Hoare and Northfield

[2014] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOARE & NORTHFIELD [2014] FCCA 2721

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the children – two children living with mother – children aged 5 years and 3 years – violence issues – drug issues – where father did not attend court.

Legislation:  

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

Federal Circuit Court Rules 2001, r.16.05

Applicant: MR HOARE

Respondent: MS NORTHFIELD

File Number: SYC 1092 of 2014

Judgment of: Judge Scarlett

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Sydney

Delivered on: 20 November 2014

REPRESENTATION

Applicant: No appearance

Solicitor for the Respondent: Ms Kelso

Solicitors for the Respondent: Legal Aid NSW

Independent Children’s Lawyer: Ms Renshall

Solicitors for the Independent Children’s Lawyer: Kathryn Renshall Solicitors

ORDERS

1. All earlier parenting orders are discharged.

2. The mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

3. The children X and Y are to live with the mother

4. The Independent Children’s Lawyer is discharged. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 1092 of 2014

MR HOARE

Applicant

And

MS NORTHFIELD

Respondent

REASONS FOR JUDGMENT

1. The application before the Court was originally an Application for parenting orders relating to the parties’ two sons X, aged five, and Y, aged three years.  The father was the Applicant.  However, his Application was dismissed under rule 13.03C due to his non-attendance at Court.  The father was represented by a solicitor but the solicitor withdrew from the record on 25 September 2014. The father has not attended Court for these proceedings and the mother believes that he may be in prison in another State.

2. The mother now has carriage of the matter and she seeks the orders set out in her response, namely:

   a)That she should have sole parental responsibility for the children; and

   b)That the children should live with her.

3. An Independent Children’s Lawyer has been appointed and has provided valuable assistance to the Court. 

4. The mother relies on her response and on her two affidavits, the first of 14 May this year and the second of 14 November.  I have also had the benefit of receiving case outline documents, both from the mother’s solicitor and from the Independent Children’s Lawyer.  I have had documents produced on subpoena from the New South Wales Police and from (omitted) Psychological and Consultancy Service.

Orders Sought

1. The mother seeks orders that the children should live with her and that she should have sole parental responsibility for them.

The law in respect of applications for parenting orders

1. In dealing with parenting orders, the Court must consider a number of sections of the Act set out in Part VII, namely:

   a)Section 60B, which deals with the objects of this Part of the Family Law Act and the principles underlying those objects;

   b)Section 60CA, which states that the Court must regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which prescribes the way that the Court ascertains what is in the best interests of the children;

   d)Section 61DA which relates to the presumption of equal shared parental responsibility and how it is to be applied; and

   e)Section 65DAA which applies in circumstances where the Court has made an order that the parties should have equal shared parental responsibility.

Parental Responsibility

1. I do not need to consider the matters under section 65DAA of the Act, because I do not intend to make an order that the parties should have equal shared parental responsibility for these two children.

2. The presumption that it is in the children’s best interest for their parents to have equal shared parental responsibility does not apply in cases of family violence.  The mother’s affidavits contain numerous examples of family violence. They include violence and abuse directed to her and, at least, one occasion of violence directed towards the older child, X.

3. The Court is required by subsection 60CC(2) – particularly in paragraph (b) – to make orders protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  The evidence in this case is so telling that it seems to me that the only possible order, in respect of parental responsibility, is that the mother should have sole parental responsibility and that the parenting orders to be made should reflect the Court’s concern about abuse towards the mother and the children at the hands of the father.

4. There are proceedings in the Local Court on foot at the moment in respect of an Apprehended Domestic Violence Order to protect the mother.  As I said, there are examples of violence towards the mother and, certainly, the older child, X, and abuse directed towards them both. 

5. There is also the disturbing evidence of the father’s involvement with illicit drugs.  This is graphically illustrated by a matter to which I drew the mother’s attention in her oral evidence about circumstances where the child, X, had been present at his paternal extended family’s home and had had apparently ingested a pill and showed symptoms sufficient for the mother to arrange to take him to hospital as soon as she could.  Urine analysis showed that the child had amphetamine in his system.  It is clear, from the mother’s evidence, that the only place that the child could have obtained this was at the home of the paternal extended family.  The Court has serious concerns as to how that should have occurred.

6. The mother herself told the Court in no uncertain terms that she does not have and has not had any involvement with illicit drugs.

Orders that are in the best interests of the children

1. It is quite clear that the best interests of the children require that they should live with their mother and that she should have sole parental responsibility for them.

2. I do not intend to make any further parenting orders.  I note that, in any event, the father is currently incarcerated and it would seem that parenting orders in his favour would not be warranted at all.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  21 November 2014