DUMAS & DUMAS

[2011] FamCA 647

FAMILY COURT OF AUSTRALIA

DUMAS & DUMAS [2011] FamCA 647

FAMILY LAW – CHILDREN – evidence of serious and substantial family violence – undefended hearing – where the children have not spent any time with the father since 2006 – where the children have expressed strong negative feelings towards the father – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Dumas

RESPONDENT: Mr Dumas

FILE NUMBER: SYC 7795 of 2007

DATE OF ORDERS: 16 March 2011

DATE OF REASONS: 11 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 16 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Doolan Wagner & Callaghan

SOLICITOR FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders made 16 March 2011

1. That the mother have sole parental responsibility for the children,  B born … September 2000, D born … September 2002 and N born … September 2004, including but not limited to decisions as to where the children reside, travel outside Australia and the surname by which they are known.

2. The children live with the mother and during such time she has sole responsibility for making decisions about their day to day care, welfare and development.

3. That the father does not spend time with or communicate with the children.

PENDING FURTHER ORDER

1. The applicant mother is to advise the Court via the Registry Manager of any change in the address to which notice from the Court may be sent.

2. The address to which notice from the Court may be sent is care of Ms T, … Y Street, Sydney Suburb 1, NSW, … .

3. I dispense with further service process in relation to these proceedings upon the father.

4. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7795 of 2011

Ms Dumas

Applicant

And

Mr Dumas

Respondent

REASONS FOR JUDGMENT

1. In these proceedings parenting orders were sought by Ms Dumas, born in 1980 (“the mother”) in relation to the parties’ children, B, born … September 2000, D, born … September 2002 and N, born … September 2004 (“the children”). The respondent is the father, Mr Dumas, born in 1976 (“the father”).

2. An Initiating Application was filed by the mother on 7 July 2009.  She sought sole parental responsibility, the children live with her and that the father not see or communicate with the children.  On 20 November 2009, she filed an Application in a Case seeking the same orders.  The father filed a Response to an Application in a Case on 7 December 2009 seeking, inter alia, equal time and equal parental responsibility.

3. On 21 December 2009, Johnston JR made interim parenting orders in accordance with the mother’s Application in a Case.

4. The father did not make an appearance before me nor did he file a Response to the Initiating Application. Moreover, no Notice of Address for Service has been filed since his release from gaol, as is required under the Family Law Rules 2004. The notification for trial was forwarded to him at the gaol however this was returned to the Court. Because the Court did not have an address for the father and he had not filed a Response further service was dispensed with and this hearing proceeded on an undefended basis.

5. At the hearing the mother provided a minute of order which reflect her orders sought in the initiating application with the omission of proposed Order 4 concerning costs.  The orders sought by the mother in her minute of order reflect the orders of Johnson JR and the arrangements that have been in place since 2006.

6. After hearing the mother’s application, I made orders on 16 March 2011 and now publish my reasons for making those orders.

Background Facts

1. The parties met in 1999 and married in 2000.

2. In August 2005 there was an incident at the parties’ home in which the Police were called and the father was issued with a Police warning.

3. In July 2006 the parties had an argument in which the father said to the mother:

   When you go out tonight I am going to take the children and do something stupid.

   The mother called the Police and the father was removed from the home.  The mother and the children stayed at a refuge for one and a half weeks.

4. At this time the parties separated and an Apprehended Violence Order (“AVO”) was made in the local court.

5. In August 2006, the mother agreed to meet the father so that he could see the children.  The father suggested that the parties move away from the car so that they could talk.  However, in a secluded part of the park the father viciously assaulted the mother.  He repeatedly punched her and then stabbed her in the arm.  The father left the mother, returned to her car and drove off with the children.  The mother was hospitalised.

6. The father and the children were located by the police in Canberra.  The children were delivered back to the care of the mother and since this time they have had no contact with the father.

7. In August 2007, the father was convicted of breaching the AVO, intent to cause grievous bodily harm and three counts of kidnapping in relation to which he was sentenced to three years imprisonment.

8. In February 2008 the parties divorced.

9. In July 2008, the AVO was varied to include the mother and the three children and extended for a period of five years from July 2008.

10. The father was released from gaol sometime around March 2010 and has not attempted to make contact with the mother or the children.

The Mother’s Evidence

1. The mother relies on paragraphs 36 to 87 inclusive from her affidavit filed 20 November 2009 and the Notice of Abuse or Family Violence filed 7 July 2009.

2. Paragraphs 36 to 49 of the mother’s affidavit detail the circumstances that led to the incident in August 2006; paragraphs 50 to 68 provide details of the incident on that day; and paragraphs 68 to 87 detail the mother’s circumstances since the incident in August 2006. 

3. The particulars of the incident in August 2006 and the events leading to that incident are detailed above and do not need to be repeated.

4. It is the mother’s evidence that she and children were traumatised by the events of 2006.  She says that immediately after the incident and for some months she lacked confidence which included being too scared to leave her home and fearful if the children were out of her sight.  The mother also stated that the children did not sleep well, had nightmares and were vigilant.  The two older children expressed strong negative feelings towards the father. However, as time passed the mother says that the children settled and that they are now progressing well, psychologically, academically and socially. They are now settled in their respective school and day-care and are involved in extra curricular activities.

5. The mother has re-partnered and plans to marry in January 2012.  She has attended TAFE and now works as a full time tradesperson.  Sadly, the mother’s fear of the father is ever-present and she is very fearful of the potential impact if he was to re-enter the children’s lives. 

6. The evidence of the family consultant, detailing the interview the family consultant had with the mother, supports the evidence in the mother’s affidavit and the orders sought by her.

General law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, ss 60CA and 65AA ensure that the child’s best interests are the paramount consideration.

3. Section 61DA requires that for 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.”

4. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.”  Essentially the presumption relates to parental decision making and does not determine where or with whom a child will live.

5. In a situation in which the Court is proposing to make an order that the children’s parents have equal shared parental responsibility, s 65DAA requires the Court to consider that the children spend equal time or substantial and significant time with each parent.

6. However, by virtue of s 61DA(2), the presumption of equal shared parental responsibility does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)).  Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.  The process for doing so is found in s 60B and s 60CC.

7. Section 60B sets out the objects of Pt VII and the principles which underline those objects. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. 

8. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

9. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). 

10. In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

Application of the Law to the Facts

1. It is beyond dispute that there has been at least one incident of serious and substantial family violence.  Therefore by virtue of s 61DA(2) the presumption of equal shared parental responsibility does not apply.  Thus it is necessary to decide the appropriate parental responsibility arrangements that will promote the children’s best interests by reference to the considerations under s 60CC.  It is to this that I now turn.

Section 60CC(2)(a)

1. The children clearly have a meaningful relationship with the mother and will benefit from that relationship. The mother has been the children’s primary carer since birth, and has had sole parental responsibility since August 2006.

2. The children have not spent any time with the father since August 2006. The children do not refer to the father as their dad but on the occasions they do refer to him they call him by his first name.  As I noted above, it is the mother’s evidence that the two older children have both at separate times expressed strong negative feelings towards the father.

Section 60CC(2)(b)

1. ‘Family Violence’ is defined in the Act as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or reasonably to be apprehensive about, his or her personal well being or safety.” (s 4).

2. The father was convicted of intent to cause grievous bodily harm when he assaulted and stabbed the mother in 2006 for which he served time in gaol. This serious act of violence is in addition to other threats to kill or harm the children and/or the mother which resulted in the initial AVO. Exposure to this type and extent of family violence would clearly put the children at risk of physical and psychological harm.

Section 60CC(3)(a)

1. The children are 10, 8 and 6 years of age and their views carry some weight. It is noteworthy that the older two children have expressed strong negative feelings towards their father.  The youngest child was 2 when they last saw each other and has no recollection of him.

Section 60CC(3)(b)

1. The children have a positive relationship with their mother and I accept her evidence that the children and her partner are developing “loving and close relationships”.

2. The children have not had a relationship with the father since 2006. 

Section 60CC(3)(c), (4)

1. As there is overlap between the considerations in s 60CC(3)(c) and s 60CC(4), they will be considered simultaneously.  Due to the issues of family violence, the existence of the AVO and the father’s time in gaol, these considerations are not relevant.

Section 60CC(3)(d)

1. The children currently live and will remain living with the mother who has been their sole carer since 2006 and primary carer since birth. The children have not spent any time with the father since 2006. The orders do not institute any change in the children’s circumstances.

Section 60CC(3)(e)

1. As the orders do not include any time with the father, this does not require consideration.

Section 60CC(3)(f)

1. I am satisfied the mother is able to provide for the needs of the children, including their emotional, psychological and intellectual needs.

Section 60CC(3)(g)

1. There are no relevant considerations that arise pursuant to this subsection that have not otherwise been considered.

Section 60CC(3)(h)

1. Neither party identifies the children as Indigenous Australian.

Section 60CC(3)(i)

1. There are no relevant considerations that arise pursuant to this subsection that have not otherwise been considered.

Section 60CC(3)(j)

1. The issues of family violence have already been considered in s 60CC(2)(b).

Section 60CC(3)(k)

1. There is an AVO in existence for the protection of the mother and the three children that is in force until July 2012.

Section 60CC(3)(l)

1. These orders, which allocate sole parental responsibility and residence of the children to the mother, are the least likely to lead to further proceedings. They preserve the parenting arrangements of the past 4½ years which have served the children well.

Conclusion

1. The presumption of equal shared parental responsibility does not apply due to the family violence perpetrated by the father against the mother (s 61DA(2)). She alone has parented the children for the last four plus years and will continue to do so.  It is appropriate that she has sole parental responsibility.

2. Given the father’s lack of participation in these proceedings and the existence of the AVO, no orders are made in relation to the father’s time with the child.  

3. For these reasons, I am satisfied the orders I made on 16 March 2011 are in the children’s best interests.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 11 July 2011.

Associate:      

Date:    11 July 2011