Dodds and Bissell

[2014] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

DODDS & BISSELL [2014] FCCA 1653

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the child – where Applicant did not attend Court.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS DODDS

Respondent: MR BISSELL

File Number: NCC 1456 of 2013

Judgment of: Judge Scarlett

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

The Applicant: No Appearance

Solicitor for the Respondent: Mr Taylor (appeared pro bono)

Solicitors for the Respondent: Hughes & Taylor

Counsel for the Independent Children's Lawyer: Ms Falloon

Solicitors for the Independent Children's Lawyer: Parks Coady Family Lawyers Pty Ltd

ORDERS

1. The Interim Orders made on 18 November 2013 and 16 December 2013 are discharged.

2. The child X born (omitted) 2011 live with the Father Mr Bissell.

3. The Father is to have sole parental responsibility for the child X whilst she resides with the father.

4. The Father is to cause a sealed copy of these orders to be forwarded to the mother at her last known address Property N by express post within seven (7) days of the date of these Orders.

5. The Father is restrained by injunction from changing his mobile telephone number from the current number.

6. All extant applications before this Court are otherwise dismissed.

7. The Independent Children’s Lawyer is discharged with effect from a date one (1) month after the date of these Orders.

8. No order for costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 1456 of 2013

MS DODDS

Applicant

And

MR BISSELL

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother for parenting orders in respect of the parties’ daughter, X, who was born on (omitted) 2011 and is currently living with her father, the Respondent. The Applicant has not attended Court again and on the last occasion, 27^th May 2014, her solicitor, Mr Wotton, was granted leave to withdraw.

2. The Application has been listed as an undefended hearing.

3. The Father seeks orders that:

   a)the child should live with him;

   b)that he should have sole parental responsibility for her; and

   c)that he should forward a sealed copy of the orders to the mother at her last known address.

4. These Orders are supported by the Independent Children’s Lawyer.

Background

1. The Father’s solicitor, Mr Taylor, has prepared a detailed chronology which has been very helpful to the Court.

2. The Father was born on (omitted) 1988. The Mother was born on (omitted) 1989.

3. The Mother served an 18 month prison sentence around 2009 for various offences.

4. The parties commenced their relationship in 2010.

5. The child of the relationship, X, was born on (omitted) 2011.

6. The parties separated on 7^th May 2012. Later that same month the Father’s parole was revoked and he spent approximately six weeks in custody.

7. After the Father was released from custody on 3^rd July 2012 he reconciled with the Mother and moved back in with her and the child on 4^th July.

8. The parties moved to (omitted) in late July, but after about a week the Father left and returned to live in his mother’s home at (omitted).

9. The Mother sought alternate accommodation and the Father commenced to care for the child on a full-time basis.

10. The Mother was arrested in October 2012 and was refused bail. She was sentenced to a period of imprisonment for 6 months for various offences.

11. The Mother was released from prison in April 2013.

12. The Father filed an Application in the Newcastle Registry of the Court on 23^rd may 2013, seeking orders that:

    a)he should have sole parental responsibility for the child;

    b)the child should live with him; and

    c)the child should spend supervised time with the Mother at a contact centre for two hours each fortnight.

13. The Application was returnable on 25^th June 2013. There was no appearance by either party on the return date and his Honour Judge Coakes dismissed the Application for want of prosecution.

14. On 7^th August 2013 the Mother, through her solicitors Nash Allen Williams & Wotton, filed an Application for parenting orders. In her application, which was returnable on 18^th September 2013, the Mother sought orders that:

    a)the child should live with her;

    b)the parents should have equal shared parental responsibility for the child;

    c)the child should spend time with the Father each alternate weekend from 5:00pm on Friday to 5:00pm on Sunday;

    d)the Father should return the child to the mother forthwith; and

    e)changeovers between the parents should take place at the McDonalds restaurant at Property N.

15. The parties both attended court on 18^th September 2013 and her Honour Judge Terry made orders that:

    a)the parties should attend a child dispute conference with a Family Consultant that day;

    b)the Father was to file and serve a response and supporting affidavit by 18^th October;

    c)the parties should contact (omitted) Contact Centre to make arrangements for the mother to spend supervised time with the child;

    d)the Application was transferred to the Sydney Registry of the Court; and

    e)an Independent Children’s Lawyer was to be appointed to represent the child’s interests under s.68L of the Family Law Act 1975 (Cth).   

16. That same day, the Father’s former solicitors (who shall remain nameless) filed a Notice of Intention to Withdraw as Lawyer, correctly naming the Father as the Applicant and, bizarrely, naming the (omitted) Correctional Centre as the Respondent.

17. On 18^th November 2013 the parties attended Court in Sydney. The Father was represented by the Duty Lawyer from Legal Aid NSW. The Independent Children’s Lawyer, Ms Coady, appeared.

18. Interim Orders were made by consent providing that:

    a)the child would live with the Father;

    b)the child would spend time with the Mother at such times and on such dates as could be accommodated by the (omitted) Contact Centre;

    c)the child was to have telephone communication with the Mother;

    d)neither party was to denigrate the other;

    e)the parties were to keep other advised of their contact telephone numbers;   

    f)the parties would be at liberty to communicate with all hospital and health practitioners in control of the child’s treatment;

    g)both parties were to submit to urine analysis to detect the presence of drugs of abuse; and

    h)the parties were to make inquiries about enrolling in a parenting after separation course.

19. The Application was listed for interim hearing on 16^th December 2013. On that date, the parties entered into further interim Consent Orders, providing that:

    a)the child would spend time with the Mother at an Indoor Play Centre on 21^st December;

    b)the child would then spend two hours with the Mother at the (omitted) Shopping Centre on alternate Saturdays;

    c)the child’s time with the Mother would be supervised by the paternal grandmother;

    d)the parties would continue their efforts to maintain their place on the waiting list at the (omitted) Contact Centre.

20. The Father obtained legal representation from his current solicitor, Mr Taylor, who appeared for the first time when the matter was mentioned on 25^th February 2014 and adjourned to 27^th May.

21. The Mother did not attend Court on 27^th May and her solicitor was granted leave to withdraw. The Court was advised that the Mother had failed to attend the (omitted) Contact Centre as arranged and the parties had been excluded from the program.

22. The matter was listed for undefended hearing on 21^st July. The Mother did not attend Court.    

Parenting Applications

1. Where a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act, which are set out in s.60B(1). The Court must also have regard to the principles underlying those objects, which are set out in s.60B(2) of the Act.

2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in the child’s best interests, having regard to the primary considerations in subsection 60CC(2) and the additional considerations in subsection 60CC(3).

3. Section 61 DA requires the Court to apply the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.

4. Section 65DAA applies when the Court has made an order that a child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider the question of the child spending equal time with each parent or, in the alternative, substantial and significant time with each parent.

Evidence and Submissions

1. The Mother did not attend Court. There was no explanation for her failure to attend, any more than there was for her failure to attend on the previous occasion.

2. The Father relied on his affidavit of 18^th July 2014, which referred to his previous affidavit filed on 13^th November 2013. The Father deposed in his affidavit that the Mother had not telephoned him to speak to the child in accordance with the Orders of 18^th November 2013.

3. The Father also deposed that the Mother had not attended the (omitted) Contact Centre to spend time with the child in accordance with the interim Orders. After two failures by the mother to attend, the Contact Centre cancelled the arrangements.

4. The Father annexed to his affidavit a copy of a urine drug test dated 22^nd April 2014, showing no illicit drug was detected.

5. The Father deposed that he lives with the child in a three bedroom house, where the child has her own bedroom. He shares this accommodation with his new partner and her two children, aged nine and ten years.

6. It is the Father’s evidence that the child is currently in good health, although she has had surgery on a number of occasions to correct a skin condition. She was due for surgery again on 22^nd July.

7. The Father deposed that he is currently unemployed and is able to care for the child on a full-time basis.

8. The Father also deposed that his mother is of aboriginal descent, and said:

   I am aware of my aboriginal heritage and intend when X is old enough to explain to her the history of my family and our aboriginal background. At present I believe X is too young to understand anything of the cultural background of the aboriginal people and I have not seen it as a priority in her upbringing.[1]

   [1] Affidavit of Mr Bissell 18.7.2014 at paragraph [26]

9. The Father addressed his history of drug abuse in this way:

   I acknowledge that in the past I had problems arising from my drug use. However, since I became the primary carer for X in about August 2012, I have been able to abstain from drug use as well as obtain and maintain steady employment. X is and has been the reason why I have turned my life around. I love her dearly and wish to continue to be her primary carer and parent.[2]

   [2] Ibid at [28]

Conclusions

1. The best interests of the child remain the paramount consideration. In my view, the failure of the Mother to maintain her involvement with the child, despite the interim parenting orders made in her favour, and, indeed, the failure of the Mother to remain involved in the current proceedings, both militate against her case for the child to live with her or spend substantial and significant time with her.

2. Clearly, the Mother’s failure to maintain her involvement with the child and her unexplained absences from the arrangements at the Contact Centre indicate that it would not be in the child’s best interests to apply the presumption of equal shared parental responsibility. There appears to me to be no alternative to an order that the Father should have sole parental responsibility for the child.

3. It also appears clear that it is in this little girl’s best interests to continue to live with her father, who appears to have made efforts to remove himself from involvement from illicit drugs. His new relationship appears to be a positive sign that his life has entered a new phase of stability, which is clearly in his daughter’s best interests.

4. I propose to order that the Father will have sole parental responsibility for the child and that she should live with him. There does not appear to be any viable parenting order that can be made in favour of the mother at this stage.

5. The Independent Children’s Lawyer will be discharged, with the thanks of the Court. The Father has been well advised and represented, first by the duty lawyer from Legal Aid NSW, Ms Tin, and more recently by his current solicitor, Mr Michael Taylor, who appeared on a pro bono basis, to his credit. The Applicant was also well represented by Mr Wotton, a well-respected and experienced solicitor from the Central Coast, but he had no option but to withdraw when he found himself bereft of instructions.

6. I will make no order for costs. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 21 July 2014