal time is not supported by the facts in this matter, but significant and substantial time within the meaning of s65DAA(3) is.
It is important to reflect on the principles[15] underlying the objects of Part VII of the Act. They are, except when it is or would be contrary to a child’s best interest, as follows:
[15] S60B
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While in recent months there has been disruption to the child’s time with the mother, culminating in the present proceedings, the Court is of the view that with the benefit of Court orders setting out with some precision the time the child is to spend with each of her parents, the objects of the Act will be met by the orders which the Court is now making.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best interests for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 December 2016
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Family Law
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