DALCOURT & DALCOURT

[2020] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALCOURT & DALCOURT [2020] FCCA 1463

Catchwords:
FAMILY LAW – Parenting – where neither parent complied with the filing directions for trial – where the parties solicitors asked the court to make orders by consent – where the proposed orders about the children spending time with the father were inconsistent with the allegations about the father’s alcohol consumption and perpetration of family violence and with the views expressed by the children to the family report writer – order made for the children to live with the mother and for the mother to have sole parental responsibility – notation that the court declines to make any orders about the children spending time with the father as it cannot be satisfied that the children would not be at risk of harm if they spent unsupervised time with him.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Applicant: MS DALCOURT

Respondent: MR DALCOURT

File Number: NCC 3457 of 2017

Judgment of: Judge Terry

Hearing date: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Newcastle

Delivered on: 4 May 2020

REPRESENTATION

Solicitors for the Applicant: Kingston Swift

Solicitors for the Respondent: Hartmann & Associates, Solicitors

ORDERS

1. The mother shall have sole parental responsibility for the children X born in 2003, Y born in 2006 and Z born in 2011 (“the children”).

2. The children shall live with the mother.

3. The court declines to make any orders for the children to spend time with the father because the father and mother have failed to comply with the filing directions and the court cannot be satisfied in light of the allegations made throughout the matter and in the family report that the children would not be at risk of harm if they spent unsupervised time with the father.

IT IS NOTED that publication of this judgment under the pseudonym Dalcourt & Dalcourt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3457 of 2017

MS DALCOURT

Applicant

And

MR DALCOURT

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The application for parenting orders which is before me was filed by the mother in 2017. She also sought property orders but the property matter has since resolved.

3. The parenting matter did not resolve despite the fact that a family report was prepared and it was listed for trial today.

4. Neither party has complied with the directions to file material for the trial.

5. This morning Mr Cable appeared for the father and Mr Kingston for the mother and they forwarded to me a set of orders which the parties would like me to make. I cannot and will not make those orders. Pursuant to section 60CA of the Family Law Act I can only make orders if I am satisfied that it is in the best interests of the children that I do so and apart from order 1 which provides for the mother to have sole parental responsibility I cannot be satisfied that it is in the children’s best interests that I make those orders.

6. The orders provide for the children to live with the parents as agreed between the parties and then set out what is to happen failing agreement. They provide that X is to decide which parent she lives with and Y and Z are to live with the mother. Y is to be able to choose whether to spend time with the father and Z is to spend time with him each alternate weekend.

7. The only provision about alcohol consumption in the orders is that each party is restrained from consuming more than two standard drinks on any day the children are in their care. 

8. There is no evidence that the mother has ever had an alcohol problem so I do not understand why the order has been drafted in that form.

9. The material which has been filed in the matter and the information in the family report which I am going to mark as an exhibit suggests that the father may pose a risk of harm to all of the children. 

10. The mother provided information to the family report writer, although it has not been tested because no party has taken part in a trial, that there was significant family violence between herself and the father.

11. She also asserted that the father had a longstanding and severe alcohol problem. 

12. The father entered into a post-separation relationship which also involved family violence including, based on information the girls gave to the report writer, the father’s new partner throwing a glass at him. 

13. The father’s solicitor told me this morning that this relationship had ended and that the father had entered into another relationship.  I have no evidence about that.  I have no evidence about whether his new partner has an alcohol problem.  I have no evidence about whether she has a propensity for violence.  I have no evidence about her parenting capacity.

14. I have no evidence about the father’s current state of health or about his current state of alcohol consumption and no evidence that the father is capable of restricting his alcohol consumption to two standard drinks on any occasion bearing in mind that it is probably something like one and a half cans of beer.

15. I have no evidence that the father has accepted that he is a person who has a propensity to commit acts of family violence and I cannot be satisfied that any of the children, and in particular Z who under the proposed orders is obliged to spend time with the father each alternate weekend, would be safe in the father’s unsupervised care.

16. This matter has been in the Court system since November 2017. The father has been given abundant opportunity to file documents. He has not prepared the matter for trial or filed a single scrap of material which could satisfy the Court that the children would be safe with him and I intend to dismiss his response. 

17. The mother has also not filed any material which would assist me to determine what should happen in relation to her application but the evidence clearly establishes that the children have lived with the mother since separation. 

18. The family report suggests that X has refused to have anything to do with the father for several years and that Y is quite concerned about spending time with him. 

19. I do not want the parties to be left without any orders at all and I intend to make an order that the mother has sole parental responsibility for the children, that the children live with her and that the Court declines to make any orders for the children to spend time with the father because the father and mother have failed to comply with the filing directions and the Court cannot be satisfied in light of the allegations made throughout the matter and in the family report that the children would not be at risk of harm if they spent unsupervised time with the father. 

20. I intend to dismiss all outstanding applications.  If anyone wants to apply for different orders in the future they can.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 15 June 2020