Lamothe and Wadkins

[2011] FMCAfam 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMOTHE & WADKINS [2011] FMCAfam 228

FAMILY LAW – Interim parenting arrangements – Father disengaged in proceedings – Aboriginal culture of child – no orders made as to child’s time or relationship with Father.

Family Law Act 1975, ss.61DA, 65DAA(5), 60CC
International Convention on Civil and Political Rights
The International Convention on Indigenous Rights

Applicant: MS LAMOTHE

Respondent: MR WADKINS

File Number: PAC 3319 of 2010

Judgment of: Harman FM

Hearing date: 4 March 2011

Date of Last Submission: 4 March 2011

Delivered at: Parramatta

Delivered on: 4 March 2011

REPRESENTATION

Solicitors for the Applicant: Mr Jerd

ORDERS

1. I discharge all prior parenting orders with respect to the child of the relationship, [X], who was born [in] 2008.

2. [X] shall live with his mother.

3. Ms Lamothe, [X]’s mother, shall have sole parental responsibility for him.

4. I note that no order is made at this time regarding [X]’s time or relationship with his father and that issue to be addressed or need to be the subject of agreement between the parents, family dispute resolution through a community agency or further application to this Court.

5. Otherwise, discharge the Independent Children’s Lawyer.

6. I dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.

7. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

8. The solicitors for the mother are to forward to Mr Wadkins at his last known address as disclosed in the notice of ceasing to act filed by his former attorneys a copy of these orders within seven days of receipt of same by them.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3319 of 2010

MS LAMOTHE

Applicant

And

MR WADKINS

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to interim parenting arrangements with respect to a child, [X] born [in] 2008. 

2. These proceedings were commenced by [X]’s mother, Ms Lamothe by application filed 15 July 2010 which had sought orders for the recovery of that child having been removed from her care by his father,

   
   

   Mr Wadkins. 

3. The proceedings came before the Court on 16 July 2010, and on that day, interim orders were made which included the requirement that [X] be returned to his mother’s care. Orders were also subsequently made which provided for [X] to spend time with his father.

4. This matter has been before the Court on a number of occasions since the initial dealings with the matter. Mr Wadkins was at the mention of the matter 18 August 2010 present and represented and a number of orders were made on that day. 

5. On 1 October, the matter was again before the Court and on that day, Mr Wadkins was present and again was represented. On that day proceedings were adjourned to today and a number of directions made including, importantly, directions for therapeutic referrals. 

6. The Court has not received any feedback from the Agencies to which Mr Wadkins was referred, but Mr Wadkins has, since that time, disengaged from the proceedings and I am advised has not, since Christmas 2010, some three months ago, sought to spend any time with [X].

7. That is regrettable as clearly during the occasions when Mr Wadkins was present with his father, he had indicated, as had his father - this child’s grandfather - a real desire to have an active engagement with him. Of some significance also Mr Wadkins and his father, both aboriginal men, had indicated that there was some clear disruption in their relationship with each other in the past which was being repaired in no small part as a consequence of Mr Wadkins having become a father and having seen that as something of an epiphany in his life. 

8. It was hoped that Mr Wadkins would engage with the services that were made available to him by Court ordered referral and that time arrangements would continue so that this child would have the opportunity, unlike so many aboriginal children, of having an active and ongoing involvement with his father and with his aboriginal culture.

9. That is not to suggest that I have any concerns that Ms Lamothe will not actively facilitate arrangements for time or indeed this child’s connection with his culture. But consistent with the International Convention on Civil and Political Rights and the International Convention on Indigenous Rights and as in part at least embodied in domestic law and the Family Law Act 1975, [X]’s right to experience his culture extends beyond the knowledge of it but requires and deserves an active lived experience of that culture and his engagement in that culture with other people of that culture - in this case his father and grandfather.

10. I could only hope that at some stage Mr Wadkins will reengage and certainly no orders will be made by me today that will preclude that occurring and whether by agreement between the parties or by subsequent application should Mr Wadkins seek to bring one because I intend to be silent with respect to the issue of Mr Wadkins’ time with [X]. That will leave it to Mr Wadkins, in his own good time and, perhaps for explicable reasons, when he is in a better position to participate in these proceedings, to come before the Court or, one would hope, pursue community-based Family Dispute Resolution services or direct negotiation with Ms Lamothe to make arrangements for that to occur.  It would clearly be to this child’s benefit to have some engagement with his culture and with his father and paternal family.

11. But in the circumstances, with the father not participating in the proceedings, there seems very little point to be served in further delaying the disposal of the matter. 

12. We have attempted today to contact Mr Wadkins on the phone number provided in the notes of ceasing to act now filed by his lawyers, but without success. 

13. I am satisfied that Mr Wadkins is aware of today’s listing and any litigant must and should be aware that if they do not participate in proceedings that the matter can and will in all probability and absent cogent explanation be concluded at the earliest opportunity as a consequence of the non-attendance. The notice of ceasing to act also makes clear that Mr Wadkins was advised of the fact that the matter was before the Court today. 

14. The only other course that would be available to me would be to adjourn the proceedings and to require notification be given to

    
    

    Mr Wadkins. But this is the second occasion on which the matter has been listed and that neither Mr Wadkins nor his legal representative have appeared.

15. I am satisfied that a further adjournment of the proceedings to give

    
    

    Mr Wadkins a third opportunity to participate would be unproductive.

16. Even on undefended basis, the Court is required to consider the relevant provisions of the Family Law Act in making any orders, the objects and principles of the legislation being the starting point for the exercise. 

17. It is not possible on an undefended basis for this Court to make any order that will ensure the child has the benefit of both of the parents having a meaningful involvement but that is not in any way to suggest that Ms Lamothe is responsible for that. 

18. The presumption of equal shared parental responsibility pursuant to s.61DA is then considered. That section allows the Court to rebut the presumption on a number of grounds being findings that there has been abuse of the child or a member of the child’s family, family violence or pursuant to subs.(4), the Court being satisfied that it is simply not in the child’s best interests.

19. That test is perhaps best weighed against s.60CC dealing with the child’s best interests and s.65DAA(5) dealing with reasonable practicality.

20. I am satisfied that one or all of the three grounds are made out based on the evidence filed by Ms Lamothe. She clearly makes allegations of family violence, allegations of family violence that have occurred in the presence of this very young child and which, in my mind, would constitute abuse. If those allegations, on a forensic testing, were found to be so, and they must be accepted as they are unchallenged for today’s purposes, then the presumption does not apply. I am also satisfied, having regard to s.60CC subs.(4), that Mr Wadkins has failed to participate in decision-making or spending time with his son and that would be a basis for not applying the presumption.

21. In the circumstances of this case it would be reasonably impractical for equal shared parental responsibility to exist in any meaningful form particularly having regard to the violence alleged by Ms Lamothe.  Accordingly, I am satisfied the presumption would and should be rebutted. 

22. On that basis, I am not mandated to consider ordering the time arrangement set out in s.65DAA regarding equal or substantial and significant time, although the Court, of course, has discretion to do so in the same fashion that the Court can, if the presumption of equal shared parental responsibility is rebutted, still make an order for equal shared parental responsibility, but I do not propose to do either.

23. In relation to what is in this child’s best interests and what is reasonably practical, I am satisfied that the only order the Court can make is for [X] to live with his mother.

24. Clearly, she is doing a perfectly good job. She is not a mother who is without difficulties but she is addressing those difficulties and she is to be commended for that. 

25. Ms Lamothe is the only mother this child will ever have. In the same manner, Mr Wadkins is the only father that this child will ever have. It is regrettable perhaps, as I have observed, that his ability to connect and form and continue a relationship with his father is impeded by

    
    

    Mr Wadkins’ present difficulties and I am satisfied that it is not through a lack of interest on Mr Wadkins’ part that he is not engaged in these proceedings or his spending time with his son, but indeed, as a consequence of the personal difficulties which are clearly manifest in the material that has been filed, that both parents have voiced in the past and perhaps Mr Wadkins has failed to address at this point in his life as fulsomely as Ms Lamothe has.

26. It is not practical for any order to be made by me today for [X] to spend time with his father as the order would simply create an obligation for Ms Lamothe to undertake certain actions and would create an unnecessary burden for her when there is no realistic expectation that Mr Wadkins, based on his non-attendance with respect to the time orders that have been in force since ordered by this Court prior to Christmas 2010, will appear, and accordingly, I do not propose to make any order regarding time.

27. In relation to [X]’s living with his mother, it is clear that she is the only available carer for him and that she, is in fact, doing a perfectly good job.  As indicated, she is not without past difficulties but she is addressing them. She is engaged with the Brighter Futures Program.  She has followed the referrals and orders that the Court has made regarding therapeutic assistance and is reported to be doing well and continuing to engage with those services. Whilst in many circumstances parents who have faced difficulties are criticised, there is no purpose whatsoever in this case to do so.

28. Ms Lamothe has had a poor upbringing that has predisposed her to these disadvantages and she is working away at the disadvantages and making the best of her life as she can. Certainly there is no suggestion that [X] is being other than loved, cared for and appropriately raised by her and I am perfectly satisfied that she is doing a very good job and, indeed, having regard to the effort that would be required by her to overcome the disadvantages that her own upbringing has left her with, she requires even further congratulation for the more significant effort she has made to overcome those difficulties.

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

Date: 18 March 2011