Bishop and Knight
[2017] FCCA 271
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BISHOP & KNIGHT | [2017] FCCA 271 |
| Catchwords: FAMILY LAW – Parenting – undefended hearing – mother to have sole parental responsibility for the child – child to live with mother – child to spend time with the father as agreed. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAA Mental Health Act 2007, s.22 |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 MRR v GR [2010] HCA 4 |
| Applicant: | MS BISHOP |
| Respondent: | MR KNIGHT |
| File Number: | PAC 1867 of 2012 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 21 November 2016 |
| Date of Last Submission: | 21 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Appearing for the Applicant: | Ms Simpson |
| Solicitors for the Applicant: | Sydney Family Law Specialists Pty Ltd |
ORDERS
That the mother have sole parental responsibility for the child X born (omitted) 2011.
That the child live with the mother.
That the child spend time with the father as agreed between the mother and father in writing.
That the mother and father do all acts and things necessary to authorise the child’s school to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.
That the mother and father be entitled to obtain directly from any school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the mother and father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the mother and father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.
X born (omitted) 2011 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2011. The mother shall be the only person with ‘parental responsibility’ of the child X born (omitted) 2011 for the purposes of applying for, and being issued with, an Australian passport for X born (omitted) 2011.
That if the mother intends to take the child on any overseas travel, the mother shall notify the father no less than 14 days in advance of such travel and provide to the father a copy of the travel itinerary, together with details of the where the child will be staying and such contact details as are available for the duration of the overseas travel.
That all outstanding issues are removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Bishop & Knight is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1867 of 2012
| MS BISHOP |
Applicant
And
| MR KNIGHT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the only child of the parties, X, born on (omitted) 2011, who at the time of the hearing was 5 years (omitted) old.
The final hearing proceeded on an undefended basis as against the Respondent father.
The mother relied on the Amended Initiating Application filed 20 October 2016, Notice of Risk filed 12 May 2016 and the Affidavit of the mother filed 20 October 2016. The mother also relied on an Affidavit of her solicitor filed 17 November 2016, and her Case Outline Document filed on 14 November 2016.
Brief Chronology
The father was born in (omitted) on (omitted) 1981.
The mother was born in (omitted) on (omitted) 1981.
The parties met in (omitted) in 2006 and commenced a romantic relationship.
In June 2009, the parties married and then moved to Australia. The parties lived with the paternal grandparents during the course of their marriage.
The mother asserts that the paternal family was coercive and controlling to her during the time she lived with them. Such matters are discussed further below in the Judgment.
The subject child of these proceedings, X was born in (omitted) Hospital on (omitted) 2011.
The parties separated on a final basis in March 2012, and they were divorced on 17 May 2014.
At the time of separation, the mother and child moved into a refuge in (omitted) Sydney. During the time they lived there, the father did not spend time with the child.
In May 2012, the father commenced proceedings in the Federal Circuit Court of Australia[1] and in August 2012, interim orders were made for the child to live with the mother and spend time with the father.
[1] As it then was
In September 2012, the mother and child moved into a unit, and the parents agreed for the child to spend time with the father from 10am on Saturday to 4pm Sunday each week.
In October 2012, the child commenced attending day care, and in December 2012, the parties agreed to dismiss the proceedings then before the Court.
The child continued spending time with the father in accordance with the agreement reached between the parties, with such time including the child seeing and spending time with the paternal extended family. Indeed, the mother says that the majority of the time that the child was spending with the father, it was the paternal family who looked after the child.
In January 2015, the father refused to return the child to the mother’s care and the child was retained for a period of 5 days.
The parties thereafter attended mediation, and reached agreement for the child to spend time with the father each alternate weekend and each Friday during the day in the off week. Although the parties could not agree on all parenting issues such that no consent orders were entered into, the child spent time with the father in accordance with the agreement reached in February 2015.
After the child commenced school in 2016, she started spending alternate weekends with the father only.
The mother re-married on (omitted) 2016. Since that time the mother and child have been living with the mother’s husband, Mr F.
There were two further occasions when the child was retained by the father contrary to the agreement reached between the parties. The first was in late March 2016 and the second in late April 2016. The child did not attend school during this second period of time when she was retained by her father in April/May 2016.
It was not until 25 May 2016 after orders were made that the child was returned to the mother. Interim consent orders were entered into for the child to live with the mother and spend alternate weekends with the father, and each alternate Wednesday.
On 19 September 2016, the Court made orders, inter alia, listing the matter for possible undefended hearing on 21 November 2016. The father did not appear in Court on that occasion, however, the solicitor for the mother did telephone the father and he indicated that he did not intend on filing any material and that he would not be participating in the proceedings.
The father was not in Court on 21 November 2016. The Court is however, satisfied on the material contained in the Affidavit of the mother’s solicitor that the father had been given notice the mother would be pressing for the matter to be heard on an undefended basis.
The Law
Parenting proceedings are governed by the provisions of Pt 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 (sub-s.(2)) and additional (sub-s.(3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (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 the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
The Full Court in Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.
The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.
Section 60CC Factors
Views of the child
Given the child’s age, little weight would be afforded to her views, were those views known.
Nature of the children’s relationships with their parents and significant others
The mother has been the child’s primary carer, while the father has had sporadic involvement with the child’s rearing particularly since the parents separated.
There is evidence to suggest that the child has a close and loving relationship with her extended paternal family. However, given the lack of engagement by the father in these proceedings and the fact that the mother has to date facilitated a relationship with not only the father but also the paternal family, the Court is of the view that the child’s ongoing relationships with the paternal family will be supported by the mother.
There is no evidence of the child’s relationship with significant others.
Parent’s involvement with decision making, spending time and communicating with the children and Maintenance of the children
The mother has been actively involved in relation to the child’s ongoing care and well-being, including making major long term decision affecting the child’s health and education.
The Court finds that the father has not been as involved a parent as the mother has. The father’s unilateral decision in changing the child’s school and keeping her from attending school during April/May 2016 after he retained her contrary to the parties’ agreement indicates to the court that the father is not always capable of making decisions which are in the child’s best interests.
The mother has continued to maintain the child by paying her childcare fees and private school feeds. The father has in the past assisted the mother by purchasing school supplies for the child, however it is the mother who is primarily responsible for meeting all of the child’s needs.
Likely effect of change and practical difficulty of spending time
The orders proposed by the mother would see little change in the child’s routine.
There was no practical difficulty raised by the mother in respect of the child spending time with the father.
Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
The Court finds that the mother has demonstrated a proper attitude to parenting by facilitating time between the child and the father to date, despite all of the difficulties she has encountered.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child's parents; if the children are an Aboriginal
The mother is (omitted) and the father is (omitted) by origin.
The mother is a practising (omitted), whose religious beliefs and practice of (omitted) are very important to her.
The child attends an (omitted) school in order to provide for her religious and cultural needs, in addition to her education.
Family Violence
Family violence is defined in s4AB of the Act. The definition states:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.
Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.
The mother makes allegations of family violence against the paternal family, by way of coercive and controlling behaviour during the parties’ relationship.
The mother also makes allegations of family violence against the father personally, and recounts a number of incidents including an incident after separation where the father smashed the mother’s phone and a further incident in October 2014 when the father attended the mother’s home and banged on her front door with his fist.
There are also a number of incidents of violence concerning the father recorded in the material produced under subpoena from New South Wales police which was tendered in the proceedings:
a)alleged verbal abuse of the father’s partner’s ex-boyfriend by telephone in December 2014;
b)alleged assault of the father’s partner including throwing a glass, slapping her across the face and smashing her phone in April 2015;
c)aggressive behaviour following the father being taken to hospital pursuant to section 22 of the mental health act resulting in the father being handcuffed by the police in June 2015; and
d)alleged assault of the father’s partner including pushing her across the room, dragging her around the house by the hair, threatening “I’ll kill you and I’ll kill myself”, punching her windshield when she got into the car resulting in a crack and throwing his phone at her face and all in July 2016.
At the time of all of the incidents which appear in the material produced from the New South Wales police, the mother was not aware of such matters having occurred and only became aware of them through the Subpoenaed material.
Institution of further proceedings and other relevant matters
These are final orders, and given the father’s lack of engagement to date, there is a slight possibility of further applications being made. However, on balance, the Court is of the view that making final orders now and in the absence of the father is in the child’s best interest.
Primary Considerations
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. This is so because the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence is to be given greater weight than the benefit to the child of having a meaningful relationship with both of her parents.
Risk of Harm
In addition to the matters discussed in relation to family violence, the court is also mindful of the evidence relating to the father’s mental health issues and any risk of harm to the child as a result thereof.
The material tendered in the proceedings shows that the father was scheduled twice under section 22 of the Mental Health Act2007, that occurring in 2012 and 2015, following the father’s suicidal ideation.
Once again at the time of these events, the mother had not been made aware by the father of his mental health difficulties, and consequently the mother had continued to facilitate time between the child and the father. This in itself is a risk to the child caused by the father’s lack of disclosure and the Court is concerned that similar future events might place the child at an unacceptable risk of harm if she was to be in the father’s care during such times.
Benefit of a Meaningful Relationship
Whilst the father has typically had regular time with the child as agreed between the parents after the parties’ separation, the mother’s evidence raises doubt about whether the father was indeed caring for the child or whether the child was being cared for by her paternal grandparents at these times.
There is no evidence to suggest that the child at present does not have a positive relationship with the father and that she would not in the future benefit from having a meaningful relationship with him.
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.[2] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
[2] See note 1 s61C
The parents do not have a good working relationship at present. There appears to be very little trust of the father by the mother and indeed the father’s lack of disclosure about his potential mental health issues and violent behaviour when coupled with the father’s lack of engagement in these proceedings makes that lack of trust understandable.
Overseas Travel
The mother has previously travelled with the child to (omitted).
Given the difficulties in the parties’ co-parenting relationship, the Court is persuaded that the mother who has made Australia her home, is to be permitted to travel internationally with the child without having to obtain the father’s consent, particularly as the mother is to have sole parental responsibility for the child in any event.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 2 March 2017
Key Legal Topics
Areas of Law
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Family Law
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