FAMILY COURT OF AUSTRALIA
Elton & Donato [2020] FamCA 1011
File number(s): PAC 4658 of 2019 Judgment of: FOSTER J Date of judgment: 8 December 2020 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother – Where orders made for children to spend time with the father as agreed between the parties – Where appropriate to make orders permitting mother to obtain passport for the children and travel internationally with them without the father’s consent. Legislation: Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Number of paragraphs: 146 Date of hearing: 20 October 2020 Place: Parramatta Solicitor for the Applicant: Matthews Folbigg Pty Ltd For the Respondent: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 4658 of 2019 BETWEEN: MS ELTON
Applicant
AND: MR DONATO
Respondent
MARK MACDIARMID
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 OCTOBER 2020
THE COURT ORDERS THAT:
Discharge of prior Orders
1.All prior parenting orders are discharged.
Sole parental responsibility
2.The mother shall have sole parental responsibility for the children X born … 2012 and Y born … 16 (“the children”).
Live with and spend time with Orders
3.The children shall live with the mother.
4.The children shall spend time with the father as agreed between the parents and failing agreement as is determined by the mother.
Passports & overseas travel
5.The children or either of them are permitted to:
(a)travel internationally with the mother;
(b)have an Australian travel document issued to them, without the need for the consent of the Father, pursuant to Section 11(1)(b) of the Australian Passports Act 2005.
6.Judgment is reserved to chambers.
7.The Applicant mother file and serve short submissions in support of any application for costs within 21 days from this date and that thereafter the Respondent father file any submissions in response within a further 14 days and at the conclusion of that period judgment as to costs will be reserved to chambers.
8.The Independent Children’s Lawyer file and serve any further supplementary submissions as to costs sought by the Independent Children’s Lawyer and, if not already done so, serve a copy of the Independent Children’s Lawyer’s case outline summary of argument marked in evidence today as Exh “C” within 21 days from this date and that thereafter the Respondent father file and serve any submissions in response to the Independent Children’s Lawyer’s application for costs within a further 14 days and at the conclusion of that period, judgment as to the…
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- AGLC
- Elton & Donato [2020] FamCA 1011
- Case
- [2020] FamCA 1011
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it was appropriate to make orders granting the mother sole parental responsibility, that the children live with her, and that she be permitted to travel internationally with the children without the father's consent. The court also considered the father's alleged drug use and perpetration of family violence as detailed in the mother's affidavit evidence.
Foster J reasoned that the mother's allegations of the father's long history of substance abuse, including specific incidents of drug possession and use within the family home, and his threatening behaviour towards her, supported proceeding on an undefended basis. The court found that the father's conduct, including admissions of a "cocaine and gambling problem" and instances where children were exposed to his drug use and paraphernalia, posed a risk of neglect if the children were in his care. Consequently, the court discharged prior orders and made new orders granting the mother sole parental responsibility, that the children live with her, and that she be permitted to travel internationally with the children and obtain travel documents without the father's consent, pursuant to section 11(1)(b) of the *Australian Passports Act 2005*.
The court ordered the discharge of all prior parenting orders. The mother was granted sole parental responsibility for the children, and the children were ordered to live with the mother. The children were to spend time with the father as agreed between the parents, or failing agreement, as determined by the mother. The mother was permitted to travel internationally with the children and to obtain Australian travel documents for them without the father's consent. Judgment was reserved on costs.
Orders
Orders of the court
PAC 4658 of 2019
BETWEEN:
MS ELTON
Applicant
AND:
MR DONATO
Respondent
MARK MACDIARMID
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 OCTOBER 2020
THE COURT ORDERS THAT:
Discharge of prior Orders
1. All prior parenting orders are discharged.
Sole parental responsibility
2. The mother shall have sole parental responsibility for the children X born … 2012 and Y born … 16 (“the children”).
Live with and spend time with Orders
3. The children shall live with the mother.
4. The children shall spend time with the father as agreed between the parents and failing agreement as is determined by the mother.
Passports & overseas travel
5. The children or either of them are permitted to:
(a) travel internationally with the mother;
(b) have an Australian travel document issued to them, without the need for the consent of the Father, pursuant to Section 11(1)(b) of the Australian Passports Act 2005.
6. Judgment is reserved to chambers.
7. The Applicant mother file and serve short submissions in support of any application for costs within 21 days from this date and that thereafter the Respondent father file any submissions in response within a further 14 days and at the conclusion of that period judgment as to costs will be reserved to chambers.
8. The Independent Children’s Lawyer file and serve any further supplementary submissions as to costs sought by the Independent Children’s Lawyer and, if not already done so, serve a copy of the Independent Children’s Lawyer’s case outline summary of argument marked in evidence today as Exh “C” within 21 days from this date and that thereafter the Respondent father file and serve any submissions in response to the Independent Children’s Lawyer’s application for costs within a further 14 days and at the conclusion of that period, judgment as to the Independent Children’s Lawyer’s costs will be reserved to chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In these circumstances, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis. The mother’s allegations: the father’s drug use and perpetration of family violence It is the mother’s case that throughout the parties’ relationship the father misused illicit substances and displayed threatening behaviour towards her. Although she concedes that she does not experience the “same level of aggression” from the father, she remains concerned that he is heavily involved with drugs and on this basis poses a risk of neglect to the children if they were to be in his care. In her affidavit evidence, the mother details the father’s long history of substance abuse which she claims dates back to around the time the parties met. The mother recounts incidents in which the father produced from his person illicit substances such as “cocaine”, and details her observations of the father’s involvement with drugs including around the time of her pregnancies. From around 2016 the mother noted changes in the father’s behaviour which she attributed to heavy drug use. For example, she recalls the father having regular nose bleeds, appearing agitated including when he spoke, sometimes having slurred speech, and described him as becoming aloof or, otherwise, increasingly hostile towards her and the children. The mother also deposes that the father became increasingly unkempt and would remain asleep for unusual extended periods of time. On some occasions from 2016 until separation, the mother expressed her dismay at the father’s drug use which aggravated him or was, otherwise, dismissed by him. On one such occasion in September 2018 after finding “white powder on the kitchen bench”, the mother questioned the father stating words to the effect of “how dare you bring this stuff into the home, you told me you would not do this”, to which the father replied “you are crazy, it’s baking soda or something”. Another occasion in 2018, one day before the son’s birthday, the father arrived home at 3.00 am and the mother was awoken to find the father affected by drugs. When the mother told the father “I can’t believe this, you need to take a drug test”, the father responded “fuck off, I will not do that”. Other times the mother scolded the father for his drug use and demanded he take a drug test, the father would, in response, shout profanities at her such as “stop being a c..t”. There has also been numerous incidents in which the children have been exposed to the father’s drug use. As recent as May 2019 the mother recounts that the son approached her “carrying a small bag with white powder in it”. When the mother enquired into the father’s whereabouts, she observed him asleep on his bed with his nose bleeding and surrounded by drug paraphernalia. She says the night before the incident, the daughter had been asleep in the same bed in which the father was found. By late May 2019 the father agreed to submit himself to a residential rehabilitation program after the mother threatened to inform police if he did not do so. A further conversation was had between she and the father in which he admitted in the presence of members of the paternal family that he suffered from a “cocaine and gambling problem”.