IDRESSA & IDRESSA

[2015] FamCA 112

FAMILY COURT OF AUSTRALIA

IDRESSA & IDRESSA [2015] FamCA 112

FAMILY LAW – CHILDREN – Undefended – where the father did not attend for the interview with the Family Consultant – where the father failed to attend at Court – Where appropriate for the matter to proceed to final hearing on an undefended basis – where the father has significant mental health issues – Where significant concern as to the children’s safety in the father’s care or should he have time with them – consideration as to the children’s best interests – Where appropriate for the mother to have sole parental responsibility, for the children to live with the mother and there be no order as to the children’s time with the father.

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

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Idressa

RESPONDENT: Ms Idressa

INDEPENDENT CHILDREN’S LAWYER: S P Nasti & Co Solicitors

FILE NUMBER: PAC 3540 of 2012

DATE DELIVERED: 27 February 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 30 January 2015

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Mr Forshaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Nasti

Orders

1. All previous orders be discharged.

2. That the mother have sole parental responsibility for the children B born … 2007, C born …2009 and D born … 2009.

3. That the children B born … 2007, C born … 2009 and D born … 2009 live with the mother.

4. That pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is restrained from attending at, entering upon, approaching or remaining on the residence or place of employment of the mother and that this Order is made for the personal protection of the mother and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.

5. That pursuant to s 68B of the Act the father is restrained from approaching, contacting, communicating with or being in the presence of and from attending at, entering upon approaching or remaining on the residence or place of education or care of the children B born … 2007, C born … 2009 and D born … 2009 and this Order is made for the personal protection of the said children and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act.

6. The mother may apply for a passport for the children B born … 2007, C born … 2009 and D born … 2009 without first obtaining the consent of the father.

7. The mother is permitted to take the children out of the Commonwealth of Australia on holidays notwithstanding that the consent of the father has not been obtained.

8. That until further order the father MR IDRESSA born … 1968, his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children B born … 2007, C born … 2009 and D born … 2009 from the Commonwealth of Australia until 31 December 2018.

9. AND IT IS REQUESTED that the Australian Federal Police give effect to the previous order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name/s on the Watchlist for the said period or until the Court orders its removal.

10. Liberty is granted to the mother to apply to the Court in relation to the expiration of Order 8 herein.

11. The appointment of the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Idressa & Idressa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3540 of 2012

Mr Idressa

Applicant

And

Ms Idressa

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the three children of Mr Idressa (‘the father’) and Ms Idressa (‘the mother’). The children are B, seven years old, and twins, C and D, five years old.

2. The parties married in 2007 in Country E. Shortly after their marriage, the father moved to Australia and the mother remained in Country E where the parties’ first child was born in 2007. The mother and the child then came to Australia in February 2009 to be with the father. The twins were born in 2009.

3. The father commenced proceedings on 15 August 2012 in the Federal Magistrates Court (as it then was). The matter was transferred to this Court on 6 June 2013. Recently the unrepresented father has disengaged from the proceedings, including not appearing for interview with the Family Report writer and not appearing at recent Court events.

4. The father was put on notice that the matter would proceed to hearing on an undefended basis if he or someone on his behalf failed to attend Court on 30 January 2015.

5. There was no appearance by or on behalf of the father on 30 January 2015. The matter was heard on an undefended basis.

The proceedings

1. In the father’s initiating application filed on 15 August 2012 he sought final orders that the parents have equal shared parental responsibility for the children, that the children live with him and that they spend time with the mother.

2. The mother’s response filed on 18 September 2012 sought final orders that the children live with the mother and spend each Saturday day time with the father, with changeover to be at F Town McDonalds, with the condition that the father is to take his prescribed medication.

3. On 5 November 2012, Federal Magistrate Harman (as he then was) made orders for the children to live with the mother, and orders were made for the father to spend time with the children at a contact centre, subject to a suitability assessment by the centre. However, contact did not commence at the contact centre until March 2013.

4. The matter was transferred to this Court on 6 June 2013.

5. Following the transfer to this Court, a Family Report was ordered. The Family report dated 19 September 2014 was released to the parties and their legal representatives on 7 November 2014. The father did not attend for interview with the Family Consultant.

6. On 24 November 2014, the matter was listed for a continuation of the Less Adversarial Trial. The applicant father did not appear. Further trial directions were made and the matter was listed for undefended hearing on 30 January 2015.

The relationship

1. The mother says she was the primary carer of the children, as the father worked long hours on shift work.

2. The mother alleges a few instances of violence prior to separation.

3. The mother also states that the father behaved oddly throughout the marriage, which she attributes to a mental illness of the father.

4. The mother completed a TAFE course in June 2012 and commenced working at a nursing home in July 2012, two weeks prior to separation.

5. The parties separated in July 2012 and were divorced on 19 October 2013.

6. Since separation the children have spent little time with their father as referred to below.

The father’s non-attendance

1. The father attended for his interview with the Family Consultant on 28 November 2013, for the preparation of the Children and Parenting Intake Assessment (CPIA) report dated 13 February 2014.

2. The father attended Court on 7 April 2014, and it was ordered he obtain a referral for a Mental Health Scheme for an assessment as recommended in the CPIA.

3. The father also attended Court on 17 June 2014 where a Family Report was ordered to be prepared. The father did not attend for his interview with the Family Consultant on 23 July 2014. However, he did appear in Court on 7 November 2014 when the Family Report was released to the parties and legal representatives.

4. The father did not appear at Court on 24 November 2014 when the matter was listed for further trial directions. Orders were made on that date for the mother’s solicitor to send a sealed copy of those orders to the father’s last known address and to inform him that the matter will be heard on an undefended basis if he did not appear or have someone appear on his behalf on the hearing date. A further order was made for the mother’s solicitor to send by SMS to the father a summary of the orders made on that day.

5. The mother’s solicitor filed an affidavit on 15 January 2015 setting out her compliance with these orders (Exh A).

6. The father did not appear and was not represented on 30 January 2015. The matter proceeded on an undefended basis.

7. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

   (3)…

8. In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the father’s involvement and leave uncertain the circumstances of the children.

The mother’s proposal

1. The respondent mother relies on her amended response and affidavit in support filed on 22 December 2014. She seeks final orders in summary as follows:

   a)That the mother have sole parental responsibility for the three children;

   b)That the children live with the mother;

   c)That the father is restrained from attending at or entering upon, approaching or remaining in the residence or place of employment of the mother and the place of residence or place of education of the children;

   d)That the mother have sole parental responsibility to apply for a passport for the children;

   e)That the mother is permitted to take the children overseas on holiday, regardless of the father’s consent;

   f)That the children remain on the Watchlist until 1 December 2016.

The father’s interaction with the children

1. The mother describes in her affidavit that upon commencing employment in July 2012, she returned home and smelt gas in the home on one occasion. She says the father blamed the children for turning on the oven, whilst he was carrying one of the children.

2. The mother complains that often after returning from leaving the children in the father’s care that the children were left with wet nappies and had not been bathed. The mother also says that the father did not cook for the children when she was out, rather that he would take them to a fast food restaurant if the mother had not previously cooked for the family.

3. The mother says that during their relationship the father would spend very little time with the children and would very often be in the computer room or on his bed.

Family violence and separation

1. The mother describes several instances of violence inflicted upon her by the father. The first of which was two weeks after her arrival in Australia, when B was 15 months old. She says the father pushed her and then hit her in the face with an open hand whist she was holding the child. The mother also describes the father belittling her following periods of the parties not speaking to each other.

2. The mother sought an AVO against the father but he threatened to divorce her, so she withdrew her application. The mother also describes instances when she was pregnant with the twins of the father accusing her of cheating and the father accusing her of trying to abort the pregnancy.

3. The mother recalls that in 2010 the father smacked her on the face, with his fingernail scratching her skin. The father’s brother and his wife asked her how she got the mark on her face and she did not tell them. She did not tell anyone how the mark occurred. She accepted the father’s apology a few days later.

4. The mother also describes that the father would regularly say that the children hated her and that since they had this surname, they were his children and not hers.

5. On Friday 27 July 2012 the mother was assaulted by the father when the father grabbed her neck with both hands very tightly. The mother says she was in pain and found it difficult to breathe. The father said to her, “call them, call them”. The mother then dialled 000. The father then took the phone off her and took a knife from the kitchen. He then began to hit the screen of the phone until it broke. The police attended and asked the mother to provide a statement of the events. She did not do so. She insisted on waiting until the father returned home to provide the statement so she was not accused of lying and also so the father could provide a statement as well. The police returned to the home a second time that day after a further incident and again the mother did not wish to lodge a complaint.

6. Earlier the police had been involved in domestic incidents on 18 December 2011 and 2 January 2012.

The father’s mental health

1. The mother outlines in her affidavit the father’s mental health as a real issue even during their marriage.

2. The mother describes the father’s erratic and peculiar behaviour. For example, the father insisted she not do her shopping at Suburb G, but at Suburb H, and that she was not to shop at certain stores in the area. The mother describes the father on one occasion insisting on seeing a different doctor to the usual family doctor and the father insisting the mother not use white blankets on the children.

3. In 2010, the mother received a telephone call from the father’s workplace asking where the father was. The mother had assumed that he had gone to work. The father was reported as a missing person in April 2010 after ceasing his medication. The father had flown to Country I and on to Country J and returned to Sydney on 6 April 2010. Police records (Exh H) reveal other incidents of aberrant and unusual behaviour by the father.

4. The mother says the father told her on his return that he planned to go to Country E, “but something told me to come back”.

5. Following this incident, the father arranged with family and friends to go to Country E two weeks later. He stayed there for three months. During the time the father was in Country E, the mother sent him money. The mother and children also moved into the father’s brother’s home for this period.

6. Following the father’s return from Country E he was admitted to F Town Hospital (Exh G) after being scheduled under the Mental Health Act (NSW) after “threatening his brother and being delusional about the mother”. He was discharged on Olanzapine anti-psychotic medication fifteen days after his admission for acute inpatient psychiatric care. His social worker referral after discharge described “chronic mental illness”. The clinical notes as to his admission are disturbing.

7. The father thereafter rented a room in a boarding house for about two months before returning to the home. The mother says that during this period the father said to her, “I can stay here for 10 years and come back when I want to come back” and “I have nothing to do with you – you are the cause of me being sick”.

The Children and Parents Issues Assessment

1. A Children and Parenting Issues Assessment (CPIA) was prepared by a Family Consultant dated 13 February 2014, as part of the Child Responsive Program. This memorandum was prepared based on interviews with each of the parents on 28 November 2013.

2. The mother complained of the father’s abusive, coercive and controlling behaviour.

3. The father revealed that he had previous engagement with mental health practitioners including at K Hospital and as an inpatient at L House. The father’s presentation was of significant concern to the report writer.

4. The Family Consultant identified the key issue being the father’s mental health. A Chapter 15 Report from a psychiatrist was recommended so as to determine any risk to the children from the father.

Interview with the mother

1. The mother stated that the younger two children do not refer to the father as ‘Daddy’ and she attributed this to the children losing their memories of him, but that the older child remembered him.

2. The mother identified that she held concerns about the father’s mental health and said that he did not comply with treatment. She also told the Family Consultant that she previously sought an order for him to have an assessment of his mental health. The mother said that although she did not want the children to spend time with the father, but that she did not think it would be safe for them if nobody were to “keep [an] eye on” the children. She added that the children are “so little, it worries me”.

3. The mother also provided information regarding the father’s behaviour, which the Family Consultant noted was consistent with the information provided in the Child Dispute Conference (CDC) and she indicated that the father’s behaviour escalated during the relationship.

4. The mother said that the father had accused the Contact Centre of being “racist” towards him and that the centre ceased offering sessions. This information is consistent with a letter sent by the M Contact Service to the Independent Children’s Lawyer (Exh F). The letter states that the father only attended one of the scheduled visits with the children and that he was one hour late. The letter also states that during the three occasions that he visited the centre that “he has made racist comments about white people are immoral and not as good as black men.” The letter was sent to the Independent Children’s Lawyer to advise that the centre would no longer be facilitating further contact sessions between the father and the children.

5. When the mother was asked whether she thought the father would harm the children she stated “I think yes, I think no”. She added that the father loved the children but that there was a difference when he was mentally well or unwell. The mother confirmed the information she provided at the CDC and reported that she held fears that the father may “kill me or the kids”. However, she also stated “I’m never scared of him shooting me or killing me”.

6. The mother also stated that the father had been sending her text messages saying that he was remarried, although the mother was uncertain whether that was correct or not.

7. The Family Consultant did not see the children as part of this assessment. This was largely due to the father’s presentation during the interview and the concerns arising from the interview. Further the father had stated a number of times that he was not going to participate further in the Child Responsive Program following his interview.

The Family Report

1. A Family Report (Exh C) was ordered to assist the Court.

2. The report is based on the Family Consultant’s interview with the mother and each of the children individually and an observation of the children and the mother on 23 July 2014. The father was not in attendance and provided a letter to the report writer to explain his absence.

3. The letter the father sent to the Family Consultant is attached to the Family Report. In summary it states that he was unwilling to come for another interview with the Family Consultant because he felt that he had already done this sufficiently in the interview for the CPIA, and he suggests that this Court should not be concerned with his children, as he believes they are not Australian children, but his own children. He stated that: “if you Australians are just looking for trouble I am not the right Person for that”, “who so ever is interested in making trouble against me, must stop it the children are my children, they are not Australian children”. He continued, “I am an Australian citizen and I understand the law, and you people the Australian must stop playing race against me”, “I am just a very handsome Person, with amazing strong out look, and I am enjoying my handsomeness with awesome personality”. He attached a letter from Dr N, a consulting psychiatrist and psychotherapist. The letter concludes that in the doctor’s opinion, there is “no evidence to suggest that he is unwell. Based on today’s presentation I am under [the] impression that Mr Idressa is not [a] mentally ill person under the meaning of the Mental Health Act 2007”.

1. The Family Consultant identified at the start of her report the issues in dispute in relation to the children. The issues were:

   a)The father’s mental health;

   b)Whether the children are at risk of harm in the father’s care;

   c)The most appropriate arrangements for parental responsibility;

   d)Allegations of family violence;

   e)The most appropriate arrangements for the children to spend time with the father (if any); and

   f)The mother’s willingness and ability to appropriately facilitate and encourage the children having a relationship with the father.

2. The mother described the eldest child as very intelligent and that he asks questions, “wants to know why”. She added he was quick to socialise and is “really helpful”, and that he was doing “really, really well” at school.

3. The mother described D as a “little bit loud” and clarified that he cried about “any little thing”. She added that he was very caring and very good at socialising and reported no concerns in relation to his progress or development.

4. The mother described C as a little bit quiet and really intelligent. She added that the child’s speech has been improving and reported that when C did not feel like “pushing” herself in relation to her speech, she did not. The mother reported that C was not currently attending speech therapy but that her speech would be checked prior to her commencing school. She also added that C was sometimes scared to speak.

5. The mother stated that it was in the children’s best interests for her to have sole parental responsibility, as the father did not talk to her. The mother indicated that there was currently no communication between her and the father. She believed that although they did not need to be friends, that they should be able to communicate about the children, however she believed the father disagreed about their need to communicate. The mother reported that she had contacted the father as the older child wished to speak to him and that the father responded by threatening to contact the Police. The mother indicated that this occurred one month prior to the interview with the Family Consultant.

6. The mother said that she limited the amount of identifying material available in relation to her concerns about the father identifying where she and the children were living and where the children attend school. She gave an example of changing her privacy settings on Facebook.

Interviews with the children

1. The Family Consultant observed that the eldest child, B, presented as somewhat reserved but willing to engage in interview. He identified that his family was the mother, D, C and himself. When asked about the father, the child said he “doesn’t live with us anymore”. The child stated that he “came to a place” to see his father and that because both the mother and father wanted to keep the children, the father said “fine” and “went away”. The child indicated that he didn’t want to go to this place anymore, attributing this to the father’s non-attendance at the contact centre.

2. B indicated that he was “a little bit sad” about not seeing his father and said that he “really wanted to live with my dad”. He clarified that he wanted the mother and father to reconcile and for him to live with both parents and his siblings.

3. B spoke positively about the mother. He stated a negative attribute of the mother was that, at times, she could be “a bit mean and angry” when he “make[s] accidents”. He used an example of when he hit the younger children and that the mother smacked him on these occasions. B said that he felt sad when the mother smacked him.

4. B stated that he would like to see the father and attributed this to the father hugging him and his siblings when they saw him. He said that he would feel “really sad and I might cry” if it were determined that he spend no time with the father. B indicated enthusiastically that he would like to have telephone calls with the father, if he were unable to spend time with him.

5. The Family Consultant observed the child D to have a limited capacity to engage with the interview, noting that he provided disjointed and confused narratives and that he frequently moved around the room during the interview. When D was asked about his father, he replied with “I don’t have a Dad” and denied that he ever had one.

6. D was able to provide a brief narrative about the father giving him bananas and watching television. The Family Consultant believed the child was referring to time spent with the father at the Contact Centre and stated that he did not see the father anymore and that the mother did not take him anymore.

7. D reported that the mother got angry and hit him when he was naughty. He then described himself as “sad” when this occurred. However he went on to say that this was because he wanted a police car toy. D said that “my Dad don’t hit me” and reported that he was “good” when with the father.

8. Following this, the Family Consultant noted that D appeared to be disengaged and commenced walking around the room and moving furniture. The Family Consultant was unable to further engage the child in conversation.

9. The Family Consultant noted that the child C appeared to have significant “speech delay, with the majority of her speech indistinct and unable to be understood”, “she was therefore unable to be meaningfully interviewed”. During this attempt, it was noted that C was willing to engage in the interview process and was attempting to communicate with the Family Consultant. C appeared to become frustrated regarding her communication difficulties and ultimately started miming in an attempt to make herself understood.

The Family Consultant’s conclusions

1. It was concluded that the children and the mother have positive and established relationships. The children’s relationships with the mother during observation appeared generally consistent with the information the children provided in their limited interviews.

2. The mother demonstrated an ability to engage with the children in a child-focused manner that was sensitive and responsive. B and D identified in their interviews that the mother used physical discipline on the children. The Family Consultant concluded that it is unlikely to be in the children’s best interests for the mother to use physical chastisement in favour of other effective non-physical means of behaviour management.

3. The child C presented with significant speech delay, which is likely to have a detrimental impact on her performance, peer relationships and ability to adjust to attending school in 2015. The observed speech delay in the interview with the child was inconsistent with the mother’s account of her speech delay. The Family Consultant raises concerns about the possibility of the mother minimising the extent of the child’s speech difficulties or having a limited insight into the extent of her difficulties.

4. The Family Consultant recommended that the speech therapist records be subpoenaed to identify whether or not the mother had complied with recommended treatment for the child.

5. The Family Consultant identified that there was no information obtained to suggest that any of the children should not continue to live with the mother.

6. The Family Consultant was unable to assess the children’s relationships with the father due to his non-attendance. It was noted that although B and D indicated a recollection of the father, they did not present as having established relationships with him. The Family Consultant concluded that this was consistent with the children’s ages and developmental stages at the time of separation and the very limited time that they have spent with the father following separation and that the children’s ability to maintain a meaningful relationship with the father in the future is depends on the mother’s willingness to appropriately support the children having a relationship with the father, and also on the father’s parenting capacity.

7. The Family Consultant concluded that there are limitations to the mother’s capacity to tolerate the children spending time with and having a relationship with the father. It was noted that this may have a detrimental impact on the children if they were to spend time with the father, and may result in the children experiencing anxiety or other emotional difficulties.

8. The Family Consultant concluded that the father’s non-attendance at the Contact Centre raised concerns regarding his understanding of the children’s needs and his ability to prioritise their needs above his own. The Family Consultant concluded that the father’s presentation at the time of his earlier interview, information contained in correspondence to the Family Consultant and information contained in affidavits filed by him are of concern with the father appearing to be fixated on themes of persecution by the Court, the Australian people and the Police.

9. The Family Consultant concluded that the father’s presentation at interview would cause the children to experience his behaviour as confusing, unpredictable and potentially frightening, even if this behaviour were not directed towards them.

10. A central issue in this matter is the father’s mental health. The Family Consultant notes that the father denies being diagnosed with “any ongoing mental health issue”. It is noted that material from F Town Hospital notes the father’s history of mental/psychotic illness has had a significant impact on his functioning, and this raises concerns about his compliance with treatment.

11. The Family Consultant notes that it would be beneficial to the Court for clarification on the father’s mental health and if so, the nature of his diagnosis. This however has not been able to be achieved.

12. In regards to the allegations of family violence raised by the mother. The Family Consultant concluded that the mother’s account and information obtained under subpoena from F Town Hospital suggest that the children have been exposed to incidents of family violence. It is recommended by the Family Consultant for the mother to enrol and complete a program for parents who have experienced family violence.

13. The Family Consultant recommended that if the Court orders for the children to spend time with the father, it is recommended that that time occur at a Contact Centre, in order to provide the children facilitated opportunities to build relationships with the father.

14. The Family Consultant observed that there is no communication between the parties and concluded that it is thus unclear how they would be able to exercise equal shared parental responsibility. Therefore, the Family Consultant recommended that the mother have sole parental responsibility for the children. It is also recommended that the father be provided with information regarding the children’s school reports. However, this needs to be considered with the father knowing the children’s whereabouts and being satisfied that he would not pose a risk of harm to the children.

The issues for determination

1. The primary issue for determination in this case is what orders should be made in the best interests of these children.

2. The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode provided a “framework” as to how applications for parenting orders are to be determined.

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. The objects of Part VII are to ensure that the best interests of the children are met by both parents having a meaningful relationship with the child, that the child is protected from physical or psychological harm, that they receive adequate and proper parenting, and that parents fulfil their duties and meet their parental responsibilities.

4. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to have regard to the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the court is to take into account in determining what is in the child’s best interests.

The presumption of equal shared parental responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

2. The presumption does not apply in respect of final proceedings where:

   a)There are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence [s 61DA(2)];

   b)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

3. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time to substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

4. It is the submission of the Independent Children’s Lawyer that in this matter the presumption does not apply having regard to the children’s best interests.

Section 60CC considerations

The primary considerations: s 60CC(2)

1. These proceedings were commenced after recent amendments to the Act.

2. The question of protection under section 60CC(2)(b) is to be given greater weight.

Benefit of a meaningful relationship with both parents

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. It is clear that particularly B and D seek to see the father, and thus would benefit from having a “meaningful relationship” with the father. However, this is provided that the children are protected from any harm to which they may be exposed to in the father’s care, particularly as a result of his mental health issues.

3. The children were of tender age at the time of separation of the parties. The elder child was not yet aged five, and the twins were only two years old. The children have also spent very little time with the father since separation, and mainly in a supervised environment.

4. There is no evidence before the Court to suggest that the father would be willing to take up the opportunity to spend time with his children or to communicate with them. The father was the applicant in these proceedings and has since disengaged, commencing with his non-attendance for interview with the Family Consultant. Any relationship with the father would be problematic and present a risk to the children.

5. A continuation of the mother’s primary care of the children is to be seen as essential for the children. This relationship is valuable to the children in all respects.

The need to protect the child from harm

1. This primary consideration is the crux of this matter in respect of the father’s mental health issues and the risk of harm this poses for the three children.

2. Overwhelmingly the determination of this matter rests on protective concerns for the children. This consideration is strongly indicative of there being no time between the father and the children in his uncertain mental health circumstances.

Additional relevant considerations: s 60CC(3)

a.        Views and maturity of the child

1. The eldest child B is seven years old and given his interview with the Family Consultant it was clear the child had a memory of his father, albeit limited. The child D gave little coherence during his interview with the Family Consultant. The Family Consultant reported that the child C was unable to be meaningfully interviewed, and thus her views are unknown.

2. Given the children’s ages and lack of maturity, no weight shall be given to the children’s views.

b.        Nature of the children’s relationship with their parents and other significant persons

1. The children clearly have a primary attachment to the mother and this should be continued.

2. The children’s relationship with the father has been considered above. It is problematic and presents as an unacceptable risk to the children.

c.        The extent to which each of the parents has failed to…. take opportunities to communicate with the child

1. The mother has been the children’s primary carer. The father has removed himself from the children’s lives.

ca.      The extent to which each of the parents has fulfilled or failed to fulfil, the parent’s obligations to maintain the child

1. The mother has undertaken this task after separation without assistance from the father.

d.        The likely effect of any change in the child’s circumstances

1. There is no change contemplated to the children’s present circumstances.

e.        Practical difficulty and expense of a child spending time with and communicating with a parent

1. This is not a relevant consideration for the reasons referred to above.

f.         The capacity of each of the child’s parents

1. The mother in difficult circumstances has demonstrated an appropriate capacity in this regard.

2. The father’s capacity is diminished by mental health issues to the extent that any time with the children may represent a risk to them.

g.        Maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of their parents and any other characteristics of the children that the court thinks are relevant

1. The children are young and dependent on the mother. The children have a Country E cultural background and it is to be inferred they will learn of that culture from the mother as appropriate.

1. The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents

1. This has been touched on in the discussion above. The mother has demonstrated an appropriate attitude in all respects. The father has not.

j.         Any family violence involving the child or a member of the child’s family

1. The father has perpetrated violence on the mother and children as referred to above. It is significant and involves physical violence, coercive and controlling behaviour and psychological abuse.

k.        Any family violence order that applies to the child or a member of the child’s family

1. There is no current order in place.

l.         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

1. The circumstances of the children need to be clarified. It is appropriate to make final orders.

m.       Any other fact of circumstances that the court thinks is relevant

1. Not applicable.

Parental responsibility

1. The father has perpetrated family violence on the mother and children as referred to above. He has otherwise failed to engage in the children’s lives and these proceedings.

2. The application of the presumption is not for the reasons set out above in the child’s best interests. The mother will have sole parental responsibility.

3. As a consequence the court is not required to consider section 65DAA of the Act and whether equal or substantial and significant time is in the child’s best interests and reasonably practicable.

1. The court is satisfied that the orders sought by the mother (Exh B) are in all of the circumstances in the best interests of the child.

2. Orders will be made accordingly.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 February 2015.

Associate: 

Date:  27 February 2015