BENTLEIGH & MURDOCH
[2016] FamCA 540
•6 July 2016
FAMILY COURT OF AUSTRALIA
| BENTLEIGH & MURDOCH | [2016] FamCA 540 |
| FAMILY LAW – CHILDREN – Final parenting – With whom the children live – With whom the children spend time – Parental responsibility – Best interests of the children – Where the mother is not participating in the proceedings or spending time with the children – Father primary carer – Circumstances in which the mother relinquished the care of the children to the father – Issues of family violence, drug use and mental health – Need to protect the children from harm – Parental capacity – Attitude to the responsibilities of parenthood – Children to live with the father – Spend time with the mother at times and conditions as agreed – Father to hold sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Bentleigh & Murdoch (No.2) FamCA 1236 |
| APPLICANT: | Mr Bentleigh |
| RESPONDENT: | Ms Murdoch |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Dodson |
| FILE NUMBER: | PAC | 815 | of | 2015 |
| DATE DELIVERED: | 6 July 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 13 April 2016 |
REPRESENTATION
| APPLICANT – LITIGANT IN PERSON: | Mr Bentleigh |
| RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
All previous parenting orders are discharged.
The father shall have sole parental responsibility for the children C born … 2008 and B born … 2009 (“the children”).
The children shall live with the father
The children shall spend time with the mother at times and under such condition as may be agreed by the parents.
Neither parent shall physically discipline the children or allow any other person to do so.
Neither parent shall consume illicit substances whilst the children are in their care.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bentleigh & Murdoch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 815 of 2015
| Mr Bentleigh |
Applicant
And
| Ms Murdoch |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for the children B, who is almost seven (“the younger child”), and C, who is almost eight (“the older child”). The parents, Mr Bentleigh (“the father”) and Ms Murdoch (“the mother”) have been unable to agree as to their future parenting arrangements, and the mother has disengaged from the parenting proceedings.
The father, who is 32, and the mother, who is 29, commenced cohabitation in around late 2007 and separated in January 2015 when the mother left the family home with the children.
On 14 May 2015, the father commenced parenting proceedings in this Court, seeking orders that he have sole parental responsibility for the children, the children live with him and spend supervised time with the mother. The mother has not participated in the proceedings since July 2015.
On 13 April 2016, the matter was listed for undefended hearing, with no appearance by or on behalf of the mother.
The father seeks that he have sole parental responsibility for the children and that the children live with him. He also agrees with the orders proposed by the Independent Children’s Lawyer (ICL). The ICL seeks that the father have sole parental responsibility for the children, that the children live with him and spend time with the mother at times and under conditions as agreed between the parents. The ICL also seeks restraints on the parents from physically disciplining the children or consuming illicit substances whilst the children are in their respective care.
The mother’s non-attendance
The proceedings commenced in May 2015. The mother initially appeared in Court on 19 May 2015 and was directed to file documents. The mother did not appear at court events on 11 and 15 June 2015, and did not file any documents as directed.
On 20 July 2015, both parents and the children attended the assessment with the family consultant for the purpose of preparing a Child Responsive Program Memorandum.
On 28 July 2015, the mother appeared for the first day of the Less Adversarial Trial. This is the last court event the mother attended.
On 6 October 2015, the mother failed to appear and interim parenting orders were made on an undefended basis.
On 16 February 2016, when the matter was before me for directions, the mother did not appear and the proceedings were listed for undefended hearing on 13 April 2016. It was directed that that the ICL explain to the mother the effect of the orders made and the consequences if the mother did not file any documents.
The ICL advised the mother by letter dated 16 March 2016 of the orders made and the consequences of her non-attendance and failure to file documents (Exh 1). The letter was sent to the mother’s last known address, as recorded on the Notice of Ceasing to Act filed 2 October 2015.
On 13 April 2016, the mother did not attend and had not filed any documents. The ICL and father sought that the Court proceed to deal with the matter to finality in the absence of the mother.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
I am satisfied that the mother is aware of the proceedings and has been given sufficient notice that the matter would proceed on an undefended basis.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the mother.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Background
The father and mother commenced living together in late 2007. Shortly after commencing cohabitation the mother fell pregnant and the parents moved to live with the maternal grandparents. The mother has three boys from a previous relationship who also formed part of their household.
While living with the maternal grandparents the father observed them consuming illicit substances such as marijuana, “ecstasy” and “speed”. The grandparents were verbally and physically abusive towards one another, to which the mother’s children were exposed.
The parents’ first child, C, was born in 2008.
The father says that after a particular incident of violence between the grandparents, the parents and all of the mother’s children moved out to a friend’s home.
In around 2008, after the birth of C, the parents moved to a rental property.
In 2009, the parents’ second child, B, was born.
The father worked outside of the home, and assisted with the day to day care of the children including feeding, bathing, and putting the children to bed. The father says that he realised the mother’s two eldest children were not attending school on a regular basis and subsequently ensured that he took them to school each morning.
The parents separated on 6 January 2015. After an argument between the parents the father left the home to go to work. The father returned home during his break and observed that the children’s possessions had been taken, the mother and children were not home and he could not reach the mother by telephone. The father returned to work and after finishing work at midnight attended a Police Station to request the police to undertake a welfare check. He says that a police officer spoke to the maternal grandfather who said that the children were at the grandparents’ home and “will be back tomorrow”.
On 9 January 2015, a provisional Apprehended Domestic Violence Order (ADVO) was made against the father for the protection of the mother. It is understood the application for the ADVO was withdrawn and dismissed in January 2016. The circumstances of the ADVO are discussed later in these Reasons.
On 14 January 2015, the mother and father reached an interim agreement that the children were to live with the mother, that the father have regular telephone communication with the children and that the father spend time with the children on Saturdays, facilitated by third parties.
In around January 2015, the mother unilaterally changed the children’s school.
The father became aware in May 2015 that the mother was considering relocating with the children to Queensland. On 8 May 2015, the father commenced parenting proceedings seeking orders that he have sole parental responsibility, the children live with him and spend supervised time with the mother.
On 11 June 2015, at a directions hearing before a Registrar of this Court, it was noted that the mother did not appear and had unilaterally stopped the time between the father and the children.
On 20 July 2015, the parents and children attended assessment with the family consultant for the purposes of preparing a Child Responsive Program Memorandum.
It is detailed in the Memorandum that the children lived with the mother, their half-siblings and maternal grandparents during the week and spent time with the father at the paternal grandparents’ home from Friday after school until Monday before school each week. Concerning allegations were made by both the mother and the father, which are considered in further detail below.
On 28 July 2015, due to concerns arising from the Memorandum, the Department of Family and Community Services was invited to intervene in the proceedings. This is the last court event the mother attended. On 14 August 2015 I delivered Reasons for Judgment detailing the reasons for the request to intervene.[3]
[3] Bentleigh & Murdoch [2015] FamCA 671.
In around early October 2015, the mother effectively relinquished the children into the father’s care. The father says that mother explained that she was in fear for her safety in the maternal grandparents’ home, and effectively asked him to take the children into his care. As detailed in my Reasons for Judgment[4] the issues about the domestic circumstances in the maternal grandparents’ home was borne out by the records of the police and reports to Community Services to the effect that the maternal grandparents were long-term drug users and violent towards each other, to which the children have been exposed. There were also concerns about the mother’s drug use and neglect of children in the maternal household.
[4] Bentleigh & Murdoch (No.2) FamCA 1236.
On that date I made interim orders that the father have sole parental responsibility for the children and that the children live with the father. Orders were also made providing that the father do all things to re-enrol the children at their previous school, that each parent ensure that the children attended school, restraining the parents from using or being under the influence of alcohol or illicit substances while the children are in their care and other orders. It was again requested that Community Services intervene in the proceedings.
The children have not had any contact with the mother since October 2015.
On 14 January 2016, Community Services sent a letter to the Court detailing their assessment of the family and declining to intervene. It is detailed that in December 2015 Community Services completed a Safety and Risk Assessment of the father’s household and “did not identify any parenting capacity issues, educational issues, current drug use, current domestic or family violence or mental health issues”. Community Services was unable to interview the mother. The outcome of the Safety Assessment was that the children are safe in the care of the father.
The father currently works full time as a tradesman. The children attend after school day care and when the father works overtime he is assisted by his mother.
Family violence
Allegations of family violence were made against both the mother and the father.
In the last two years of the parents’ relationship, in around 2013, the father says the mother became verbally and physically abusive towards him in the presence of the children. Although the father does not provide details of specific dates or incidents, he states that mother was perpetrated physical abuse by hitting him, punching him and throwing household items. The father also describes witnessing the mother verbally abusing and grabbing her two eldest children’s throats and statements by B and C that the mother “hits us” and “hits me and shakes me”.
In interviews with the family consultant in July 2015, the older child said that her parents used to fight “every day”, swore at each other and shouted and that her father once broke a chair, but she had never seen her parents hit one another. The child also said that her mother smacks her when she is naughty and that her father tells her he will smack her but indicated that this was a threat only and her father makes her go to bed early.
The younger child told the family consultant that his mother and father had “lots of fights” and that they “punched each other”. He also said that he has never seen his father hit his mother, then said he did see his father punch his mother (and pointed to his torso) and that he thinks his father “won the fight”.
The mother described to the family consultant that during the relationship father had been psychologically and physically abusive and had destroyed her property.
The family consultant observed that the interactions between the parents suggested a significant power imbalance in the relationship, although the cause of the imbalance of power could not be determined at the early stage of assessment.
On 9 January 2015, a provisional Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother against the father. The application for the ADVO extracts paragraphs from the mother’s statement in which she states that the father had subjected her to psychological and physical abuse, sexually assaulted her eight days previously and threatened to kill her if she took the children. The ADVO restrained the father from entering the premises in which the mother resided, approaching the mother except through his legal representative or as authorised under parenting orders, and from approaching the mother or her premises within 12 hours of consuming alcohol or illicit drugs.
On 14 January 2015, the father attended the Local Court in relation to the ADVO. The father consented to an interim ADVO without admissions. On that date the mother and father reached an interim agreement that the children live with the mother and that the father spend time with the children on Saturdays, facilitated by third parties.
The father annexes an email to his affidavit from a Constable of the NSW Police to his lawyer detailing that the mother did not wish to have the criminal matter investigated further, and that she was currently happy with the ADVO and mediation. The email further notes that “I have suspended the case until she feels willing to have the matter investigated further”.
The ADVO was listed for final hearing in September 2015. The father says that the police indicated they wished to negotiate the ADVO. The father says that the ADVO was withdrawn and dismissed on 7 January 2016 and refers to an attachment to his affidavit, although there is no annexure.
Allegations were also made in relation to the maternal grandparents. The father alleges that there is ongoing and serious violence between the maternal grandparents, to which the children were exposed when living with the mother in the maternal grandparents’ homes. As noted earlier in these Reasons, there is support for these allegations in police and Community Services’ records. In interview with the family consultant, the mother acknowledged that she had called the father one night and suggested that the children remain with him because she had been arguing with her mother. She did not agree or disagree with the father’s allegations in relation to the maternal grandparents’ home being unsuitable but did say that she did not have many other options at that stage.
In interviews with the family consultant the older child stated that her maternal grandparents sometimes fight and swear at one another but she had never seen then hit one another.
I am satisfied that the parents perpetrated verbal and physical abuse against one another and that the maternal grandparents perpetrated family violence against one another, to which the children have been exposed.
Given the police withdrawal of the application for an ADVO, the police records that the mother did not wish to have the criminal matter investigated, the absence of further details and the mother’s actions in relinquishing the children to the father’s care, I am not satisfied that the father perpetrated sexual assault against the mother.
I note that it has not been alleged that the parents have perpetrated family violence against one another since separation, or that the father has perpetrated family violence against any other partners.
Drug use
In interview with the family consultant the mother alleged that the father was a heavy marijuana user. The father said that he had started smoking marijuana in high school and smoked on and off every second day, but had not smoked for about 18 months before the interview and had not used any other drugs.
The father submitted to urinalysis testing on the request of the ICL in September 2015, November 2015, December 2015, February 2016 and March 2016. All tests returned negative for alcohol and drugs, including cannabis. Accordingly, I am not satisfied that the father has misused drugs in the previous 18 months.
The mother said that she had used ecstasy in the past but had not taken any drugs since the children were born. She said that she had never used “ice” and only occasionally drank alcohol.
The ICL details in her Case Outline that requests were made by letter for the mother to submit to urinalysis testing in August 2015 and September 2015, which were not complied with.
Mental health
Allegations were made by the mother to the family consultant that the father had threatened to kill himself a number of times and that the father would take the hose from the vacuum cleaner when he left the house, with the intention of making her think that he was going to kill himself.
The father denied any mental health difficulties and there is no other evidence to support the mother’s assertions.
The father described the mother as crying “all the time”, which was borne out during the interviews with the family consultant. The mother states that she had had mild depression and was prescribed Endep at one time, but did not take it. The family consultant was of the opinion that the mother may be experiencing anxiety or depression, but that it was also possible that her presentation reflected a history of serious violence perpetrated against her. Nothing is known about the mother’s current mental health.
The Law and Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
[6] (2007) Fam LR 518.
[7] [2006] FamCA 994.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Under the orders proposed by the father and supported by the ICL, the children will continue to enjoy a meaningful relationship with their primary carer, the father.
While the father initially proposed orders that the children spend no time with the mother, he subsequently agreed to the ICL’s proposed order that the children spend time with the mother at times and under conditions as agreed between the parents. The father appears to concede that there is some benefit to the children in having a relationship with their mother so long as they are protected from harm. It is envisioned that the father will agree to the children spending time with the mother in circumstances where the children would be safe. In other words, the orders proposed by the ICL and agreed to by the father will support a relationship between the children and the mother on conditions which will ensure they are protected from harm.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
A concerning issue in this family is the history of family violence between the parents, to which the children have been exposed. As discussed above, the older child told the family consultant that her parents used to fight “every day”, swore at each other and shouted and that her father once broke a chair. The younger child told the family consultant that his mother and father had “lots of fights” and that they “punched each other”.
These concerns are ameliorated by the absence of evidence that there has been any ongoing family violence between the parents since separation, even when the children were in a shared care arrangement and spending each weekend with the father.
There are also allegations made by the mother to the family consultant about the father’s drug use and mental health. Community Services completed a Safety and Risk Assessment on the household in December 2015, which included gathering information from the children’s school, conducting a home visit and interviewing the father and the children. Community Services did not identify any parenting capacity issues, educational issues, current drug use, current domestic or family violence or mental health issues. The outcome of the Safety Assessment was that the children are safe in the care of the father, and the outcome of the Risk Assessment was low risk to the children.
As discussed, the father has regularly submitted to urinalysis testing with only negative results and there is no evidence of mental health issues. The children have been regularly attending school since coming into the care of the father in October 2015 and there were no issues identified by the school or ICL that would suggest that the children were not progressing well. I am not satisfied that the children have been abused or neglected in the care of the father or that there is an unacceptable risk of harm to them on this basis.
Little is known about the mother’s current circumstances. The circumstances in which she came to relinquish the children into the father’s care, her failure to submit to urinalysis testing and her disengagement from the proceedings and from the children raise significant concerns about her possible drug use and mental health and consequently the safety of the children in her care. Further, there is significant risk the children may be exposed to family violence if they were to spend time with the mother in the maternal grandparents’ household.
It is accepted that if orders were made as proposed by the ICL and supported by the father, the father would support the children spending time with the mother if he was satisfied that the risk issues in relation to the mother had been addressed. In other words, he will be able to impose whatever conditions he regards as appropriate to protect the children from a risk of harm when spending time with their mother.
The ICL also proposed orders restraining the parents from consuming illicit substances while the children are in their care or from physically disciplining the children. The ICL submitted that these orders would only come into play if the mother was allowed to spend time with the children. I am satisfied that they are appropriate further safeguards for the children’s safety.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The children are aged only almost seven and eight and little weight is attached to their views. To the extent any weight is attached, the older child did not express any preference for either parent to the family consultant and said that she loves both parents and thinks they both love her. The younger child said that he likes spending time with both parents, but particularly likes spending time with his father because his father “buys us lots of toys”. Neither child indicated a fear for or preference for either parent.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
Until October 2015, it appears that the mother was the primary carer for the children while the father spent significant and substantial time with them. While the children were not observed with the parents in the course of the family consultant’s assessment, the older child said that she loves both parents and thinks they both love her and the younger child said that he likes spending time with both parents.
Since October 2015 the children have been in the primary care of the father and have had no contact with the mother. It may be inferred that the children have a significant relationship with their father. Given the children’s young ages it may also be inferred that their relationship with their mother has been damaged by her absence from their lives.
It is also noted that in interviews with the family consultant the younger child said that he missed his three half-brothers when he spends time with his father. It is hoped that if the children spend time with their mother they may also spend time with their half-siblings.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
The father has consistently taken the opportunity to spend time with the children and since October 2015 has taken on the sole care of the children and made all long-term decisions for them.
Concerningly, since placing the children in the father’s care in October 2015, the mother has not sought to spend time with or communicated with the children.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
It appears that the father has maintained the children since they came into his care in October 2015. It is unknown whether the mother is currently financially supporting the children or whether the father previously maintained the children when they were in the mother’s primary care.
Likely effect of change in the children’s circumstances
Under the orders proposed by the father and ICL the children’s circumstances will remain largely the same. The proposed orders do provide that the children spend time with the mother at times and under conditions as agreed, which may result in a change in the children’s circumstances. I have confidence that the father would not agree to such time and conditions until he was satisfied that the mother was in an appropriate position to care for the children.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
I am unable to assess the practical difficulty or expense involved in the mother spending time with the children in the absence of evidence about the mother’s current circumstances.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
There are significant concerns about the mother’s parenting capacity and neglect of the children. While in the primary care of the mother, between February 2015 and September 2015, the younger child had 54 Partial absences and 28 whole absences from school, most of which are “unjustified”. The father gave evidence that the mother’s older children were regularly not attending school. In interview with the family consultant, the children raised concerns about neglect in the mother’s household. The older child said that her paternal grandmother and father make her brush her teeth but that there was no toothbrush or toothpaste at her mother’s home. The younger child said that his mother did not make his brush his teeth, that his father makes him bathe every day and that his mother makes him bathe “sometimes” and that his bedtime is 8pm at his father’s home and “anytime” at his mother’s home.
Further, having regard to the circumstances in which the children came into the mother’s care, her failure to undertake urinalysis testing, and her disengagement from the proceedings and from the children, there are significant concerns about her mental health and possible drug use. Her abrupt absence from the children’s lives when she was previously their primary carer also indicates a limited capacity to prioritise the children’s emotional needs.
Since coming into the father’s care in October 2015, the school records from the children’s current school indicate that the children were late on only one occasion in February 2016. The children appear to be progressing well in the father’s care.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The father, who is 32, works full-time as a tradesman and is assisted in the care of the children by his mother.
Little is known about the mother’s current lifestyle. The father alleges that the mother uses “ice” and marijuana. Given the mother’s failure to undertake urinalysis, her concession to the family consultant that she has previously used ecstasy and her absence from the children’s lives, an inference may be drawn that she is using illicit drugs, or at the very least, that her current lifestyle is not one which is conducive to the mother fulfilling her responsibilities of parenthood.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The father has demonstrated a positive attitude to the children and the responsibilities of parenthood. He appears to have prioritised the children and they are progressing well in his care.
The mother has effectively abandoned her responsibilities to the children since October 2015.
Family violence
This issue is considered at length earlier in these Reasons. It is noted that there was previously an interim ADVO in place for the protection of the mother which was withdrawn by police and dismissed in January 2016.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In circumstances where the mother has been disengaged from the proceedings since mid-2015 it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the children’s parenting arrangements. The proposed order that the children spend time with the mother as agreed between the parents allows for some flexibility if the mother seeks to re-engage with the children, without instituting further proceedings.
Parental responsibility
The father seeks an order that he hold sole parental responsibility for the children, which is supported by the ICL.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would have all the duties, powers, responsibilities and authority which by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[8] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[8] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In circumstances where I am satisfied that both parents have perpetrated family violence, the presumption of equal shared parental responsibility does not apply. In any event, I am satisfied that if the presumption did apply, that it would not be in the children’s best interests for the parents to equally share parental responsibility for them.
Given the mother’s apparent abandonment of the children and disengagement from these proceedings, and the father’s demonstrated responsiveness to the children’s needs, I am satisfied that it is in the best interests of the children for the father to continue to hold sole parental responsibility.
Given that I have decided that the father is to have sole parental responsibility for the children, I need not turn to s 65DAA of the Act.
Conclusion
As discussed earlier in these Reasons, this family has a concerning history, such that Community Services was invited to intervene in the proceedings twice. Unfortunately, since October 2015 the mother has disengaged from the children and these proceedings. It is encouraging that the father has diligently responded to and prioritised the children’s needs since that time. The children appear to be well cared for in the father’s household and progressing well.
In considering each of the matters relating to the children’s best interests as required by the Act I have attached particular weight to the primary consideration of the need to protect the children from harm which favours the orders proposed by the father and the ICL. Other weighty factors include parental capacity and the attitude to the child and responsibilities of parenthood.
The orders that I make are as set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 July 2016.
Legal Associate:
Date: 6 July 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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