KEENE & SELBY
[2015] FCCA 1428
•1 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEENE & SELBY | [2015] FCCA 1428 |
| Catchwords: FAMILY LAW – Parenting – where the proceedings involve competing applications for parental responsibility – where the father is incarcerated following a conviction for murder – where neither party has sought any order with respect to time and communication between the child and the father – mother to have sole parental responsibility for the child. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 65DAC, 65Y, 69ZX |
| Applicant: | MS KEENE |
| Respondent: | MR SELBY |
| File Number: | PAC 4818 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 1 April 2015 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
ORDERS
Discharge all prior parenting Orders with respect to the child [X] born [omitted] 2007.
[X] shall live with her mother Ms Keene.
Ms Keene shall have sole parental responsibility for [X].
IT IS NOTED that the above Order is intended to provide for and invest sole parental responsibility in Ms Keene for both the purposes of the Family Law Act 1975 and section 11 of Australian Passports Act 2005.
Dispense with the need for Ms Keene to seek or obtain the signature or consent of Mr Selby for the purpose of applying for and obtaining a passport for [X].
Request that the appropriate officer of the Department of Immigration and Border Control provide such assistance as is necessary to expeditiously process any application for a passport made by
Ms Keene pursuant to the above Orders and to issue a passport for [X] as soon as practicable after receipt of such application.
Pursuant to section 65Y of the Family Law Act 1975, Ms Keene shall be and is hereby authorised to remove [X] from the Commonwealth of Australia for the purpose of overseas travel at such times, for such periods and for such purposes as she may desire from time to time.
Ms Keene shall ensure that she has provided to Mr Selby at all times a postal address by which Mr Selby can communicate with Ms Keene and or [X].
IT IS NOTED that neither party has sought any Order with respect to time or communication between [X] and her father and further:
(a)No Order is made such as would give rise to an inference that the parents have for the purpose of section 11 of the Australian Passports Act 2005 joint parental responsibility;
(b)Both parties have indicated to the Court their willingness and desire that Mr Selby be able to forward letters, cards and gifts for [X], care of Ms Keene or her parents.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Pursuant to S.65DA(2) and S.62B, 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.
IT IS NOTED that publication of this judgment under the pseudonym Keene & Selby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 4818 of 2014
| MS KEENE |
Applicant
And
| MR SELBY |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing Applications regarding parental responsibility for a young child, [X], born [omitted] 2007. [X] will shortly turn eight years of age.
The parties to the proceedings are [X]’s mother, Ms Keene, who is the Applicant, and her father, Mr Selby, who is the Respondent.
Material considered in dealing with the proceedings today
I have read and considered each of the following documents.
In the case of Ms Keene I have read and considered:
a)Her Initiating Application filed 9 October 2014;
b)Her Affidavit filed 9 October 2014;
c)A further Affidavit filed 3 November 2014; and
d)An Affidavit filed 9 March 2015.
In the case of Mr Selby I have read and considered each of the following documents:
a)His Response filed 18 November 2014;
b)An Affidavit filed 18 November 2014; and
c)An Affidavit filed 9 March 2015.
It must be observed from the outset that Mr Selby and Ms Keene are each self-represented before the Court today. That I accept creates some disadvantage and difficulty for each of them. Mr Selby is further disadvantaged in that he attends the proceedings today by telephone, being an inmate at the [omitted] Correctional Centre, Western Australia.
It would appear that the sentence which Mr Selby is presently serving follows a conviction for murder. Mr Selby will not be eligible for parole until 2029 having been sentenced to a non-parole period of 17 years and his sentence having been taken to have commenced from the date of his arrest, at which time he was refused bail, that being in July 2012. Accordingly, it is abundantly clear that [X] will be well and truly an adult by the time of Mr Selby’s release.
I accept that litigants in person experience significant difficulty conducting their affairs before the Court. They do not have legal training and experience and the matter is dealt with in a Court environment, which by and of itself is inherently formal and intimidating. Whilst the Federal Circuit Court of Australia is required to operate as informally as possible I accept that this would not greatly ameliorate the difficulties that either party faces, particularly
Mr Selby’s incarceration and without the ability to communicate with the outside world at times and by means of his choosing. However, the matter has proceeded on that basis and there is nothing that can be done by the Court to provide representation or assistance to these parties. It has not been possible to arrange attendance by video link.
Issues in Dispute
The issues that are in dispute between the parties are, on their face, limited. They are, however, significant issues.
By her Application initiating proceedings, Ms Keene has sought Orders in the following terms:
1. The mother has full parental responsibility and full parental care.
2. The father not be able to put the child on the airport watch list.
3. That the mother not need the father’s signature or permission for anything pertaining to the child including but not limited to passport application, schooling, medical or name changes.
The father, by his Response, has sought relief in the following terms:
1. That I & the mother of the child have shared custody.
Whilst custody is not terminology used under the Family Law Act 1975 (Cth) at this point, I have explored and clarified with Mr Selby that what is intended by him is, by reference to the terminology used in many American states, joint custody as opposed to joint physical custody, i.e. the ability or right to continue to be involved in decision-making. Accordingly, it is clear that the parties are at odds as to whether parental responsibly will be allocated solely to Ms Keene or equally shared between the parents.
Mr Selby also seeks relief in the following terms:
2) That the mother still needs father’s signature & permission for documents including passport and name changing.
3) That the mother has never requested for the father’s signature for schooling, medical, etcetera.
Whilst the latter is not an Order as much as a submission it is clear that Mr Selby feels that he has not been consulted by Ms Keene in the past and he seeks to remedy this for the future.
The issues are limited in that neither party seeks, at this point in time, clear or specific Orders with respect to communication between
Mr Selby and young [X].
What is clear is that Mr Selby has been corresponding, or attempting to correspond, with Ms Keene and with [X]. It would appear that the address to which he has been writing, or at least one of the addresses to which he has been writing, has been inaccurate. That has been remedied and there is no objection by Ms Keene to an Order that she ensure that Mr Selby at all times has a postal address to which he can write to her and through her to [X]. The Court is not invited nor moved to make any further or more specific Order with respect to time and communication.
Mr Selby, to his credit, has been clear that he accepts that at this point in his daughter’s life, with there having been little time and communication between he and she and no time and communication on a face-to-face basis for some years that things must hasten slowly.
Mr Selby desires to continue to write to [X] and Ms Keene, to her credit, has not expressed any objection to that being so, subject to her preference that correspondence be addressed to her and to be passed on to or shared with [X] as she considers appropriate, rather than addressed specifically to [X]. The possibility exists in the future of communication by telephone or Skype and whilst no Order is pressed, that is a matter that neither party has a closed mind with respect to.
The determination I must make today is confined to the allocation of parental responsibility and whether an Order is made that [X] live with her mother. Clearly, the latter Order is irresistible. [X] cannot live with her father in light of his incarceration. Accordingly, that Order will ultimately be made, although the reasons to be given hereafter will explore both issues as they are somewhat connected.
Evidence
I have read and considered each of the documents identified above, and I have heard brief submissions by each of the parties. Ms Keene has undertaken a very brief cross-examination of Mr Selby, confined eruditely so, to the issue in dispute regarding the practicality of communication and past communication.
I do not propose to recite all of the evidence. It is contained within the documents that have been read and considered. The most substantial of those Affidavits is the Affidavit of Ms Keene, filed on 9 March 2015. It makes clear, as have the earlier Affidavits filed by Ms Keene, that there are existing Orders in relation to [X], being Orders made by consent by the Local Court, [omitted], on 6 August 2008. It would not appear that time arrangements have ever operated in any meaningful fashion as provided by those Orders, although the balance of the Orders are of some relevance to aspects of the matter.
Firstly, an Order was made by consent and on a final basis that [X] would reside with her mother. Whilst the terminology used within the Order is not that contained within the Act, it is clear that at the time that Order was made Mr Selby gave his consent. There is no reason for me to challenge that arrangement. An Order is sought by Ms Keene that [X] live with her and I am satisfied that the Order can be made by consent as it is not challenged by Mr Selby, could not be, and is already an Order in operation.
Secondly, the Orders made by the Local Court provided for the parties to have equal shared parental responsibility. Thus, that portion of the Application must be heard and determined and that is the purpose of this hearing.
Ms Keene makes clear that the time that has occurred between [X] and her father since [X]’s birth and certainly since the separation of these parties (when [X] was about six months of age), has been minimal. Since 2008 Ms Keene asserts that there have been seven occasions upon which [X] has seen her father and that each of those occasions were brief.
Ms Keene’s Affidavit material suggests that there were some concerns and difficulties arising from at least one of those periods, and as a consequence of which on 30 September 2008 and on the Application of Ms Keene or Officers of Police on her behalf, an Apprehended Domestic Violence Order was made. That Order imposed prohibitions upon Mr Selby, albeit in the statutory terms, together with a provision that there be no approach towards or contact with Ms Keene, save as permitted by an Order under the Family Law Act 1975 as to counselling, conciliation or mediation. There is no suggestion of breach of that Order.
Also annexed to Ms Keene’s material is what would appear from the body of the Affidavit to comprise the totality of email communication that occurred between the parties from October 2008 until February 2012. It is to be noted that from July 2012 Mr Selby has been incarcerated and has not been in a position to access that form of communication.
The emails that had passed between the parties during that period were limited and whilst not overtly impolite, were somewhat ineffective in resolving issues or disputes between them as and when they arose. Perhaps the most significant of those relates to a proposed overseas trip by Ms Keene and [X] in 2011.
At that time a number of emails passed between the parties concluding with emails in February of 2011. The purpose of those emails was for Ms Keene to seek Mr Selby’s execution of a Passport Application for [X] so that she and her mother could travel on a cruise which took them outside of the maritime borders of the Commonwealth of Australia.
Mr Selby did not provide his consent and as a consequence and as
Ms Keene has submitted that [X] was deprived of that opportunity. That would appear consistent with that noted in Mr Selby’s Response as being one of the few occasions, if not the only occasion, when there has been an active attempt by these parties to discuss and negotiate any arrangement regarding [X]’s future.
That is not to suggest, for one moment, that Mr Selby has an active disinterest in [X]’s future. Far from it. What is made clear from the material filed by Mr Selby is that, until quite recently and until well after his incarceration, he had not been, as it were, in a good place. As an unintended but beneficial consequence of his incarceration Mr Selby is now receiving the assistance of drug and alcohol counselling and treatment for his mental illness which he so badly required prior to his offending behaviour.
Annexed to the mother’s initial Affidavit filed 9 October 2014, is a copy of the reasons delivered by Hall J of the Supreme Court of Western Australia detailing the father’s sentencing. What is clear from those reasons, which I am satisfied are properly before the Court and could be relied upon by reference to section 69ZX(3), is that the murder for which the father was convicted had included a reference to the father’s emotional state broadly and in particular, with respect to young [X]. It suggests, for example, that whilst sitting with the victim of the offence that “Mr Selby became teary and emotional” and that it was opined by Mr Selby that this was because the conversation had turned to his daughter, the relationship with her being a matter of great concern to him.
What is also clear is that at the time of the offending behaviour
Mr Selby was suffering from either an undiagnosed or misdiagnosed mental health condition for which he is now, thankfully, and as he has acknowledged, gratefully receiving treatment. Those mental health difficulties were exacerbated by what is described in Hall J’s reasons as a significant difficultly with drugs and alcohol including drinking up to 24 cans of pre-mixed spirits per day and 17 to 20 cones of cannabis.
Those are behaviours that are now behind Mr Selby. That is to his credit although no doubt, the assistance he has received from and the vigilance of the Department of Corrective Services has been of some benefit. Clearly, at the time of his offence Mr Selby was not in a position to engage actively with [X] or to engage in decision-making with Ms Keene. Thus, there is some force to Ms Keene’s submission that she has, for all of [X]’s life and certainly the last seven years, been the person who has solely made decisions and without any real input or assistance from Mr Selby.
I do not propose to canvas or discuss the evidence in any greater detail, suffice to again note that all of the material before the Court has been read and considered.
I will refer to specific portions of that evidence in addressing the legislative pathway to which I will now turn. That is not intended to suggest that by doing so that the totality of evidence has not been considered or that the portions of evidence referred to in addressing the legislative pathway are all that is considered.
The Legislative Pathway
I must commence with section 60CA of the Act which reminds the Court that in all that is done the child’s best interests are the paramount consideration.
I must then turn section 60B of the Act which contains the objects and principles, and I incorporate that section herein.
Objects of Part and principles underlying it
(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.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles do not form part of the substantive law. They do however, assist in the interpretation and application of the substantive provisions and provide, as it were, overarching philosophical guidance as to the outcome that the Court should endeavour to achieve.
The objects provide that the Court should ensure that the best interests of children are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests. There is no presumption in favour of involvement. However, the Court is obliged to consider the maximum extent to which such involvement can meaningfully occur and be of benefit to the child.
The principles create a number of rights for young [X], including the right to know and be cared for by both parents, to have both parents spend time and communicate with her on a regular basis and to have her parents share duties and responsibilities. However, the rights are not absolute. They are subject to the caveat that they do not apply or can be tempered or interfered with when the Court is satisfied that it would be contrary to her best interests. There is also the real potential, as arises in many cases including this, for those rights to be internally inconsistent and in conflict with each other.
The parents clearly have not been able to communicate with each other on any meaningful level or to be engaged in meaningful decision-making jointly and consensually at any time since [X]’s birth. The reasons for that have varied from time to time.
During the period from shortly after the parties’ separation, when [X] was a tiny baby of some months of age, the father was resident interstate and primarily in Western Australia. That created logistical difficulties.
Those difficulties were compounded by the demons which bedevilled Mr Selby at that time, both as regards to his mental health and his drug and alcohol use, rendering it difficult or impossible for Ms Keene to communicate effectively or promptly with Mr Selby or for the parents to discuss and resolve issues between them. In those circumstances, again, there is some real force to the submission put by Ms Keene that she has, for all intents and purposes, been the sole maker of decisions for [X] for some little time.
What is also clear is that on the one occasion demonstrated by the evidence when it has been necessary for the parents to make a joint decision (within the major issues decision category defined in section 4 of the Act, the application for an issue of a Passport for [X]), they had been unable to resolve that issue and with the consequence as
Ms Keene has submitted, that [X] has “missed out”. It is unclear the basis upon which consent was withheld or refused by Mr Selby to the issue of a Passport to enable [X] to attend a cruise with her mother. It is unfortunate that such refusal occurred. I accept Ms Keene’s submission that [X] missed out and her life experience was diminished as a consequence.
There are also practical difficulties in relation to communication between these parties, one of which is evidenced by the brief adjournment of the proceedings this morning. Material filed by
Ms Keene earlier in March 2015 was promptly forwarded to Mr Selby by post and would not appear to have yet arrived with Mr Selby. Accordingly, it would seem, as Ms Keene has submitted, that if there were any time pressure relating to any decision that needed to be made in the future then clearly it would obviate against joint decision-making.
The objects, I am satisfied, would not support joint decision-making at this time. That is not to suggest that Mr Selby does not desire and that there is no benefit to [X] in having a meaningful relationship with the child. Decision-making is an important part of the meaning given to a relationship. But the meaningful nature of the involvement and relationship must be viewed from [X]’s perspective. She does not have any memory of, nor any lived experience of joint decision-making occurring between her parents for the reasons outlined above, and there are real concerns and practical impediments to it occurring in the future especially if decisions are to be made in a timely fashion or benefitting [X] in a child focused fashion.
As regards the rights created for [X] by section 60B(2) of the Act, the decision I am asked to make today will not impact upon the ability of both parents to care for [X] in a physical sense. Clearly, only Ms Keene can do so. It is a regrettable consequence, although clearly taken into account by Hall J in his reasons for sentencing that the imprisonment of Mr Selby will deny him the opportunity of seeing his daughter grow up. I whole heartedly accept that that is a matter of great emotional pain and distress for Mr Selby. However, it is a reality that arises as a consequence of Mr Selby’s imprisonment for the actions which he undertook at a time prior to his receiving proper and appropriate assistance and treatment for both his drug and alcohol and mental health issues.
The logistical difficulties that arise as regards to the parents living on different sides of the continent further impact upon any reality of time occurring between [X] and her father on a face-to-face basis and communication will, it would seem at least for the foreseeable future, be limited to letter writing. These practical difficulties again impact upon the decision I must make. They are real and they are substantial, and they would obviate against the allocation of equal shared parental responsibility on its face.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies. The presumption does not apply in circumstances where the Court is reasonably satisfied, on available evidence, that there has been family violence or abuse within the broad definitions in sections 4 and 4AB of the Act respectively.
I am satisfied on the basis of an acceptance of Ms Keene’s unchallenged evidence that such reasonable grounds for a finding would exist. Thus, the presumption would not apply. Lest I am wrong in that regard, I am satisfied that it would be contrary to young [X]’s best interests for an Order for equal shared parental responsibility to be made at this time and for reasons I will shortly explore. That would result in rebuttal of the presumption.
That being so, I am not obliged to consider equal or substantial and significant time arrangements, although clearly, no consideration could be given to any Order for [X]’s time with either parent other than the Order that is sought and is already in existence, being an Order that [X] live with her mother.
I must then turn to section 60CC of the Act in considering any Order with respect to [X]. I must commence with the primary considerations in section 60CC(2) of the Act, being:
a)The benefit to the child of a meaningful relationship with both parents; and,
b)The need to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence.
The latter factor is not in play in this case, although if it were it would be prioritised above all else by operation of section 60CC(2A) of the Act.
In considering the benefit to [X] of a meaningful relationship with both parents it must be observed that at this time [X] could not be assessed to have a relationship, let alone a meaningful relationship, with her father. I do not record that finding to be hurtful to Mr Selby or to disregard his real and genuine desire to have such a relationship with his daughter. It is simply a reflection of the evidence as it stands and as to which there is neither significant challenge nor controversy.
The benefit to this little girl of continuing her meaningful relationship with her mother is not disputed and will be secured through the Orders that are sought for her placement in her mother’s care being the only reasonable and practical arrangement available. That is an arrangement that has well served this little girl’s needs. She is doing well and there is nothing to suggest that Ms Keene is providing other than abundantly beneficial parenting and thus, providing a wonderful childhood experience for this little girl in the difficult circumstances in which she finds herself.
As Ms Keene herself has observed, this little girl is now of an age where she is asking questions about her father. Arrangements as regards communication and exchange of information would appear to be in place between the parties without the need for, nor any application for, Orders.
[X] is a little girl soon to turn eight. When matters arise, for example, at her school in relation to mothers and fathers she is acutely aware of the reality that her father is absent her life. That causes great pain to Mr Selby, but more importantly for this determination, causes some angst and anguish for young [X] as well as for Ms Keene, the person left to deal with the explanation of that reality. Those enquiries from [X] are dealt with, from that which Ms Keene has put before the Court, sensitively, appropriately, and with child focus. Mr Selby will continue to engage with [X] through correspondence and with the possibility that the parties will, in the future, negotiate an arrangement for Skype.
It must also be observed, with some real empathy for Mr Selby’s position that he has come, as he has described, from a broken family. That is regrettably, and I accept without any intent on the part of
Mr Selby, a baton which he will now pass on to [X] she coming from the same disadvantage and the same emotional depletion that Mr Selby has experienced in his life whereby she will not, in any meaningful way, know her father as a consequence of his incarceration on the other side of the continent.
The benefit to this little girl of a meaningful relationship with her father cannot be achieved through any Order that this Court makes. It could be suggested that a continued involvement in decision-making, at least with respect to major issues, would provide some small step towards a relationship, and ultimately, and in the fullness of time, a relationship of meaning. However, I am not satisfied that the practical difficulties, as evidenced by the illustrative examples from the evidence discussed above, would warrant such a step being taken. They would obviate against it.
Additional considerations
Views
There is no real evidence of [X]’s views other than she is happy and well cared for where she lives with her mother. It is the only home she has known and it is a home that provides her with good physical and emotional support.
The nature of the child’s relationship with each parent and other persons
[X]’s primary relationship, indeed verging upon, if not in fact her sole relationship, with her parents is her relationship with her mother. The relationship with her father is important. If she is not able to experience her father as a lived experience, even if it is only by correspondence, and hopefully in the fullness of time, Skype communication, she will be the lesser for it.
Baker J was oft want to comment that children have a right to know their parents “warts and all”. Indeed, young [X] has a great deal to benefit from understanding the difficulties that her father faced from an early stage in his life and the strength and courage that he has shown, albeit to some extent the circumstances leading to that rehabilitation having been imposed through correctional services, but they are experiences which can give great empowerment to this little girl - knowing that her father was not absent from her life because he chose it but because, prior to his incarceration, he was dealing with his own difficulties, and following his incarceration he was physically impeded from doing so.
That is something which this little girl is made aware of and should continue to be made aware of. There is no purpose in lying to her. I have no doubt it will be so and will be done with some sensitivity by Ms Keene.
At this point in time this little girl’s only real parental relationship is with her mother. That would again support the relief which Ms Keene seeks and which would further serve not only the little girl’s best interests but her relationship with her mother.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making and spend time to communicate with the child
Clearly on the evidence, Mr Selby could be criticised. However, there is nothing to be gained from doing so. It is not an excuse for past non-participation that Mr Selby was struggling with his own demons, but they were real. They were circumstances created for him, indeed, imposed upon him by his childhood. He had no control over those circumstances. He was a young child whose parents did not do enough to protect him and did not do enough to raise him as he should have been.
Those difficulties have followed Mr Selby into his adult life and have had remarkably disadvantageous consequences, not only for Mr Selby but for [X], (through the father’s absence), for Ms Keene, (through the difficulties that arose in their relationship), and it must be remembered respectfully for Mr N, the victim of the offence, giving rise to
Mr Selby’s conviction for murder and his present lengthy sentence arising therefrom.
Mr Selby’s absence and his failure, nor practical impediment to participate, is real, albeit to a large extent created by circumstance beyond, or at least beyond the scope of Mr Selby to control.
Ms Keene could not be so criticised. She has participated in this little girl’s life since birth. She has done everything for her and as she has indicated, she has made all of the decisions and done so with no significant assistance from Mr Selby and indeed, the difficulty of refusal and opposition by Mr Selby for no good reason in the one instance that the evidence demonstrates he was asked, being the refusal to consent to the issue of a Passport for the child in 2011. The issue of a Passport, the child’s right, would have allowed this little girl a most enjoyable experience with her mother which she was instead denied by her father.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is some controversy as to what Child Support has been paid in the past. Clearly, there is none at present and a debt that had accumulated is now waived.
Whilst the Court is obliged to consider financial arrangements they are far from dispositive in a case such as this. One would be loath to strip a parent of time with a child or decision-making in relation to a child purely because they did not pay Child Support. In any but the most extreme of circumstances it could not be so.
I need not consider it further as in this case there are other circumstances which are far more compelling.
Likely effect of change, including separation from either parent or other persons
A consideration of the effect of change in this case is essentially a consideration whether both parents will continue to be equally responsible for decision-making for this child on paper or whether the mother alone will make decisions as regards major issues as she practically has for the child’s life.
The simple reality is that at all times since [X]’s birth it has been
Ms Keene’s role to make decisions and she has discharged that role ably and capably. She has not made poor decisions for this little girl. She has made very good decisions including, at times, as regards protection from the devils troubling Mr Selby shortly after the parents’ separation.
Ms Keene has made very protective decisions to ensure that this little girl was well-cared for and safe.
The effect of change, I am satisfied, would support the mother’s relief as sought. There has been no practical involvement by Mr Selby in decision-making, again not as a criticism of him but purely a reflection of the evidence and practical reality.
In the future, there are real practical difficulties, the next factor I will turn to, in decision-making being joint. This supports the relief sought by the mother.
Practical difficulty and expense
I incorporate herein section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
These parents live not only a significant distance apart, some three thousand kilometres and on different sides of the continent, but there is the very real and practical issue that Mr Selby will, until 2029, be an inmate of correctional facilities in Western Australia. He has no capacity to send emails, text messages, or make phone calls as and when he desires. His life is greatly regimented and controlled.
From that perspective, as Ms Keene has submitted, again with some real validity and force, it is not a simple matter for these parents on a practical level to make joint decisions. Their communication involves sending items by post and which, certainly in the case of the mother’s Affidavit filed on 9 March 2015, is yet to arrive with the father. It is not simply a matter that the mail is delivered and distributed. There are processes that are in place in correctional facilities and for good reason to ensure that all mail is appropriately handled, addressed, if necessary censored or withheld, and if not necessary, passed on. However, there are real delays as a consequence. Those delays would have great potential to be disadvantageous to this little girl in decision-making.
The parents’ capacity now, in the past, and in the future to make joint decisions and resolve difficulties is amply demonstrated by the evidence to be as close to non-existent as is possible.
The one occasion when the parties have had to make a joint decision about a major issue, the issue of a Passport to allow [X] to enjoy a cruise with her mother, there was refusal without reason and the primary person who suffered was the child.
The impact on the child of a continued Order for equal shared parental responsibility is also problematic. If an Order for equal shared parental responsibility, as included within the consent Orders made by the Local Court, Southerland in 2008, were to continue then section 65DAC of the Act requires that the parents must then consult with each other and make a genuine effort to reach consensual decisions about major issues. That is not demonstrated to have ever occurred in this child’s life and there is, for the practical reasons above if nothing else, little hope or prospect that it would be different in the future.
Capacity to meet the child’s needs
Ms Keene is abundantly capable of meeting this little girl’s needs. She is an excellent mother who is doing a wonderful job raising a little girl as a one parent household in the most complete of meanings.
This little girl lives with her mother, is well-cared for and has good decisions made for her.
The father is not capable, at this time, of providing for this little girl. He desires greatly to do so but he simply cannot. He is an inmate until 2029. The child cannot live with him, and in light of the parties living on different sides of the continent, face-to-face time is impossible.
Maturity, sex, lifestyle and background of the child
This is a little girl of nearly eight years of age. She is developing well. She is well cared for and there is nothing specific that must be addressed, other than to observe that she needs decisions to be made for her. She cannot make them for herself and they need to be made in a timely fashion and well. That is exactly what has occurred in the past when decisions have been made by Ms Keene alone. On the one occasion when a joint decision was attempted it was disadvantageous for the girl.
Aboriginality
Neither parent suggested that they identify as Aboriginal or Torres Strait Islander, thus, nor does the child.
Attitude to the child and responsibilities of parenthood
I am satisfied that is addressed above. There is nothing to be gained from any criticism of either parent’s attitude. Indeed, there could be no criticism of Ms Keene’s attitude. She has done things the right way. She has gone about things the right way in approaching the Court to obtain Orders that will enable her to make decisions for her daughter’s best interests.
Mr Selby is not in a position to effectively participate at this point in time, but his attitude towards his daughter – whilst it has been troubled in the past as a consequence of his own difficulties in life – is not criticised at this time. He desires and I accept genuinely and stridently, a meaningful relationship with his daughter. That is not something that is opposed by Ms Keene, but there are real limitations upon how that relationship can be developed in the circumstances described above.
Family violence orders
An Order has been made in the past. There is none at present nor any need for one. It is difficult to comprehend how there could be a reasonable apprehension of family violence when Mr Selby is incarcerated in Western Australia until 2029.
Whether it is preferable to make orders that would least likely lead to the institution of future proceedings
I am satisfied that this irresistibly supports the mother’s position. As indicated, on the one occasion the parties have attempted joint and consensual decision-making, it has failed and it has caused real disadvantage to this young girl in that she missed out on an entirely pleasurable experience which she should not have been deprived of.
There are real practical impediments. If an Order for equal shared parental responsibility was made it would be an onerous burden imposed upon Ms Keene. If such an Order were made, there are real practical difficulties that would render it pointless and meaningless.
In all of those circumstances, future proceedings would be all the more likely, by way of further Application for variation or Contravention, in the event that Ms Keene proceeded to make decisions without consulting Mr Selby and that is perhaps, the cherry on the icing atop the cake, which compels the relief that Ms Keene seeks be granted.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 27 May 2015
Key Legal Topics
Areas of Law
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Family Law
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