CRABTREE & LEITH

[2015] FamCA 572

FAMILY COURT OF AUSTRALIA

CRABTREE & LEITH [2015] FamCA 572

FAMILY LAW – CHILDREN – Undefended – allegations of abuse – report supports orders – best interests of children

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Crabtree

RESPONDENT: Ms Leith

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

FILE NUMBER: LNC 464 of 2014

DATE DELIVERED: 20 July 2015

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Dawe J

HEARING DATE: 20 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Mr Lewis

SOLICITOR FOR THE RESPONDENT: Cann Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission of Tasmania

Orders

1. The children B born … 2004 and C born … 2006 (“the children”) live with the Respondent Mother.

2. The Respondent Mother has the sole parental responsibility for the children.

3. The children spend such supervised time with the Applicant Father as may be agreed between the parties.

4. All outstanding applications are dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crabtree & Leith 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 LAUNCESTON

FILE NUMBER: LNC 464 of 2014

Mr Crabtree

Applicant

And

Ms Leith

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter that has been listed before me today following upon the matter having had a considerable history in the Court.  What is before me today is the further amended response to the initiating application, filed on behalf of the mother on 2 June 2015. 

2. The documents produced by way of letters, as exhibit 1, indicate that the father should have been aware of the amended response seeking slightly different orders.  He has not appeared today, having been called.  I proceeded to hear the matter on an undefended basis, noting that the father had on 11 May 2015, filed a notice of discontinuance. 

3. The matters before me relate to the best interests of the children:  B, who was born in 2004, and C, who was born in 2006.  I have read the material upon which the mother and the Independent Children’s Lawyer are relying in particular the mother’s affidavit, the witness’ affidavit, and more particularly the report from the Senior Family Consultant, Mr D, which was prepared as recently as 13 April 2015, after extensive consideration of the material before the Court, and interviews with the relevant parties, including the children. 

4. As is clear from the submissions I have heard from counsel, this is a matter in which it is not appropriate to consider the parents having shared parental responsibility.  The history of the matter clearly indicates the considerable difficulty the children have experienced, and the breakdown in the relationship between the father and the children.  The reports which have been prepared and provided to the Court indicate, as pointed out by counsel, a strong possibility that the estrangement of the father and the children has been caused by the father’s abuse of the children.

5. Taking into account the allegations and the evidence before me, it is not appropriate, nor in the children’s best interests, that there be any shared parental responsibility.  The factors to be considered by the Court in establishing that a sole parental responsibility is applicable, in this case, have been established.

6. The orders the mother seeks are not only that she have sole parental responsibility, but that the children live with her and that the father have such supervised time with the children as may be agreed by the parties.

7. In relation to this further amended application the sole parental responsibility is appropriate in this case.  Taking into account all of the factors in section 60CC, but in particular the primary factor which needs to be given priority, namely, the need to ensure that the children are protected from harm, I am satisfied that the orders which the mother seeks, that the children live with her, are, indeed, in the children’s best interests.

8. The question, therefore, remains whether the order in relation to the father having supervised time as may be agreed between the parties is in the children’s best interests.  In this regard, I consider all of the factors in relation to section 60CC, and in particular, the benefits for children of having a meaningful relationship with their father.

9. Taking into account all of the other factors in section 60CC and relying primarily on the affidavit of the mother and the detailed thorough report from the Family Consultant, Mr D, (who has significant qualifications and has taken into account a large number of the factors which the Court is required to consider when preparing his report as I said, of April 2015).

10. I am, therefore, satisfied that if the mother, in due course, considers, taking into account the welfare of the children as she has in the past, that some supervised time with the father would be appropriate and is able to agree with the father such arrangements, then, such an order is appropriate and in the children’s best interests.

11. Having considered all of the factors in section 60CC, which I have not set out in detail in these reasons, it is clear, in my view, that the primary factor is the need to protect the children and the factors contained in section 60CC all support the orders sought by the mother.

12. I, therefore, make orders in terms of paragraphs 2, 2(a) and 3 of the further amended response filed by the mother.

13. The appointment of the Independent Children’s Lawyer is discharged.

14. There are no orders for costs.  All outstanding applications are dismissed from the pending list.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 July 2015.

Associate: 

Date:  22 July 2015