HOBBS and ROTH

[2018] FCWA 163

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: HOBBS and ROTH [2018] FCWA 163

CORAM: DUNCANSON J

HEARD: 21 AUGUST 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 5653 of 2017

BETWEEN: MS HOBBS

Applicant

AND

MR ROTH

Respondent

Catchwords:

CHILDREN - Undefended proceedings - Where there has been family violence - Where it is in the best interests of the child that the mother have sole parental responsibility for him, that he live with her and she be permitted to relocate the child from Regional Town A to Perth

Legislation:

Family Court Act 1997 (WA) s 66, s 66C

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr B Ferguson
Respondent	:	No Appearance

Solicitors:

Applicant	:	Aboriginal Family Law Services
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern eight year old [L]. He is the son of [Ms Hobbs], the mother and [Mr Roth], the father.

2L lives with the mother and spends time with the father.

3The parties live in [Regional Town A]. The mother wants L to live with her and she seeks permission to relocate him to Perth.

4On 5 April 2018 an order was made extending the time for the father to file trial documents to 11 May 2018. It was ordered that in the event that he failed to comply with the order, then subject to any further order of the Court, his response be dismissed and the mother have leave to proceed on an undefended basis.

5The father did not file his trial documents. He did not attend the trial. I ordered that the mother have leave to proceed on an undefended basis and the father's response filed 18 July 2017 be dismissed.

THE ORDERS SOUGHT

6The mother filed a Minute of Orders sought, but at the trial it was apparent that orders she then sought differed to those in the minute.

7The mother seeks an order that she have sole parental responsibility for L and that he live with her. The mother also seeks permission to relocate L to Perth. She proposes L spend time with the father in Perth on terms and conditions as she sees fit. She seeks injunctions relating to non-denigration of herself and her sister, [Ms H] and restraining the father from consuming alcohol while L is in his care.

FAMILY BACKGROUND AND SHORT HISTORY

8The mother was born [in] 1992. She is 25 years of age. She is a [fly-in/fly-out worker]. The father was born [in] 1988. He is 29 years of age. He is a [truck driver].

9The parties commenced their relationship in 2007.

10L was born [in] 2010.

11The parties separated finally in March 2017.

12There was family violence between the parties during the relationship. The police were called to attend the parties' home on numerous occasions. The father drank to excess. He was controlling and abusive. The mother suffered anxiety for which she received counselling. The mother is fearful for her safety in Regional Town A.

13In March 2017 the father slashed tyres on the mother's vehicle. The father threatened to place intimate images of the mother on social media.

14The father drove his vehicle at the mother's vehicle and damaged it.

15The mother's grandmother will be moving to Perth. She is elderly and requires family support. The mother's parents and sister are preparing to leave Regional Town A. The mother fears her mental health will suffer if she is required to remain there and she seeks to relocate to Perth to continue to receive the support of her family.

16On 30 May 2017 an order was made that L spend time with the father on Tuesdays, Thursdays and Saturdays in each week.

17On 17 May 2017 the mother filed a notice of child abuse or family violence or risk. The Department of Communities provided its assessment dated 2 October 2017. The Department noted there were a number of recorded incidents of domestic violence between 2014 and 2017, although no further action was taken. The Department confirmed the mother was acting protectively of L and there were no concerns for him in her care.

18The father has seen L on only two occasions since April 2018.

THE EVIDENCE

19The mother relied on her affidavits filed 9 April 2018 and 20 February 2018, her Case Information Affidavit and an affidavit of Ms Hobbs filed 20 February 2018. The mother and Ms Hobbs gave oral evidence. Their evidence was reliable.

THE LAW

20These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 66.

21The objects are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

22In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration. Section 66C sets out those matters which the Court must consider in determining what is in the child's best interests.

23The primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying those considerations the Court is to give greater weight to the need to protect the child from harm.

Parental responsibility

24When making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

25Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.

26The presumption does not apply in circumstances where there is abuse or family violence.

27The mother seeks an order for sole parental responsibility for L and I refer to that further below.

THE PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

28L has a meaningful relationship with the mother and it is to his benefit that it continues. It is to L's benefit to have a meaningful relationship with the father, but this must be balanced against the need to protect him from harm.

the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

29There is not a need to protect L from harm in the care of the mother. There is a need to protect him from harm in the care of the father. The father consumed alcohol to excess and there has been family violence between him and his partner, [Ms D].

THE ADDITIONAL CONSIDERATIONS

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

30The mother says L has said he would like to live in Perth with his mother and his aunt, and to have a relationship with his extended family. L's class teacher reported that L frequently talks in an excited manner about moving to Perth. L sometimes wants to see the father. He did not like the father smoking in the car.

the nature of the relationship of the child with -

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

31L has a close and loving relationship with the mother and also with his maternal grandparents. Ms H has a significant relationship with L and has cared for him extensively. L refers to both the mother and Ms H as his mothers. From the mother's description, L's relationship with the father is an inconsistent one.

32L's class teacher reports that L gets on well with other students in the class and has made a lot of friends.

the extent to which each of the child's parents has taken, or failed to take, the opportunity -

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

33The mother has made decisions about major long-term issues in relation to L since separation. Both parties have maintained L.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

34L is accustomed to living with the mother and spending limited time with the father. In the event L moves to Perth he will be separated from his father, but what will remain unchanged are his primary carers, namely his mother, and Ms H. This is likely to assist him to adjust to changes in his circumstances. L has relatives in Perth and the mother proposes he attends the same school as a cousin.

35L will have an opportunity of spending time with the father in Perth, provided this can be done safely. The mother also proposes that he have electronic communication with the father. She deposes to feeling withdrawn and worthless in Regional Town A and fearful of the father, his family and friends. It is likely that L will benefit from his mother's happiness in Perth.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

36There is practical difficulty and expense by reason of distance and travel. Both parties are in employment and can meet the costs of travel. Electronic communication will assist L in maintaining a connection with the father.

the capacity of -

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs

37The mother provides well for L on all levels. This is evidenced by the letter from his teacher at [Regional Town A Primary School]. L's classroom teacher reported that L comes to school well prepared with recess and lunch, and neatly presented, always in a fresh school uniform. She reports that L has a good attendance record, however he is at educational risk. He receives extra assistance in the class and has shown significant improvement this year, and is making steady academic progress. The father does not provide well for him when he exposes him to family violence between him and Ms D.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

38L is eight years of age. L's class teacher describes him as a pleasure to teach and always eager to please. She says he has grown in confidence.

if the child is an Aboriginal child or a Torres Strait Islander child -

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

39The mother is [an Aboriginal woman] from the [Regional Town A] area. The father is a Torres Strait Islander man. If the mother is permitted to relocate L to Perth, she will maintain his strong cultural links with the maternal grandparents, who propose to relocate to the [Coastal City B] area. She will provide for L's Aboriginal culture and cultural safety in Perth. The orders proposed by the mother do not impact upon L's right to enjoy his Aboriginal or Torres Strait Islander culture.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

40The mother has demonstrated a responsible attitude to L and to the responsibilities of parenthood. She says the father has not done so by consuming alcohol while L is in his care, smoking in his vehicle, and engaging in family violence with Ms D in the presence of L.

41The mother works fly-in/fly-out and Ms H cares for L in her absence.

42The father has not consistently sought to spend time with L.

any family violence involving the child or a member of the child's family

43There has been family violence between the parties as set out above. There continues to be family violence between the father and Ms D. The mother's sister was assaulted by a relative of the father. The maternal grandmother was assaulted by a relative of the father's partner. The mother was involved in an assault with a friend of the father. These incidents occurred in Regional Town A. The mother seeks to remove herself from that environment.

44L has been exposed to problems of excessive alcohol consumption and violence in Regional Town A. The mother also wishes to remove him from that environment.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

45A violence restraining order was made protecting the mother against the father on 1 August 2017. This arose from the father's deliberate act of driving his vehicle at that of the mother.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

46It is desirable to make a final order to conclude these proceedings. The orders sought by the mother achieve that outcome.

any other fact or circumstance that the court thinks is relevant

47The mother received counselling for the trauma that she suffered as a result of her relationship with the father.

48The mother is in a developing relationship. Her partner resides in Perth.

49The mother will continue to be employed as a fly-in/fly-out worker. Ms H will care for L in her absence at work. The mother's employer will fly her from Perth to her place of work at [Regional Town C].

CONCLUSIONS

50Having considered the evidence in the context of the primary and additional consideration, I have come to the following conclusions.

Parental responsibility

51There has been family violence between the parties. The presumption that it is in L's best interests that his parents have equal shared parental responsibility for him does not apply. I intend to order that the mother have sole parental responsibility for him. She is able to make decisions about long-term issues for him in the future.

The child’s living arrangements

52I intend to order that L live with the mother and she be permitted to relocate him to Perth. The mother has been L's primary carer since his birth, with the assistance of Ms H. It would be in L's best interests to continue to live with the mother, as she provides well for him and has acted protectively of him.

53L's continued relationship with the father will depend on the effort made by the father to spend time with him. That time will be spent on such terms and conditions as the mother considers fit to ensure L's safety.

54I have weighed and balanced the matters referred to above and I am satisfied that it is in L's best interests to make the orders sought by the mother as set out below.

THE ORDERS

55I made the following orders:

1The Applicant, [MS HOBBS] have leave to proceed on an undefended basis.

2The Respondent, [MR ROTH]'s response filed on 18 July 2017 be dismissed.

3Order for witnesses out of Court.

4All previous parenting orders be dismissed.

5The Applicant, have sole parental responsibility for the child [L] born [in] 2010.

6The child live with the Applicant.

7The Applicant have permission to relocate the child to Perth, Western Australia.

8The child spend time with the Respondent, at such times and on such terms and conditions as the Applicant thinks fit.

9Handovers for the purpose of the child spending time with the Respondent be facilitated by the Applicant's sister, [Ms H].

10The child have electronic communication with the Respondent by Skype or telephone including on special occasions as may be agreed between the parties and in accordance with his wishes, to be facilitated by [Ms H].

11The Respondent be restrained and an injunction granted restraining him from:

(a)denigrating the Applicant or [Ms H] to, or in the presence of the child, or in communications between them, or on social media; and

(b)consuming alcohol while the child is in his care.

12In the event the child suffers from a major health issue, then the party with whom the child is living shall immediately inform the other party of that issue.

13For the purpose of communication between the Respondent and the Applicant, the Respondent shall communicate with [Ms H] as the Applicant's nominee.

14This is an order to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Family Violence Order made in the case between the parties on 1 August 2017 in the Magistrates Court at [Regional Town A] being Complaint number [xxx], the aforesaid parenting order shall prevail and the Family Violence Order is invalid to the extent of the inconsistency.

15The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at [Regional Town A] and the Chief Executive Officer of the Department of Communities.

16The proceedings otherwise be dismissed.

17All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

18In relation to material tendered as an exhibit into evidence in these proceedings

(a)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and

(b)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

19In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 17 and 18 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

23 AUGUST 2018