JASON & JASON
[2016] FamCA 514
•23 June 2016
FAMILY COURT OF AUSTRALIA
| JASON & JASON | [2016] FamCA 514 |
| FAMILY LAW – CHILDREN – Final parenting – With whom the children live – With whom the children spend time – Parental responsibility – Best interests of the children – Where the mother has discontinued her participation in the proceedings – Where the father is the primary carer for the children – History of family violence and conflict– Where not satisfied of risk of sexual abuse – Benefit to the children of a meaningful relationship – Nature of the children’s relationships – Attitude to the responsibilities of parenthood – Practical difficulty – Parental capacities – Children to live with the father and spend time with the mother as agreed – Father to hold sole parental responsibility – Restraint on the mother applying for passports for the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC. |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Jason |
| RESPONDENT: | Ms Jason |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Robertson |
| FILE NUMBER: | PAC | 2530 | of | 2013 |
| DATE DELIVERED: | 23 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 10 February 2016, 13 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maddox |
| SOLICITOR FOR THE APPLICANT: | Low Doherty & Stratford |
| SOLICITOR FOR THE RESPONDENT: | Robert Stoyeff & Associates (13 April 2016) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
With the consent of the father and Independent Children’s Lawyer and on an undefended basis with respect to the Respondent Mother, the Applicant Father is to have sole parental responsibility for the children.
It is further ordered
That all parenting orders prior to 10 February 2016 be discharged.
That B born … 2010 and C … born … 2011 (“the children”) live with the father.
That the mother have liberal and flexible time to spend with and communicate with the children, as may be arranged between the parties from time to time.
That each party shall not denigrate the other in the presence of the children,
That each party will provide or communicate as to:
(a) Any change of address, telephone and other contact details;
(b) Any emergency or serious health issues concerning the children.
The father authorise the mother to obtain copies of all school reports, correspondence and all other school activities, functions, parent and teacher nights.
That the father authorise the school principal from time to time to allow the mother to attend the school on any school activities, functions, parent and teacher nights and to otherwise make such enquiries as to the progress of the children.
That the father be permitted to take the children on holidays to a place outside of the Commonwealth of Australia for a period of five (5) weeks per year.
That the father shall be solely entitled to obtain and do all acts and things necessary for the children to have valid Australian Passports and to renew their Passports immediately after expiry, the cost of which is to be the responsibility of the father.
That Ms Jason born … 1979 be restrained by injunction from commencing or proceeding with any application for a passport for the children B born … 2010 and C born … 2011 from the Department of Foreign Affairs of the Commonwealth of Australia or the Consulate or any other appropriate authority of any other country.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jason & Jason 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 2530 of 2013
| Mr Jason |
Applicant
And
| Ms Jason |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of two young boys, B, who is five, and C, who is four, the children of Mr Jason (“the father”) and Ms Jason (“the mother”).
The parents were married in 2010 and separated in July 2012.
The father commenced proceedings in the Federal Circuit Court of Australia in June 2013 and the proceedings were transferred to this Court in September 2013.
On 13 October 2015, the mother filed a Notice of Discontinuance.
The matter proceeded to undefended hearing on 10 February 2016 and final orders were made for the father to hold sole parental responsibility for the children. Judgment was reserved in respect of other parenting orders.
On 23 March 2016, the mother filed an Application in a Case seeking that “any final parenting orders made in the proceedings be stayed” and that “if no final parenting orders have been made, that the making of any final parenting orders in these proceedings be adjourned”. Upon hearing on 13 April 2016, the mother was present in Court and gave her legal representative instructions to withdraw her application, and the application was withdrawn and dismissed.
In addition to sole parental responsibility for the children, the father also seeks orders that the children live with the him, that the mother “have liberal and flexible time to spend time with and communicate with” the children as arranged between the parents, and specific orders in relation to non-denigration, provision of information between the parents and the mother’s participation in school events. The father also seeks travel orders and orders restraining the mother from applying for passports for the children.
The Independent Children’s Lawyer (“ICL”) supports the orders sought by the father.
Documents relied on
The father relied on the following documents at hearing:
·Further Amended Initiating Application filed 24 December 2015
·His Affidavit sworn 23 December 2015, filed 24 December 2015
·Documents produced on subpoena
In addition to the Family Report, Magellan Report[1] and documents produced on subpoena, the ICL also relied on the mother’s affidavit sworn on 16 July 2013 and filed 17 July 2013 to provide a context for the allegations, the family system and family consultant’s recommendations.
[1] The Magellan Program is a program in the Family Court of Australia developed to deal with cases involving serious allegations of physical or sexual child abuse. A Magellan Report is a report provided by the child protection authority describing its involvement with the family and current concerns regarding the children.
Background
The father, who is 49, was born in the United Kingdom and moved to Australia in 2005. The mother, who is 36, was born in Country X and moved to Australia to marry the father.
The parents met in 2008 online.
On 15 May 2010, the mother migrated to Australia with her child A, who was then 13 years of age, and the parents’ commenced cohabitation. The father’s child Y, who was then eight, also formed part of their household.
The parents were married in 2010 and their first child, B, was born in 2010.
The parents’ second child, C, was born in 2011.
On 2 July 2012, after an incident involving the parents and A, who was then 15, the police attended the family home. On the same day, a provisional Apprehended Domestic Violence Order (ADVO) was made for the protection of the father, A and Y against the mother. Under the order, the mother was restrained from going within 100m of the family home. The parents separated on the same date and the mother left the home. The children, in addition to A and Y, remained living with the father.
At around this time, the family engaged with the Brighter Futures program through FaCS.
Between separation and May 2013, the father organised for the children to spend day time with the mother.
In May 2013, the mother returned to live in the family home and shared the care of the children with the father. The father says that the mother refused to leave the home.
In June 2013, A travelled to Country X and continues to reside there.
On 3 September 2013, after an incident at the family home discussed further in the reasons below, the mother was charged with assault and a ADVO was made for the protection of the father. On 18 September, the father was also served with an ADVO for the protection of the mother. On 9 October 2013, the father consented to the ADVO for the mother’s protection without admissions and a final ADVO was also made for the father’s protection.
On the weekend of 13 to 15 September 2013, the mother left the home with the two children and was placed by Relationships Australia in a refuge motel. After an incident involving the mother and a reception staff member at the refuge the mother returned to the family home.
On 11 November 2013, interim property orders were made by consent for the sale of the family home and for the proceeds of sale to be distributed to the discharge of the mortgage, the payment of $30,000 to each of the parties and for the balance to be held in trust. Orders were also made for the children B and C to live with and spend time with the parents as agreed.
On 17 March 2014, interim parenting orders were made by consent for the children to live with each parent on a three to four day alternating basis.
The mother and father relocated to separate houses and on 1 April 2014, the family home was sold.
The father says that despite the interim parenting orders in place, while the children spent sporadic time with the mother in the afternoons and evenings they only spent overnight time with mother on around six occasions between March 2014 and early 2015. The father appears to have accommodated the mother’s requests to see the children at her convenience.
Between October 2014 and November 2014, the mother travelled to Country X.
On 30 January 2015, final property orders were made by consent.
After a mediation conference in April 2015, arrangements were made for the mother to spend time with the children each Saturday afternoon.
In August 2015, orders were made to regularise the children’s arrangements pending final hearing. In particular, orders were made for the parents to equally share parental responsibility, for the children to live with the father and to spend time with the mother each Saturday from 12noon to 5:00pm. Trial directions were also made on this date.
On 13 October 2015, the mother filed a Notice of Discontinuance.
In October 2015, the mother travelled to Country X after sending the father and ICL an email that she no longer “wish[es] to continue defending the case” and would be overseas for a “few months maybe till March”. The mother subsequently returned to Australia in December 2015.
It appears that the mother travelled to Country X again in early 2016.
On 10 February 2016, with appearances only by the father and ICL, I made orders that the father hold sole parental responsibility for the children and that the decision in relation to final parenting be otherwise reserved.
As previously noted, while judgment was reserved, on 23 March 2016, the mother filed an Application in a Case seeking “any final parenting orders made in the proceedings be stayed” and that “if no final parenting orders have been made, that the making of any final parenting orders in these proceedings be adjourned”. The mother’s application was heard on 13 April 2016, on which date the mother appeared in person and gave her legal representative instructions to withdraw this application, and the application was dismissed.
A
There were a number of reports received by FaCS and medical records in relation to the mother’s daughter, A. It was submitted on behalf of the father and ICL that A’s circumstances were relevant as a reflection on the mother’s parenting capacity and the reliability of the allegations made by A against the father.
In September 2011 it was reported that A had disclosed suicidal ideations and self-harm. A was then 14 and had been living in Australia for just over a year.
In April 2012 risk of significant harm reports were received by FaCS that A had overdosed on her medication and was subsequently admitted to the D Acute Adolescent Unit. The hospital records note:
Overdose on 9 seroquel tablets last evening precipitants in the day were conflict with her mother and conflict with a school friend.
… Major conflict between [A] and mother/stepfather… High level of conflict in the family leads to distress for [A], expresses high expectations from her mother to care for her younger brothers, and reports feeling excluded from parents care. Describes threats of conflict from stepfather acknowledges her own aggressive behaviour…
Parents attempts to manage the overdose @ home…Parents had to be “told” to take their daughter to E.D.
In May 2012 another risk of significant harm report was received that A had disclosed self-harm and had a suicide plan and identified a history of verbal abuse by the mother.
A was again admitted to hospital for an intentional overdose of 30 tablets in December 2012.
In June 2013, A travelled to Country X, and continues to reside in Country X. It is unknown who cares for her in Country X.
As discussed below, in July 2013, A wrote a letter including allegations that the father had attempted to inappropriately touch her, but due to A’s absence from Australia the allegations were unable to be investigated.
Allegations of family violence
There was significant conflict between the parents during the relationship and post-separation, with a number of reports made to police, FaCS and medical professionals.
It is also apparent that the children have been exposed to family violence. For example, in his affidavit, the father describes an incident in 2010 where he pulled the mother out of the car in the presence of Y.
In July 2011, FaCS received a report in relation to the mother alleging that the father had grabbed her around the ankles and twisted them and had hit her across the face while she was holding B. FaCS obtained information from the Police and after FaCS contacted the parents and discussed services with them, the matter was closed. Other agencies, such as a hospital, record complaints along similar lines about the father’s conduct. It is also recorded that the mother planned to stay with the father until she obtained permanent residency.
In September 2011, three reports were received by FaCS that the mother was psychologically and physically abusive towards the children, and that her behaviour was aggressive and erratic.
The father describes another incident in or around November 2011 where after an argument with the mother he:
…lost his temper, and grabbed her foot, twisting it, before regaining composure and walking away.
The police attended but after speaking to us both and to the girls, took no further action.
The father says that throughout 2011 and 2012 the mother was verbally abusive towards Y and A, which he reported to FaCS. He describes examples where the mother called Y or A “fat”, “lazy” or a “slut”.
On 1 July 2012, after an argument between the mother and the father, the mother called the police to the home. According to the police application for an ADVO, the mother was scheduled at Suburb E Hospital after stating she wanted to kill herself from all the stress she was experiencing. The mother was assessed by the Mental Health Team who determined that she did not have a mental health issue and the mother was released. Upon returning to the home on the same day, while holding the child C in one arm, the mother poked the father in the back three or four times with a kitchen knife. A called the police who then attended the home.
On 2 July 2012, the father attempted to take A and Y to Y’s mother’s home. The mother stood in front of the doorway to prevent them from leaving, striking A around the head and upper body several times and yelling verbal abuse. The mother struck A to prevent her from accessing a phone to call her therapist. The father then called the police who attended the home. A provisional ADVO was made on the same day for the protection of the father, A and Y, restraining the mother from going within 100m of the home. The application for an ADVO notes that “Police believe the [mother’s] behaviour is becoming more erratic and violent. This behaviour is upsetting her daughter [A] to the point she wants to self harm.” A final ADVO was made on 22 August 2012, which expired in February 2013.
Following the events in July 2012, the mother and father separated and the mother left the family home.
On 8 February 2013, the police attended the mother’s home. She alleged to police that during a changeover the father had entered her house, twisted her wrist and pushed her while she was holding C. The police interviewed the father who denied the allegations. They also independently interviewed Y, who was then 11, who denied that the father had assaulted the mother or entered her house.
In March 2013, the police records detail that the mother attended the home to spend time with the children. After spending time with the children, the father asked the mother to leave and the mother refused. The father threw the mother’s bag onto the footpath in the hope she would leave to recover it. The mother kicked the father in the leg, who fell to the ground. The father then dragged the mother out of the home and secured the front door. The mother then called the police. The police attended the home, and after “taking all the physical evidence into account and the versions supplied by both parties, as well as the [mother’] demeanour police were satisfied with the version given by the victim… Police are satisfied the [mother] was the aggressor in this matter.” No further action was taken by police.
On 3 September 2013, when the parents were living in the same house, the mother started pushing the father around the room and shouting, and grabbed the father’s cheeks hard with both hands. The father made a report to police after the children had gone to bed and the mother was charged with assault and an ADVO was made for the father’s protection.
The mother subsequently made an application for an ADVO for her protection, to which the father consented in the mandatory terms in October 2013.
On 4 December 2013, the mother was sentenced to s 10 bond for 18 months for the assault in September 2013.
Since early 2014, there have been no further report incidents of family violence. It may be inferred that the violence between the parents ceased when they were no longer living together.
I am satisfied that the parents had a very conflictual relationship to which the children were exposed. On the basis of the father’s evidence, police records and the mother’s conviction I am satisfied that the mother perpetrated family violence against the father. I am also satisfied that the father perpetrated family violence against the mother on at least one occasion, as on his own version of events on that occasion he grabbed and twisted the mother’s foot.
Allegations of sexual abuse and child pornography
The Magellan Report dated 5 November 2013 prepared by FaCS records that on 27 June 2013 a risk of significant harm report was received that the mother alleged the father had been touching A’s breasts and bottom. It was reported that the mother had reported to police and Community Services “last year” she had suspicions the father was in a sexual relationship with A.
In her affidavit the mother transcribes a letter said to have been written by A dated 3 July 2013. It is addressed to “whom it may concern” and contains allegations that the father had been “trying to touch [her]”, although she provides no details of specific incidents.
In July 2013, the police records note that A was in Country X and the investigation would be suspended.
In relation to these allegations the father simply states that he “maintain[s] that this allegation of sexual abuse, and all matters surrounding it are untrue” and that the mother had told him that A “never believed anything in the letter for one minute. She does not want you to hate her”.
It is also reported in the Magellan Report that on 4 September 2013 a risk of significant harm report was received by Community Services alleging that the mother had walked into B’s bedroom and found the father sitting on the floor masturbating in front of the child. JIRT[2] found that the allegations were not substantiated and concluded that “the mother had been providing inconsistent information in relation to the allegation”. It was noted that “the mother disclosing that she took her daughters (sic) psychotropic medication and due to this, … stated that she possibly hallucinated what she saw and reported it as the allegation.” B was also assessed to be “unable to participate in [an]…interview”.
[2] The Joint Investigation and Response Team, made up of officers from police and Community Services which investigates allegations of serious child abuse.
On 25 February 2014, the mother made a report to police that the father possessed child pornography. On that same date a search warrant was executed at his home and a number of electronic devices were seized.
The father annexes to his affidavit a letter sent by NSW Police to the Independent Children’s Lawyer that all devices had been examined, that no evidence of possession of child pornography was found and that the matter was now closed.
In my view, having regard to the context of the allegations, the findings of the JIRT and NSW Police investigations and the mother’s inconsistent actions in leaving the children with the father, I am satisfied that the father has not perpetrated sexual abuse on A or any of the children or possessed child pornography.
The mother’s health
The father tendered a number of documents relating to the mother’s health from 2011 and 2012. The hospital records indicate that the mother had a history of a brain lesion, and in January 2012 presented with pins and needles to the entire left side of her body for the past year. In late 2012 the mother reported that her brain lesion was not being treated and that she experienced continuing numbness, visual disturbance to her left eye and a left sided facial droop. She later reported that her leg occasionally went numb and she was unable to walk.
The mother attended a consultant neurologist in August 2012, who wrote to her General Practitioner that the mother’s “left sided symptoms…are almost certainly psychogenic” and that “trying to reassure [the mother] that her symptoms are most likely psychological and that nothing more can be done to sort out her brain spots is quite difficult”. The neurologist consultant concluded that “I think she needs a social worker and a counsellor more than a Neurologist”.
In November 2014, the mother attended another neurological specialist. It is recorded that a small lesion was observed and recommended that the mother be referred to a psychiatrist for her mental health problems.
In January 2012, the mother was referred by a General Practitioner to a psychologist under a mental health care plan for treatment of anxiety, depression and chronic pain. The mother attended four sessions until March 2012, when treatment ceased because the mother was “beginning to understand chronic pain and managing it” and because she had not attended her appointments.
In the Family Report dated 6 March 2014, the family consultant was of the opinion that the mother has reported a significant history of trauma and family loss and that the
…experience of trauma is recognised as having the potential for a significantly adverse impact on a person’s capacity as a parent. It may assist if [the mother] were to seek assessment with a psychiatrist…and follow any treatment recommendations arising from such as assessment.
In October 2014, a General Practitioner referred the mother to a psychologist under a mental health plan for treatment of anxiety and depression. It appears that the mother attended three sessions until March 2015. The mother’s current physical or mental health condition is unknown.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60cc(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
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”.
[3] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.
[4] (2007) Fam LR 518.
[5] [2006] FamCA 994.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The family consultant was of the opinion in the Family Report in March 2014 that it appeared that both children had established relationships with each of the parents.
The father is the children’s primary caregiver and under his proposed orders the children will continue to receive the benefit of an important and significant relationship with him.
The nature of the children’s relationship with the mother is less clear, and it appears that the children have spent sporadic time with her since 2014. Nevertheless, it is not disputed by the father that a significant relationship with the mother would benefit the children.
It was questioned whether a suite of orders which do not provide for the mother to have defined time with the children would support a meaningful relationship. However, given the mother’s unreliability and regular travel overseas, defined time is problematic. In the past there is no dispute that the father has accommodated the mother’s requests to see the children at her convenience. In my view an arrangement whereby the children spend time with the mother as agreed between the parents will facilitate the children receiving the benefit of a meaningful relationship with the mother in the circumstances.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
As discussed earlier in these reasons, the children have been exposed to conflict and violence between the parents. There have not been any reported incidents of family violence or conflict at changeovers or otherwise since 2014.
Further, as discussed earlier in my reasons, I am not satisfied there is a risk of harm arising from sexual abuse perpetrated by the father. Having regard to the context of the allegations, the findings of the JIRT and NSW Police investigations and the mother’s inconsistent actions in leaving the children with the father, I am satisfied that the father has not perpetrated sexual abuse or possessed child pornography.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The children are aged five and four. Given their young ages, they were not interviewed at the time of the Family Report and their views are not before the Court.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
In the opinion of the family consultant, both children had established relationships with each of their parents.
The father has been the children’s primary caregiver for many years, since the parents first separated in July 2012 and later when the mother returned to the family home. It can be assumed that he is their primary attachment figure.
Since the Family Report was written, the mother has left the home and only spent intermittent time with the children. She has also travelled overseas for extended periods of time. It may be inferred that the relationship with the young children is strained, although it was not suggested that the children do not have an important relationship with their mother.
The nature of the children’s relationships with the half-siblings is unknown.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
The father has had the primary care of the children since separation in July 2012. Since separation he has made all decisions in relation to education, health and “all other decisions as to the children”.
The mother has not taken the full opportunity to spend time with the children. Despite interim parenting orders in March 2014 providing for the children to live with each parent on a three to four day alternating basis, the children spent overnight with the mother on six occasions between March and June 2014 and otherwise spent day-time with the mother subject to her availability. After the mediation in April 2015, arrangements were made for the mother to spend time with the children on Saturdays from 12:30pm to 5:00pm. The mother complied with this arrangement until she went overseas for an extended period in October 2015.
In the mother’s email to the father and ICL sent on 9 October 2015 the mother agree to the father having “custody” for the children. In the mother discontinuing her participation in the proceedings, it is inferred that the mother does not wish to take the opportunity to make long-term decisions regarding the children.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The father has maintained the children while they are in his care. It is unknown whether the mother has fulfilled her obligation to maintain the children.
Likely effect of change in the children’s circumstances
The orders sought by the father and supported by the ICL would reflect the existing arrangements for the children.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
When the mother is in Australia, there is no practical difficulty or expense associated with the distance between the two households.
However, the mother has travelled overseas for long periods of time and appears to have been unreliable in maintaining a consistent regime of time with the children, which presents practical difficulties associated with orders that stipulate the mother’s time with the children.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
The history of the mother’s daughter A’s mental health and the records that “[p]arents had to be “told” to take their daughter to E.D.” when she overdosed while in the parents’ household raise some concerns about the parents’ capacities, particularly the mother’s.
There are also some concerns in relation to the mother’s mental health, discussed above, which appears to have some impact on her parenting capacity.
Further, the parents’ history of conflict and violence, to which the children were exposed, reflects negatively on the mother’s and father’s parenting capacities. In the opinion of the family consultant:
The history reported by both parents and through the material available under subpoena was more suggestive of poorly managed conflict and situational violence between [the father] and [the mother] than supporting concerns that either engaged in patterns of behaviour designed to endanger fear or significant harm for the other. It is of significant concern, however that neither parent has demonstrated any significant capacity to protect the children from their conflict. Poorly managed conflict is often associated with problems of emotion regulation which when occurring for parents can be associated with poorer outcomes in development and well-being for children, including critically, the children having their own poorly developed capacity to regulate their emotional state.
Nevertheless, in March 2014, the family consultant observed that both parents’ interactions seemed appropriate to the children’s development and there were indications that the children were able to use each parent as a source of comfort.
Since 2014, there have been no further reported incidents of family violence, which may suggest that the parents have prioritised the needs of the children over their own. To the father’s credit, he has prioritised the children’s needs and has facilitated the children spending time with the mother on short notice at her convenience.
The father appears to have cared well for the children’s physical needs since separation. In September 2013, a staff member at the children’s day care reported to Community Services that the father drops off and picks up the children, who were well-dressed, supplied and fed and that she had no concerns about the care of the children. The father has arranged for the children future education at the local primary school and before and after school care.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The father is of UK background and the mother is of Country X background.
The father proposes to take the children to visit the United Kingdom, where his family resides, from time to time for a period of no more than five weeks, in which time they may enjoy the culture and traditions of their UK family.
Little is known about the mother’s Country X background. It may be inferred that the children may enjoy their culture and traditions associated with the mother’s culture when spending time with her in Australia. As discussed later in these reasons, it is not proposed that the children spend time with the mother in Country X.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The father has demonstrated a positive attitude to the responsibilities of parenthood, providing the primary care for the children and making the long-term decisions for the children. He appears to have prioritised the benefit to the children in spending time with the mother over any acrimony he may feel towards her.
The mother has disengaged from the proceedings to determine the future parenting arrangements for the children.
Family violence, including any family violence order
This issue is discussed at length earlier in these Reasons. As discussed, I am satisfied that each parent perpetrated family violence against the other and the children were exposed to their conflict. ADVOs have been made for the protection of both the mother and the father.
There have been no further reported incidents of family violence since 2014, and the parent’s relationship appears to have settled since they moved to separate households. There was no suggestion that there has been conflict at the changeovers between the parents since 2014. There is no evidence to suggest that the children have continued to be exposed to family violence since the parents ceased living together.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The father’s proposed orders, which make no provision about the mother’s time with the children may lead to further proceedings. However, in circumstances where the mother has disengaged from the proceedings it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the child’s parenting arrangements.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[6] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter the father seeks sole parental responsibility, which is supported by the ICL.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
In circumstances where I am satisfied family violence has occurred, the presumption of equal shared parental responsibility does not apply.
Further, in circumstances where the father has been making the decisions for the children for some years, where the mother has disengaged from the proceedings, is absent from Australia on a regular basis and does not seek parental responsibility it is appropriate the father hold sole parental responsibility.
So far as the balance of the parenting orders are concerned, while it is appropriate the father holds sole parental responsibility, having regard to the mother’s continuing relationship with the children, it is in the best interests of the children for the mother to be authorised to engage with the children’s school.
Injunction: Passports
The father also seeks an order restraining the mother from commencing or proceeding with any application for a passport for either of the children in Australia or any other country. It was raised in the course of the hearing whether it would be more desirable to place the children on the Airport Watchlist. It is my understanding that the father did not wish the children to be placed on the Watchlist to allow the children to travel to visit their extended family in the United Kingdom.
The mother has little other connection to Australia, her daughter now lives in Country X and she has travelled to Country X for extended periods of time. In these circumstances there is significant risk that the children could be retained overseas. It is noted that Country X is not a signatory to the 1980 or 1996 Hague Conventions. If retained overseas the children would be separated from the father and home with little prospect of their timely return, to the detriment of the children. In my view, it is appropriate and just that an order be made as sought by the father.
Conclusion
The father has been the children’s primary carer since separation and is caring well for the children. The mother has disengaged from these proceedings to determine the future parenting arrangements for these children.
In considering each of the matters relating to the child’s best interests, I have attached particular weight to the benefit to the children of having a relationship with their parents, parental capacity, practical difficulties and the parents’ attitudes to the children and responsibilities of parenthood.
Having regard to all of the factors in relation to the best interests of the child, I am of the view that the orders proposed by the father and supported by the ICL are in the children’s best interest.
Accordingly, I make orders as sought by the father and supported by the ICL. The orders that I make are as set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 June 2016.
Legal Associate:
Date: 23 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Jurisdiction