GARTH & SABOSKI - [2017] FamCA 964

FAMILY COURT OF AUSTRALIA

GARTH & SABOSKI

[2017] FamCA 964

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Application of the mother for final parenting orders in relation to her and the father’s child, aged seven – Where the father did not appear in Court and the matter proceeded on an undefended basis – Where there were serious allegations of family violence and substance abuse by both parents – Where the mother has a history of alcohol abuse but she is currently sober – Where there are concerns about the father’s mental health and substance abuse – Where it is found that family violence was perpetrated by each parent against the other – Where it is important that the child’s relationship with both parents be maintained – Orders made for the child to live with the mother and spend every third weekend with the father with oversight by the paternal grandfather.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the presumption against equal shared parental responsibility is rebutted by a finding of family violence – Where the evidence shows the parents are unable to communicate in relation to the child’s needs – Where the father has challenged the mother in relation to medical treatment of the child – Orders made for the mother to have sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father to re-open the substantive proceedings – Where the father did not attend Court for the final hearing despite having sufficient knowledge of the listing – Where it would be against the interests of justice to re-open the proceedings – Where the father was permitted to file written submissions in relation to the substantive proceedings – Where the mother was awarded costs for the father’s interim application to re-open the proceedings.

APPLICANT:

Ms Garth

RESPONDENT:

Mr Saboski

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

WOC

110

2014

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

6, 7 and 17 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Rowley & Ross Lawyers

THE RESPONDENT:

No Appearance on 6 and 7 November 2017

COUNSEL FOR THE RESPONDENT:

Mr Alexander on 17 November 2017 only

SOLICITOR FOR THE RESPONDENT:

Acorn Lawyers on 17 November 2017 only

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

Orders

IT IS ORDERED

That the child B (“the child”) born … 2010 live with the mother.
That the mother have sole parental responsibility for the child.
That the mother advise the father of any significant medical treatment which the child receives and of any counselling or therapy in which the child is engaged from time to time.
That the father spend time with the child, subject to Order 4, as follows:
(a)From 4.00 pm Friday to 4.00 pm Sunday on every third weekend; and
(b) Such other times as agreed between the parents.
That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GARTH & SABOSKI [2017] FamCA 964
Case: [2017] FamCA 964
Decision Date: 29 November 2017

CaseChat Overview and Summary

In this matter before Rees J, the mother sought final parenting orders for the parties' seven-year-old child. The father did not appear at the final hearing, and the proceedings were conducted undefended. The case involved serious allegations of family violence and substance abuse by both parents. The mother had a history of alcohol abuse but was currently sober, while concerns were raised about the father's mental health and substance abuse. The court found that each parent had perpetrated family violence against the other.

The primary legal issues before the court were whether to grant the mother's application for final parenting orders, the extent of parental responsibility to be allocated, and the nature of the time the child would spend with each parent, given the findings of family violence and the parents' inability to communicate effectively regarding the child's needs. The court also considered the father's application to re-open the substantive proceedings.

Rees J determined that the presumption of equal shared parental responsibility was rebutted due to the findings of family violence and the parents' demonstrated inability to communicate about the child's welfare. The court found that the father's application to re-open the proceedings was not in the interests of justice, as he had sufficient notice of the hearing but failed to attend. Consequently, the court made orders for the child to live with the mother and for the mother to have sole parental responsibility. The father was permitted to spend time with the child on every third weekend, but this time was subject to significant oversight by the paternal grandfather and facilitated through a contact centre, with specific undertakings required from the grandfather to ensure the child's safety. The father was also ordered to pay costs for his interim application to re-open the proceedings.

Orders

Orders of the court

IT IS ORDERED

That the child B (“the child”) born … 2010 live with the mother.

That the mother have sole parental responsibility for the child.

That the mother advise the father of any significant medical treatment which the child receives and of any counselling or therapy in which the child is engaged from time to time.

That the father spend time with the child, subject to Order 4, as follows:

(a) From 4.00 pm Friday to 4.00 pm Sunday on every third weekend; and

(b) Such other times as agreed between the parents.

That the father’s time with the child in Order 4 above does not commence until:

(a) The paternal grandfather provides written undertakings to the Court that:

(i) Each time that the father spends with the child the paternal grandfather will spend time with the father and child on each day, being Friday, Saturday and Sunday, including sharing a meal with the father and child on one of those days.

(ii) If the paternal grandfather has any concerns about the father’s mental state or presentation, then he is to forthwith remove the child from the father’s care and make contact with the mother, advise her of his concerns and make arrangements to return the child to the mother.

(b) The C Contact Centre is available to facilitate changeovers in accordance with Order 4.

That changeovers of the child, pursuant to these Orders, are to take place at the C Contact Centre at Suburb D.

Each parent is to complete and submit an application form to the C Contact Centre within seven (7) days from the date of these Orders.

The parents are to then do all acts and things necessary to ensure that they are placed on the waiting list for changeover of visits at C Contact Centre.

The parents agree to participate in any course, program and/or counselling session(s) as nominated or suggested by staff at the C Contact Centre in the lead-up to the commencement of the changeovers at the Centre, and the mother agrees to consider involving the child in any course, program and/or counselling session so nominated or suggested.

10.

That the father is to be responsible for any payment requested by C Contact Centre for changeovers at the Centre.

11.

That the father shall continue to submit to random urinalysis drug testing in accordance with the Australian/New Zealand Standard 4308:2001 procedure for the collection, detection and quantification of drugs of abuse in urine and/or alcohol within 24 hours of such request being received by him from the mother for a period of 12 months following the date of the making of these Orders, provided that no more than ten requests may be made.

12.

That the father has leave to provide to any treating psychologist or psychiatrist a copy of the report of Dr E in these proceedings.

13.

That notwithstanding any other Order, the mother may organise any medical, psychological or educational assistance for the child that she deems necessary without the consent of the father.

14.

That the mother shall ensure that the child remain enrolled in the religious school in the Suburb F area throughout her school life unless otherwise agreed in writing by the parents subject to the father being solely responsible for all school fees and other expenses directly related thereto.

15.

That each of the parents is permitted to liaise directly with the child’s schools, sporting bodies or extra-curricular organisations to obtain any necessary information about the child’s progress and that both parents are to authorise the schools, sporting bodies and other organisations to facilitate this.

16.

That the mother is to provide any necessary authorities to the principal of each school attended by the child to ensure that the school forwards to both parents copies of the child’s school reports as they fall due along with all school circulars, newsletters and any invitations to any school activities which parents are invited to attend.

17.

That neither parent is to physically discipline the child or permit any other person to physically discipline the child.

18.

That the father’s Application in a Case filed 15 November 2017 be dismissed.

19.

That within 60 days of the date of these orders, the father pay to the mother’s solicitors the sum of $500 by way of costs of the Application in a Case heard on 17 November 2017.

20.

That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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