Hodge and Crawford

[2013] FCCA 2255

FEDERAL CIRCUIT COURT OF AUSTRALIA

HODGE & CRAWFORD [2013] FCCA 2255

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – sole parental responsibility – best interests of the child – where father has discontinued his application – undefended hearing.

Legislation:

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

Federal Circuit Court Rules 2001 r.13.03C

Applicant: MR HODGE

Respondent: MS CRAWFORD

File Number: SYC 6778 of 2012

Judgment of: Judge Scarlett

Hearing date: 16 December 2013

Date of Last Submission: 16 December 2013

Delivered at: Sydney

Delivered on: 16 December 2013

REPRESENTATION

The Applicant: No appearance

Solicitor for the Respondent: Ms Wallace

Solicitors for the Respondent: Rafton Family Lawyers

Solicitor for the Independent Children's Lawyer: Ms Rutkowska

Solicitors for the Independent Children's Lawyer: Gonzalez & Co

ORDERS

1. All previous parenting Orders in relation to the child [X] born [in] 2005 are discharged.

2. The Mother is to have sole parental responsibility for the child [X] born [in] 2005.

3. The child [X] is to live with the Mother.

4. The child [X] is to spend time with the Father as agreed between the parties and failing that as per the decision of the Mother.

5. The Independent children’s Lawyer is discharged.

6. The parties are to pay their own costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6778 of 2012

MR HODGE

Applicant

And

MS CRAWFORD

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders that was commenced by the Applicant on 12^th November 2012. However, the Applicant discontinued his Application on 5^th November 2013 and the matter proceeded as an undefended hearing on 16^th December.

2. The Applicant is the Father of a boy called [X] Crawford who was born [in] 2005. The child lives with his mother, the Respondent.

3. In his Application, the Father sought orders:

   a)changing the child’s name to “[X] Hodge-Crawford”;

   b)providing that the child should live with him and spend defined time with the Mother; and

   c)authorising the Registrar of the Court to sign any documents necessary to effect the registration of the change of name application at the Registry of Births, Deaths and Marriages.

4. Curiously, the orders seeking the change of name were also sought as interim orders.

5. More relevantly, the Father sought interim orders requiring the Mother to submit to supervised chain of custody urinalysis, referred to as a “drug test”.

6. The Application was returnable on 3^rd December 2012. The Applicant was represented by a solicitor. The Respondent appeared unrepresented.

7. The Application was adjourned to 30^th January 2013. On that date, the Respondent filed a Response and was represented by a solicitor. The parties entered into interim parenting orders by consent.

8. The parties attended a Child Dispute Conference with a Family Consultant on 7^th February 2013. The Family Consultant recommended in her Memorandum to the Court that the Court should appoint an Independent Children’s Lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth). An Order to such effect was made on 11^th February 2013.

9. The parties attended a Child Inclusive Child Dispute Conference on 22^nd May 2013. No resolution was reached.

10. Interim Orders were made by consent on 30^th July 2013 providing that the child would spend time with the Father from after school on Thursday until the commencement of school on the following Monday morning and that the child would spend time with the Father each alternate Tuesday from after school until the start of school the following morning.

11. After a series of consent adjournments, the matter came back to Court for mention on 5^th November 2013. The Father’s solicitor, Ms Dadisho, told the Court that her client wished to discontinue his Application. He was granted leave to discontinue.

12. The Application was later, at the request of the Respondent, listed for undefended hearing on 16^th December 2013.     

Hearing

1. The Respondent relied on her Amended Response filed on 16^th December 2013 and her affidavit of 12^th December 2013. The Respondent gave short oral evidence. In her affidavit, the Mother deposed that since the Father withdrew from the proceedings he had not spent time with his son but he has apparently been attending the child’s school on a regular basis and has spent time with the child there. The Mother is concerned about this behaviour, as it is disruptive to the child.

2. The Mother deposed that:

   I am supportive of [X] spending some time with the father at Christmas time for a few hours, however I am unsure how this should occur considering what the father has been doing at [X]’s school since he withdrew from these family law proceedings.[1]

   [1] Affidavit of Ms Crawford 12.12.2013 at paragraph [12]

3. The Mother seeks an order for sole parental responsibility for the child, saying in her affidavit:

   Because the father has walked away from these proceedings about [X], it seems like he has walked away from [X]. I am therefore seeking to have sole parental responsibility of [X]; for [X] to live with me; and for [X] to spend time with his father as agreed between the father and me.[2]

   [2] Ibid at [25]

4. The Independent Children’s Lawyer neither supports nor opposes the Orders sought by the Mother.

Applications for Parenting Orders

1. Part VII of the Family Law Act 1975 deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

   a)ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

   b)protecting children from physical or psychological harm;

   c)ensuring that they receive adequate and proper parenting;

   d)ensuring that parents fulfil their duties and meet their responsibilities.  

2. The principles underlying those objects are set out in s.60B(2) and include(except when it is or would be contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents:

   b)Children’s right to spend time on a regular basis with, and communication on a regular basis with, both their parents and other people significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development; and

   d)Parents should agree about the future parenting of their children.

3. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.

4. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases or abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility.

5. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility, the Court is then required by s.65DAA to consider whether it is both in the child’s best interests and reasonably practicable to spend equal time with each parent, or, failing that, substantial and significant time with each parent.

6. All of these matters have been considered insofar as they are relevant.

Conclusions

1. It is an inescapable fact that the Father has chosen to discontinue his Application for parenting orders in respect of this child. It may not have been realistic for him to expect that the Court would have made an order for the child to live with him after the child has spent all of his life so far in the primary care of his mother. However, there appeared to have been plenty of scope for final orders providing that this child would spend a regular amount of time with him, perhaps up to the level of substantial and significant time. Had the proceedings continued, a Family Report may have offered a valuable insight, but the father chose to discontinue instead.

2. It is hard not to empathise with the frustration expressed by the Mother, where she describes at paragraph [25] of her affidavit her view that the Father has not only “walked away” from the proceedings but from the child himself. It is difficult to see how, in the circumstances, equal shared parental responsibility would work.

3. There appears to be no alternative but to find that equal shared parental responsibility would not be in the child’s best interests in the circumstances. It is clear that he should continue to live with his mother.

4. It is concerning that the Father has chosen not continue with the interim parents that had previously been arrived at by consent. Again, the Mother’s view that the Father’s time with the child should be as agreed between the parties appears difficult to challenge.

5. I note that the Independent Children’s Lawyer neither supports nor opposes the orders sought by the Mother.

6. I propose to make those orders.     

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 20 December 2013