HOPKINS & BRADEY

[2011] FamCA 235

FAMILY COURT OF AUSTRALIA

HOPKINS & BRADEY [2011] FamCA 235

FAMILY LAW – CHILDREN – Parental responsibility - undefended  hearing – evidence of family violence – where the family violence occurred in the presence of the child – where the mother was alcohol dependent – where the mother has taken steps to manage her alcohol dependence – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother – no order made in relation to child’s time with the father

FAMILY LAW – CHILDREN – where the father removed the child from school without the mother’s knowledge or consent – injunction made to restrain father from approaching any school attended by the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C(1), 61DA, 64B, 65AA

APPLICANT: Ms Hopkins

RESPONDENT: Mr Bradey

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: NCC 2969 of 2009

DATE DELIVERED: 7 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 15 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Denise Clark

COUNSEL FOR THE RESPONDENT: No appearance for or on behalf of the respondent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Peter Hamilton

Orders made 15 November 2010

1. I give leave to the parties and the Independent Children’s Lawyer to inspect subpoenas produced by Calgary Mater Hospital and New South Wales Police.

2. Orders 3, 4, 5, 6, 7, 8, 9, 10, 13, 17, 18, 19, 20, 21, 22 and 23 of the Orders dated 5 June 2007 in relation to the child B born … February 2001 are discharged.

3. The Applicant Mother Ms Hopkins has sole parental responsibility for the child.

4. The Respondent Father is restrained from approaching any school attended by the child.

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 these particulars are included in these orders.

6. I give the Independent Children’s Lawyer leave to make an oral application for costs.

7. The Independent Children’s Lawyer’s application is dismissed.

8. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2969  of 2009

Ms Hopkins

Applicant

And

Mr Bradey

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These proceedings concern parenting orders in relation to B, born … February 2001 (“the child”). The applicant in these proceedings is the mother, Ms Hopkins, born … July 1975 (“the mother”) and the respondent is the father, Mr Bradey, born … August 1975 (“the father”).

2. The parties were involved in proceedings before the Family Court in 2006, which resolved by consent on 5 June 2007. The mother initiated fresh proceedings in November 2009. These proceedings came before me on 15 November 2010 and I made final orders with reasons to follow. These are the reasons.

Proposal of the mother

1. In her Initiating Application filed on 20 November 2009 the mother seeks sole parental responsibility for the child, that the child lives with her and spends supervised time with the father no less than two hours per fortnight, with the mother facilitating delivery and collection of the child to and from time with the father.

2. In support of her application, the mother relies upon:

   a)Her affidavit filed on 20 November 2009;

   b)Her affidavit filed on 15 March 2010;

   c)Her affidavit filed 5 November 2010; and

   d)The affidavit of Ms C filed 15 November 2010.

Proposal of the father

1. The father filed a Response on 24 February 2010 seeking that the orders made by consent on 5 June 2007 continue.

2. Thereafter, the father has failed to participate in these proceedings. He has not filed any affidavit in support of the orders he seeks and failed to appear before the Court on a number of occasions, including the final hearing on 15 November 2010.  The hearing thus proceeded on an undefended basis.

Proposal of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer supports the proposal of the mother set out in her Initiating Application.

History

1. The parties commenced living together in mid-1998. During their relationship, the father was a chronic gambler and both parties were heavy drinkers.  On outings, they would frequent venues where they could both drink and the father could gamble. The mother admits she suffered from alcoholism during this time.

2. The parties’ relationship was marred by family violence perpetrated by the father against the mother. This violence continued after the parties separated.

3. When the mother was approximately three months pregnant, she attempted to end her relationship with the father. The father responded by threatening to kill her if she left.

4. When the mother was seven months pregnant, the father and the mother became embroiled in an argument during which the father pushed the mother onto the bed. He then grabbed the mother’s wrist and pulled her off the bed, causing the mother’s arm to hit the wall. 

5. The child was born in February 2001.

6. In about April 2001, an incident occurred which caused the parties to separate. The father wanted to gamble, and insisted the mother accompany him and leave the child with a neighbour. The mother refused to do so and told the father, “If you go I won’t be here when you get back.” The father left and, while he was gone, the mother packed her belongings with the intention of moving out of their home. The mother was still packing when the father returned. He punched the mother in the face, causing her nose to bleed. The father was subsequently charged with assault and an Apprehended Violence Order was granted against him. The father breached the AVO three times and on the third breach, was gaoled overnight.

7. Shortly following this incident, the parties separated.

8. After separation, the father continued to perpetrate family violence against the mother by threatening and verbally abusing her.

9. By arrangement between the parties, on or about 25 March 2006 the father was scheduled to spend time with the child while the mother went to work. The father did not arrive on time and so the child was left in the care of the maternal grandmother. The father later rang the mother while she was at work, asking for the child in a threatening manner. He continued to ring the mother’s workplace so persistently that her employer disconnected the phone for a period. Unable to reach the mother via the telephone, the father arrived at her workplace where he screamed and swore at her, intimidating her, her employer and the customers.

10. In 2006 the mother initiated the first set of proceedings in the Family Court. These proceedings were resolved when parties entered into consent orders on 5 June 2007 which provided that:

    a)The child would live with the mother (Order 1);

    b)The mother shall ensure the child resides within a 50km radius of the D Town Post Office (Order 2);

    c)The child would spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or, if Monday is a public holiday, the commencement of school on Tuesday; from the conclusion of school until 5:00pm every two out of three Thursdays in a three week cycle; and for half of each school holiday period (Order 3); and

    d)Changeover would occur at a nominated centre, with the parties to contact the centre and arrange a suitable changeover arrangement (Orders 8-10).

11. The parties were unable to contact Relationships Australia regarding the changeover arrangement as the centre had been flooded by the severe storms of June 2007. They agreed that changeover would take place at the McDonald’s restaurant in E Town instead.

12. On 7 November 2008 the father arrived at the mother’s home, uninvited. He was angry with the mother for ‘swapping’ his weekend time with the child and proceeded to verbally abuse the mother in the child’s presence. The following conversation took place:

    Father: “It’s not fucking happening. I am not swapping the weekend”.

    Mother: “It’s already been booked”.

    Father: “Fuck you, that’s your fucking problem”.

    Not wanting the child to hear any more of the father’s abuse, the mother shut the front door. On leaving the mother’s residence, the father damaged the mother’s car by scratching his keys along the side of the vehicle.

13. Following this incident, on 10 December 2008 an interim AVO was granted for the protection of the mother. The father was convicted on 29 June 2009 of maliciously destroying or damaging property and received a section 9 good behaviour bond which lasted for a period of 12 months.

14. The child spent time with the father in the December 2008 school holiday period and the mother reports two instances of neglect during this period. The first occurred when the father locked the child out of his home for about two hours. Unable to enter the home, the child ran to the paternal grandmother’s home.

15. The second occurred when the father locked the child in his bedroom for approximately two hours. When the child became thirsty and called out to the father for a drink, the father did not respond. Not knowing when he would be released from the bedroom, the child climbed out of the bedroom window and, returned to the mother.

16. The child has also run away from the father on a number of other occasions when spending time with him. Again, during a school holiday period, the child ran away from the father’s home in E Town and rode his bike, with no helmet and no shoes, to the mother’s house in F Town Concerned about the danger inherent in such an incident, the mother telephoned the father’s home and spoke with the paternal grandmother who, in answer to mother’s question as to why the child had run away said, “I don’t know, there’s nothing wrong.”

17. About two days after that incident, the child again spent time with the father. The mother received a telephone call from the father informing her that the child had run away. The mother did now know where the child was at this time but, on the paternal grandmother’s advice, drove around to try and locate the child. Some twenty minutes later the mother received news that the child had returned to the father’s home. 

18. On or about 18 October 2009, when the child was spending time with the father, the father rang the mother on her landline number. The following conversation took place:

    Father: “Are you on your own?”

    Mother: “What?”

    Father: “Is the fuckwit not there?”

    Mother: “What are you talking about?”

19. The mother terminated the call.  The father then rang the mother’s mobile, which her boyfriend Mr G answered for her. Mr G informed the mother that the father had telephoned to confirm which date the child was due to start school. After this call, the father twice rang the mother’s mobile phone.

20. Upon returning to the mother on the following day, being 19 October 2009, the child told her that he was aware of the father’s attempts to telephone her the previous night. This was because the father had “hold of [the child’s] wrist and he wouldn’t let [the child] go and he kept trying to ring [the mother].” He reported that the father had threatened to go to the mother’s home in the night and shoot her boyfriend while they were sleeping. The child was worried and upset about this threat, as was the mother.

21. Concerned about the father’s threatening behaviour and its impact on the child, the mother initiated the current proceedings.

22. On 10 February 2010 at approximately 2:55pm, the mother received a telephone call from the child’s school, notifying her that the father had removed the child from school.  The father kept the child overnight and returned him to school the following morning. The mother was distraught over this event.  Worried that the father may again remove the child from school without her consent, the mother collected the child at about 1:30pm. The mother’s fears were vindicated when, shortly after collecting the child, the school contacted the mother and informed her that the father had notified the school of his intention to collect the child at 2:00pm that day. Upon realising the mother had picked the child up from school, the father’s sister telephoned the mother and repeatedly asked, “Where the fuck are you?”

23. About a fortnight later, the mother received a text message from the father’s sister informing her that the father had again removed the child from school without the mother’s knowledge. This time, the father collected the child before classes had commenced. The following day, being a Friday, the mother made enquiries to ascertain whether the father had taken the child to school and was told he had not. The child was returned to the mother the following Monday afternoon.

24. The current proceedings came before the Court on 3 February 2010. The father, who had been served, did not appear and had not filed a Response. Consequently, on 3 February the Registrar directed the father to file and serve a Response and any supporting affidavits by 24 February 2010. The mother was directed to notify the father of the orders made and the possible consequences should he fail to comply, including that the matter may proceed on an undefended basis in his absence.

25. The father complied in part with the orders of 3 February 2010 by filing his Response on 24 February 2010, but no supporting affidavit.

26. When the matter was returned before the Court on 15 March 2010 the father was in attendance. Orders were again made for the father to file and serve any affidavits by 13 April 2010. In the interim, the father’s time with the child was suspended.

27. The father again failed to file and serve any supporting affidavits by the specified date, and on 20 April 2010 orders were made for him to file and serve all affidavits in response to interim proceedings no later than 9 July 2010.

28. By 24 August 2010 when the matter again came before the Court, the father still had not filed any affidavits in support of the orders sought in his Response. Nor did he attend on this occasion. Given the father’s repeated failure to file any supporting affidavits and his failure to appear in Court, the matter proceeded on an undefended basis and the following interim orders were made:

    a)Final orders of 5 June 2007 are suspended (Order 3.1);

    b)The child would live with the mother (Order 3.2), who would also have sole parental responsibility for the child (Order 3.3);

    c)The father would spend supervised time with the child for no less than two hours each fortnight (Order 3.4), but such time would commence only if the father provided written advice to the mother’s solicitor and the Independent Children’s Lawyer that he wished to take that opportunity to spend time with the child (Order 5). The mother deposes that the reason for this provision was that the father had indicated to her that he no longer wished to spend time with the child;

    d)Both parties were permitted to file and serve any further documents in relation to final orders sought by 1 November (Order 9);

    e)The father was granted leave to make an application in the event he wished to be heard in relation to these interim orders (Order 10); and

    f)The proceedings were listed for final hearing on an undefended basis on 15 November (Order 6).

29. On 25 August 2010, the mother’s solicitor caused a sealed copy of those orders to be served upon the father. Thus, the father was notified of his obligation to provide written advice to both the mother’s solicitor and the Independent Children’s Lawyer should he wish to commence spending time with the child. But, the mother has received no such notification from the father and, in fact, has had no contact with the father since the making of orders on 24 August 2010.  As such, the father has spent no time with the child in accordance with Court orders since at least March 2010. Further, the father has not made an application to be heard about those interim orders as he was permitted to do in accordance with Order 10.

30. On 1 and 3 September 2010, in contravention of the 24 August 2010 orders, the father attended the child’s school and spent time with the child before classes commenced. The mother’s solicitor sent a letter to the father in relation to this on 13 September 2010.  No response was received from him.

31. The mother swore an affidavit on 5 November 2010, a copy of which was sent to the father on 8 November 2010 by the mother’s solicitor. On 10 November 2010, the father contacted the office of the mother’s solicitor and told them “not to send any more of [the mother’s solicitor’s] garbage to me.”

32. In accordance with Order 6 made 24 August 2010, this matter proceeded to a final hearing on an undefended basis before me on 15 November 2010.

The mother’s circumstances

1. The mother admits to previous alcoholism and orders were made for her to attend upon the H Region Drug and Alcohol Services to address that issue in June 2007. The mother failed to comply with these orders. The reason being that she felt she did not need to continue with counselling as she had not consumed alcohol for a “lengthy period.” The mother last drank alcohol on 27 November 2006, before being admitted into the I Detoxification Centre on the same day. She was discharged on 4 December 2006.

2. The mother engaged with the J Service (“the Service”), a drug and alcohol counselling service. The mother was referred to the Service on 20 March 2006 and discharged on 11 July 2007. The file records show the mother’s contact with the Service involved 14 visits, three of which were counselling sessions, and seven telephone support calls. According to the mother’s counsellor, the mother’s visits were difficult to arrange due to the mother’s work commitments.

3. The mother’s counsellor felt the mother “actively engaged in counselling and appears to be making every attempt to improve the quality of life for both herself and her son”. Also, the mother “has expressed a high level of understanding risks involved and what is required for the safety and wellbeing of her child.” At no time, that the counsellor was aware, did the mother place her son at risk.

4. The mother has also attended Alcoholics Anonymous meetings on 18-20 occasions, on referral from her counsellor at the Service. She has not attended AA meetings for some time, however, the mother remains abstinent from all alcohol use. The mother’s abstinence is evidenced by blood tests carried out between 12 June 2007 and 8 January 2008 which show zero alcohol levels in the mother’s blood.

5. Absent any evidence to the contrary, I accept the mother’s evidence that she is abstinent from alcohol.

6. The mother undertook these blood tests for alcohol in the mistaken belief that this was what Order 20, made in June 2007, provided for. The order in fact provided that the mother was to undergo urine analysis for the detection of Antabuse, a drug which the mother continued taking for eight to nine months after the making of, and in accordance with, the June 2007 orders.

7. The mother has also attended a parenting after separation course and engaged with Kaleidoscope to assist B.

General law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

1. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part 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.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture;  and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

2. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

3. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

Primary considerations

Section 60CC(2)(a)

1. The child clearly has a meaningful relationship with the mother and will benefit from that relationship. The mother has been the child’s primary carer since birth, and evidence from both the mother and her former drug and alcohol counsellor shows the mother is a child-focused and loving parent.

2. Except for two brief occasions when the father visited the child at his school, the child has not spent time with the father since March 2010. The father has allegedly told the mother that he no longer seeks to spend time with the child and has failed to engage in the proceedings to re-establish a relationship with the child. The father also has an intensely negative attitude to the mother which is emotionally harmful to the child and may serve to undermine the child’s relationship with the mother, who is his primary carer and attachment figure. In these circumstances, the benefits of the child maintaining a relationship with the father are negated by the emotional harm which would arise from continuing such a relationship.

Section 60CC(2)(b)

1. ‘Family Violence’ is defined in the Act as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or reasonably to be apprehensive about, his or her personal well being or safety.” (s 4).

2. In this case there exists a need to protect the child from psychological harm arising from exposure to family violence.

3. There have been numerous instances, described above, where the father has perpetrated family violence upon the mother. He has verbally abused and intimidated the mother in the presence of the child and at her workplace in the presence of her employer. He has also damaged the mother’s property. When the child was seven weeks old, the father punched the mother in the face in the presence of the child, causing the mother’s nose to bleed. While the child will not have a memory of this physical violence, the father’s actions show he has no qualms about perpetrating violence in front of young children. Of particular concern is the father’s threats that he would shoot the mother’s partner while they slept, which threat was made directly to the child.

4. Such behaviour in the presence of a young child would no doubt cause that child much fear, distress and worry for the loved ones in his life. Exposure to such behaviour puts the child at risk of psychological harm and demonstrates the father’s lack of insight into how such threatening and abusive behaviour can negatively impact upon a child.  It renders the father a poor role model.

Additional considerations

Section 60CC(3)(a)

1. The child is nine years of age. He is too immature for his views to carry any significant weight in the determination of final parenting orders.

Section 60CC(3)(b)

1. The nature of the child’s relationship with the mother has been addressed above. There is nothing to add.

2. The child’s relationship with the father was marred by the father’s constant threats and negativity towards the mother and her partner. Other than on two occasions in September 2010 when the father visited the child briefly at school, the father has had no contact with the child since March 2010 and although orders were made on 24 August 2010 for the father to commence spending supervised time with the child, the father did not choose to do so. The father’s inaction suggests he does not seek to re-establish a relationship with the child. 

Section 60CC(3)(c), (4)

1. There is overlap between the considerations in s 60CC(3)(c) and s 60CC(4). They will be considered simultaneously.

2. On the evidence before the Court, it appears the mother is able and has been willing to facilitate a close and continuing relationship between the father and the child, and has made the child available to spend time with the father in accordance with Court orders.

3. The father has appeared much less willing and able to facilitate such a relationship between the mother and the child. This is evidenced by his threats to and denigration of the mother and her partner in the presence of the child.

Section 60CC(3)(d)

1. The child will remain living with the mother who has been his primary attachment figure from birth. He has not spent any regular time with the father for some time. The orders do not institute any substantial change in the child’s circumstances.

Section 60CC(3)(e)

1. Both parents reside in the Lake Macquarie area. There is no great practical difficulty or expense in the child maintaining contact with either parent while residing with the other.

Section 60CC(3)(f)

1. I am satisfied the mother is able to provide for the needs of the child, including his emotional and intellectual needs. The evidence shows the mother is a child-focussed parent. She sought counselling in order to better manage her alcohol dependence and “expressed a high level of understanding risks involved and what is required for the safety and wellbeing of her child.” That the mother has been willing to facilitate the child’s relationship with the father, demonstrates her concern for the emotional needs of the child, albeit somewhat naively.

2. There is nothing to indicate the father is not capable of providing for the child’s physical and intellectual needs. However, I am not satisfied that he is able to adequately provide for the child’s emotional needs. His intensely negative attitude towards the mother, which he openly makes known to the child, demonstrates the father’s lack of insight as to how his verbal abuse and threats towards the mother and her partner are detrimental to the child, and raises significant concerns about the father’s lack of sensitivity and capacity to provide for the child’s emotional needs.

Section 60CC(3)(g)

1. The mother admits to past alcohol dependence but the evidence shows she has taken steps to manage that. This issue has been considered above and there is nothing further to add.

2. The father was a chronic gambler during his relationship with the mother. However, there is no evidence to show what steps, if any, the father has taken to help manage this.

Section 60CC(3)(h)

1. Neither party identifies the child as Indigenous Australian.

Section 60CC(3)(i)

1. The mother’s attitude towards the responsibilities of parenthood has been addressed above and there is nothing further to add.

2. There were two occasions in which the father neglected to properly care for the child while the child was in his care. Once when the father locked the child out of his home, and the other when the father locked the child in his bedroom for two hours and failed to respond when the child asked the father for a drink. There were also times when the child ‘ran away’ from the father’s home, at times without the father’s knowledge. This neglect of the child reflects poorly on the father’s attitude towards the responsibilities of parenthood and may also indicate an inability to properly meet the physical needs of the child.

Section 60CC(3)(j)

1. Apart from the family violence which has already been considered in s 60CC(2)(b), there was also family violence between the parties prior to the birth of the child. When the mother was three months pregnant the father threatened to kill her after she attempted to end their relationship. When the mother was seven months pregnant the father pushed her onto the bed, then caused her to fall against the wall, after the parties became embroiled in an argument. Such physical violence toward the mother demonstrates the father’s disregard for the well being of the mother as well as that of the unborn child.

Section 60CC(3)(k)

1. An interim AVO was granted for the protection of the mother on 10 December 2008 after the father verbally abused the mother and maliciously damaged her car. There is no evidence a current AVO is in place.

Section 60CC(3)(l)

1. These orders, which allocate sole parental responsibility and residence of the child to the mother, are the least likely to lead to further proceedings. They preserve the parenting arrangements of the past eight months and are consistent with orders sought by the mother and also consistent with the father’s inaction which suggests he does not seek to re-establish a relationship with the child.

Conclusion

1. The presumption of equal shared parental responsibility does not apply due to the evidence of family violence perpetrated by the father against the mother    (s 61DA(2)). The orders thus provide for sole parental responsibility to be allocated to the mother.

2. Given the father’s lack of participation in these proceedings and his alleged statement that he no longer seeks to spend time with the child, no orders are made in relation to the father’s time with the child. Whether the child will spend time with the father is a decision to be made by the mother as an incidence of her sole parental responsibility.

3. The father has, on a number of occasions, removed the child from his school earlier than the designated finishing time, without the mother’s knowledge. This has greatly troubled the mother who then also removed the child from school earlier than the designated finishing time in order to prevent the father from taking the child without her consent. Such disruptions to the child’s education and his daily routine are not in the child’s best interests. Therefore the orders restrain the father from approaching any school attended by the child.

4. For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding eighty (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 April 2011.

Associate: 

Date:    7 April 2011