Larvin and Larvin (No. 2)

FAMILY COURT OF AUSTRALIA

LARVIN & LARVIN (NO. 2)

[2009] FamCA 475

FAMILY LAW – CHILDREN – Parental responsibility – Psychiatric condition of mother

Family Law Act 1975 (Cth)

APPLICANT:

Mr Larvin

RESPONDENT:

Ms Larvin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

2557

2005

DATE DELIVERED:

1 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

28 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR GEDDES QC WITH MS LANE

SOLICITOR FOR THE APPLICANT:

FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

MR MAWSON SC

SOLICITOR FOR THE RESPONDENT:

GALBALLY & O'BRYAN

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That pursuant to the provisions of Rule 6.10 of the Family Law Rules 2004, Ms W be appointed as a case guardian for the wife Ms Larvin in the further conduct of these proceedings.
That the further hearing of the husband’s application in relation to the adjustment of property be adjourned to a final hearing on 17 June 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.
That the children X born … August 1995, O born … July 1997 and C born … February 2001 live with the husband.
That the husband have sole responsibility for the children.
That the husband be at liberty to remove the children from the Commonwealth of Australia for the purposes of a holiday, school excursion, or school exchange.
That the husband is by these orders, authorised and permitted, to apply for and receive an Australian passport for each of the children without first obtaining the consent of the wife.
That the wife spend time with the children for four hours on one day during each school term holidays on a date and time advised to her by the husband in writing, four weeks prior to the commencement of each school term holiday.
That the wife’s time with the children be conditional upon:
(a)the time being supervised by a supervisor nominated by the wife and approved by the Independent Children’s Lawyer, or after her discharge from that role, the husband;
(b)the wife having paid the costs of the supervisor seven days in advance of each visit;
(c)the wife advising the supervisor at least 72 hours prior to each visit that she will exercise that time with the children;
(d)the wife not consuming alcohol for a period of 24 hours prior to, or during, any such time that she spends with the children and she being breathalysed by the supervisor immediately prior to the commencement of that time (but in the absence of the children) and that she return a blood alcohol reading by the breathalyser of zero;
(e)the wife not being adversely affected by any drugs or medication during any such time; and
(f)the wife not denigrating the husband or his family to the children or in the presence or hearing of the children.
That the wife be restrained by herself, her servants or agents from:
(a)entering upon or coming within 100 metres of any place, at which the children may attend school; and
(b)approaching the children in any other place, save as in accordance with these orders.
That the appointment of the Independent Children’s Lawyer be forthwith discharged.
That 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.

AND THE COURT NOTES

A.That the parties intend to convene a conference to explore the possibility of resolving all issues in dispute prior to the return date; and
B.The adjourned hearing will be subject to any order of Justice Cronin to proceed to a final hearing on the adjourned date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2557 of 2005

MR LARVIN

Applicant

And

MS LARVIN

Respondent

REASONS FOR JUDGMENT

On 28 May 2009, I made final parenting orders and said I would publish my reasons later. My reasons are set out below.
There are three children of the marriage of Mr Larvin and Ms Larvin. They are X born in August 1995 and therefore 13 years old, O born in July 1997 and therefore 11 years of age and C born in February 2001 who is now 8 years old. All children live with their father.
For my convenience, I shall refer to the parties as the husband and the wife.

Background

The husband is a 44 year old medical practitioner.
The wife is a 45 year old qualified registered nurse although I suspect she is not so working.
The parties were married in October 1994 and separated in August 2005 when the husband left the former matrimonial home and the children went with him.

History

The proceedings in this Court were initiated by the husband. They related to parenting and property issues.
The history culminating in these final parenting orders needs to be set out to explain why it had become important for the children to bring at least this part of the proceedings to an end. The litigation has been physically, emotionally and financially draining for the parties but in particular the husband. The court file runs to seven volumes and as I shall set out below there have been approximately 33 hearings of various natures over the space of four years.
On 18 August 2005, the husband filed an application seeking parenting orders and orders for personal injunctions.
On 12 December 2005, the wife filed a response to those applications by the husband. She sought parenting orders. At that time, the wife was in a Melbourne psychiatric clinic and facing serious criminal charges. That is her version of events. She sought that her time with the children be supervised.
On 21 December 2005, an Independent Children’s Lawyer was appointed.
On 7 February 2006, orders were made that the wife have limited and supervised time twice each week with the children.
On 13 June 2006, orders were made by consent of the parties including that each of them have joint responsibility for the long term care, welfare and development of the children.
On 16 November 2006, an order was made in the absence of the wife under which the time she was to spend with the children was varied requiring her to give notice if she proposed to see them. The obvious inference can be drawn from that order.
On 4 December 2006, an order was made by consent of all parties which amounted to a limited variation of the existing contact arrangement. Importantly however, the orders provided for the sale of two properties including the former matrimonial home. That order has never been effected.
On 6 February 2007, orders were made including that contact supervisors have access to psychiatric and psychological reports relating to the wife.
On 23 March 2007, Mushin J ordered that a priority final hearing of all matters take place.
At a variety of interlocutory hearings thereafter, the wife attended without legal representation.
On 21 July 2007, the wife filed an application against the husband seeking that he be dealt with for contravening existing orders. She alleged that he had been talking about the case to the children contrary to the order and that he had not permitted telephone contact to take place.
On 11 July 2007, Young J dismissed the wife’s application for contravention for technical reasons.
On 26 September 2007, Senior Registrar FitzGibbon had a hearing which was contested, ordered the wife to have time with the children for two hours every fourth Sunday under supervision which was to be paid for by the husband. Thereafter, there were a number of interlocutory hearings involving financial issues.
On 3 December 2007, Brown J commenced what was the final hearing ordered by Mushin J to which I have referred. On that day, all parties including the wife were at court and represented. It seems that the wife collapsed and was taken to hospital and the hearing was aborted.
On 5 March 2008, by consent of all parties, orders were made for the wife to again have limited time with the children under supervision.
On 16 October 2008, orders by consent were made of the parties that the husband provide the wife financial assistance by way of partial property settlement noting that the husband was continuing to meet mortgage commitments, rates on the home as well as $288 per week for the wife. Almost two years had then passed by since the order was made for the former matrimonial home to be sold. Nothing had happened.
On 11 February 2009, Registrar Sikiotis held a hearing. The wife was represented by a lawyer. The matter was listed for mention before me on 4 May 2009 as a prelude for the final hearing which was to take place not before the 24 May 2009. Importantly, the Registrar made procedural orders for the filing of material.
On 4 May 2009, I observed that the wife had failed to comply with her obligations under orders and had not participated in the family report conducted by psychologist Ms M. I struck out the wife’s response to the husband’s application noting that she had not been an active participant in the children’s lives let alone the proceedings.
On 28 May 2009, Mr Mawson SC announced that he had limited instructions to appear for the wife. Mr Geddes QC with Ms Lane appeared for the husband and Ms Agresta appeared on behalf of the Independent Children’s Lawyer.
Mr Mawson said that he had been only instructed the previous day and in his view, the wife lacked capacity to give instructions. He said he made it clear that he would not take any instructions unless she agreed to have a case guardian and she had reluctantly accepted that. The wife’s sister had been prepared to act as the case guardian and there was a letter addressed to the Court in relation to another matter which confirmed her willingness to so act.
Mr Mawson pointed to a 2007 report of a Dr F in which the doctor described the wife as having problems such as a personality disorder, alcohol addiction and so forth. In Dr F’s view, the wife needed a case guardian. To some extent that was inconsistent with an affidavit previously filed on behalf of the wife by Dr F in which she indicated that once all of the litigation matters had concluded, the wife would be psychiatrically much better. Ultimately it did not matter because having regard to the fact that the husband is a medical practitioner and the psychologist Ms M had a particular view as well about the wife’s problems together with the views of Dr F, it was clear that whatever the difficulty was with the wife of a medical nature, it was significant.
I indicated to the parties that I was willing to contemplate a delay of the financial matters but not for very long and have adjourned those proceedings until 17 June 2009. I have also made it clear that if the wife does wish to participate, it will only be on the basis of an application and the question of what roles if any, she plays will be the subject of further submission. Mr Mawson indicated to me that he and Mr Geddes were proposing to try and resolve issues of the financial matters in the meantime.
Mr Geddes however indicated that with the matters to which I have earlier referred, it was imperative that the children’s matters proceed particularly having regard to the limited role that the wife had played in the lives of the children of late. That view was supported by counsel for the Independent Children’s Lawyer.
Accordingly, there is no material of the wife before the Court concerning parenting matters upon which I could rely. In any event, I would suspect it would be of little assistance now having regard to its age. As I indicated to the parties, notwithstanding any ill health problems of the wife, the children need to see an end to this litigation for their own sakes.
Accordingly I indicated that I was prepared to proceed to a final hearing in respect of the parenting issues and Mr Mawson indicated that he had no instructions in relation to that matter. Ms Agresta on behalf of the Independent Children’s Lawyer encouraged me to proceed indicating that she had no cross-examination of the husband or his witnesses nor did she wish to put any further submissions other than that she supported the orders sought by the husband. She indicated to me that as far as she was concerned, there was no evidence of any risk for the children in the orders being pursued.
The husband sought orders that the children live with him and that he have sole responsibility for them. He also sought orders about being able to remove the children from Australia for the purposes of a holiday, school excursion or school exchange. Similarly, he sought orders relating to passports for the children to be obtained without the necessity to involve the wife in that process. In respect of the time between the children and their mother, the husband sought orders that the wife spend time with the children for four hours on one day during each school term holidays on a date and time to be organised by the husband in writing conditional upon it being supervised by the husband on the basis that the Independent Children’s Lawyer will be discharged from these proceedings. Various restrictions were also sought by the husband in relation to how that supervised time should take place including the breathalysing of the wife by the proposed supervisor.
The husband also sought orders that the wife be restrained from entering upon or coming within 100 metres of any place at which the children were attending school or from approaching them otherwise in accordance with the orders sought by the husband.
All of those orders make sense having regard to the nature of the relationship between the wife and the children and more importantly, what they have been through during the last few years. In my view, making orders in those terms is in their best interests for the reasons which I shall now set out.
The husband relied on his affidavit of 4 February 2009 together with an affidavit of Ms M filed 12 May 2009. Ms M also referred to earlier reports that she had made and whilst those are obviously of some significance, her most recent report attached to her affidavit is very comprehensive and a good insight into the needs of the children. None of those documents was responded to or challenged by the wife. I accept all of those matters as evidence in so far as they relate to parenting issues.
The husband said that the wife had suffered from a form of post-natal depression as a result of the miscarriage in 1999. Normally that would be objectionable as requiring an expert opinion but I am conscious of the fact that the husband is a medical practitioner. The husband said that he became aware that his wife had a drinking problem and could not control her intake of alcohol. Combined with the abuse of alcohol came problems.
He said that as a result of the wife increasing her alcohol consumption, more responsibility for domestic duties fell to him.
The husband had outlined surgery that the wife had in 2004 and her incapacitation for many months during which time, he took over responsibility for the care of the children. He said he was able to do that whilst maintaining full-time work and where he needed assistance, he obtained the services of a paid nanny.
The husband said that following surgery, the wife took prescription painkillers and consumed alcohol as a result of which she was drunk most days. He said her habit was to lie in bed leaving the children to him.
The husband said that 2004, the wife was admitted to a private psychiatric facility on five occasions including one as an involuntary patient. During this time, there were attempts at suicide. Those problems necessitated the involvement of people such as ambulance paramedics. Combined with these problems came verbal and physical aggression. The husband set out that in 2004 and thereafter, he had the police attend the home because the wife had locked herself in a bedroom indicating that she was going to commit suicide. The police were required to restrain her with handcuffs to get her to hospital. During 2005, with the deterioration of the wife’s behaviour, separation occurred. The wife was admitted to a city Hospital and a private psychiatric Clinic following episodes of intoxication, suicide attempts and abusive behaviour. As reported by the husband, he would come home from work to find his wife in bed drunk whilst the children were left unsupervised. It has to be kept in mind at this stage that X was 10 and C was 4.
The husband set out a litany of problems associated with abuse, admission to hospitals and the intervention of emergency services such as the police, fire brigade and ambulance. With the deterioration in the wife’s health, the children were at risk because on one occasion in August 2005, the wife fell asleep having left something on the kitchen stove which ultimately started to smoke. The timely intervention by a neighbour prevented a further catastrophe. The wife was found asleep.
Matters did not approve subsequent to separation. The proceedings in the court were adjourned to enable the parties to attend counselling and mediation with Dr L as psychologist. A tentative agreement was reached but it did not last long.
The same problems of suicide ideation and health services intervention followed.
Even with orders of the court in place, there were problems between the wife and the supervisor. The husband deposed to an incident in which it was brought to his attention that the wife was found scuffling with the supervisor in the presence of the children and one of them had run away.
All of these problems have not gone away. I do not propose to traverse the negativity any further. Suffice to say, the contact between the wife and the children has been very limited.
Since the separation of the parties, the husband said that the children were anxious and disrupted although to his credit, he acknowledged that they missed their mother. To some extent, that is still evident in the evidence of Ms M to which I shall refer.
The husband reported that X was initially distant and struggled with the change in environment but things now seemed to have altered. He said that O was very security conscious and needed reassurance even in his own home and that he had difficulty sleeping. The youngest child C seemed to cope reasonably well.
The husband observed that the children were excited about spending time with their mother although they were anxious. Because of the inconsistency of the regularity of the visits, the husband reported that the children had come to expect very little from their mother and now show little reaction when a visit is cancelled. All of that evidence gives rise to the need for the orders proposed by the husband and supported by the Independent Children’s Lawyer.
In addition to face to face contact, the husband reported that telephone arrangements had been problematic. The husband said that the children were always anxious immediately before the scheduled time for the call and described the children as being upset when the wife was angry, argumentative or accusatory on the telephone. He said he observed that the children were relieved when there was a good telephone call or none at all. Sadly, the husband pointed to the fact that the oldest child X has borne the brunt of most of her mother’s aggression. That is not surprising having regard to the age of X.
The husband described X as a bright child who is very mature. He said she was very protective of her two younger brothers. That is consistent with the views of Ms M.

The husband reported that X is a member of a choir and participates in regular concerts. He said she enjoyed music and has an interest in world events and was doing well at school. That has to be seen as a compliment to his persistent efforts.
Because of the age of X, it is not surprising that she has view about what should happen and according to the husband, that view is clear. Having regard to the views of Ms M, I propose to follow the views of X.
The husband reported that O was an affable and affectionate child who had a mild learning problem with a sequence of letters that required extra tuition. He said that in the last twelve months, O’s learning had improved markedly as well as his temperament. He said that O’s self-confidence had increased.
When observing the nature of the relationship between the wife and O, the husband described it as ambivalent. I shall refer to what Ms M says about that below.
The husband described C as a shy and quiet child who had a very close bond with him. C seems to be doing well at school and has been described by his teachers as a leader. He seems to be a physically active child.
The husband described C as missing having a mother as distinct form missing his mother. He described C as sometimes feeling sad about his mother but also angry and frustrated.
None of those observations are at all surprising having regard to what the children have witnessed and been through over the period of time both before and after separation.
The husband described his working hours as including times with the children. When he is working outside of the children’s school hours, he has engaged a full-time nanny who assists with not only the children but also household tasks. It is clear from the evidence of Ms M that the nanny is a significant person in the lives of the children.
I have no concerns therefore about the capacity and responsibility of the husband in relation to the care of the children in the future.
Ms M is a clinical psychologist of over 20 years experience specialising in child and family psychology. She has all of the appropriate qualifications and experience for me to be satisfied that she has expertise in the field of child behaviour and children’s needs to the extent that I have confidence in accepting her evidence.
Ms M said that she had undertaken a number of reports but on the last of the occasions involving her involvement with the children, the wife did not attend.
Ms M observed that with their father, the children appeared happy and settled. She said they were smiling and engaging in spontaneous conversation. She described no evidence of anxiety or concern either with the children or their father.
Of the individual children, Ms M described X as a girl with well-developed verbal skills and a mature manner for her age. She said that X was able to articulate the various aspects of her life including her relationship with her mother. Ms M observed that X indicated a caring and concerned attitude towards her younger brothers and an ability to consider the family situation as well as her individual feelings. She described her as speaking positively and with warmth about her father and her relationship with him and that she expressed no concerns about her relationship at home or with her father. The same can be said of the care provided for all of the children by the nanny.
In relation to the relationship between X and her mother, Ms M described the child’s view as not wanting to see her mother at all because she was annoyed at her. X was able to express feelings of disappointment and anger towards her mother particularly at a personal level.
According to Ms M, X saw that she was deriving nothing positive out of the relationship with her mother but was able to acknowledge that the situation could change in the future. If nothing else, that is something for the wife to strive for if she takes the time to read these reasons. She has an opportunity to understand that X sees her mother as having problems that only her mother can fix before she, X would be interested in having a significant relationship with her mother.
Ms M observed that O spoke openly and easily about things although he became unsure and confused when talking about his mother and there were signs of anxiety. He spoke positively about his father and how his life was evolving. O described the situation with his mother as not one in which she was really trying to see him but when she did, it was “fun”. O felt comfortable with having a supervisor present.
As for the future, O reported that he understood his father would organise for him to see his mother if that was his wish although he expressed concern that that might be difficult.
C was described by Ms M as a happy child whose manner changed when he was enticed to talk about his mother. She said that he wanted to leave the room because he found the discussion difficult. However, Ms M said that his attitude towards his mother was at best ambivalent. She described that there were some indications of emotional confusion and anxiety. Apart from that, there was no difficulty in his relationship with his father at home. He wanted his mother to be good so that he could see her and he had recollections of happy visits in the past.
Ms M opined that she was limited in what she could say having regard to the absence of involvement of the wife. However, she reported what she had previously read and heard including the fact that she was aware that the wife had been diagnosed with Borderline Personality Disorder, major depression and problems with alcohol. Ms M was well aware of the situation having read all of the affidavit material and various reports.
Ms M said that on the basis of the available evidence, the situation that she had previously reported on seemed to have worsened. She said the children’s time with their mother had lessened rather than remaining constant or increasing with large gaps in time between visits. As a result, it was Ms M’s view that the children’s experience of their relationship with their mother was likely to be one in which there was a lack of reliability or consistency. She said that despite all of that she had the impression that O and C were still happy to see their mother albeit under different circumstances. She said that neither child sought more time with their mother.
Ms M said that the comments by X were of concern and that those views had hardened from previous assessments indicating a particular degeneration of the relationship.
Ms M said that X was at an age where she might be expected to be more challenging of her parents particularly of her mother and in the circumstances the mother had to be conscious of that and deal with it appropriately.
As a consequence, Ms M said there was no basis to recommend any increase in time between mother and children. She said it would be important to try and balance ensuring that the children had an opportunity to have some kind of meaningful relationship with their mother while at the same time trying not to expose them to too much further disappointment. I would add to that, exposing them to the sort of horrific events to which I have earlier referred. As for the husband’s proposal for the future, Ms M said that it was something the Court had to give some consideration to on the basis of the evidence available particularly in relation to the wife’s ability to function appropriately and importantly, to be consistently available for the children.
Ms M indicated that if the wife was willing and able to make the commitment, joint counselling sessions with X might be useful as the future means of dealing with the issues in their relationship. However, all of that is predicated on the basis that the wife overcomes her own medical and personal problems and then makes a commitment to be significantly involved in the lives of the children.
Leaving aside the question that the evidence was untested and unchallenged, I have no reason to doubt what Ms M says makes a lot of sense.
Having regard to the evidence, I have little doubt that even if the wife did participate in this hearing about the parenting issues, it would be hard for me to see any other orders than those which I am urged to make.
It is imperative that the wife sees that in many ways, the prospect of any future relationship from which the children will derive a benefit is very much in her hands.
Part VII of the Act provides the structure for the determination of every parenting dispute.
Section 60B(1) of the Act provides as follows:
(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.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.
Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), provide as follows:
(2) The primary considerations 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.
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. In this case, the children are, at best, ambivalent and at worst, resistant to any relationship with their mother. Again, the door is not completely closed but the message is clear that the two younger children want some consistency.
The Court cannot manufacture a relationship but rather, give the parties and a child every possible opportunity to commence, resume or develop such a relationship.
Conversely to all of that, there is a very strong and therefore meaningful relationship, between all three children and the husband.
There is therefore no point in giving the first of the primary considerations in s 60CC any further thought.
The second of the considerations relates to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. No issue was raised now that the children will be subjected to those problems particularly with the limited regime proposed and the presence of a supervisor.
Section 60CC(3) provides a number of additional considerations.
The first of those relates to the views expressed by a child. I have set out above the views expressed by X and having regard to her understanding of the problem of her mother, I find it is important to not only acknowledge that the court has heard what she has to say but in this case, to follow her views. It will be up to the wife to prove to her own daughter that things can change so that X desires to have a relationship in the future.
In respect of the younger children, the evidence of Ms M is clear. I suspect that the boys are not in the same category as X but their confused and anxious views are understandable in the circumstances. It is time for that to stop.
The nature of the relationship between the three children and their father is good. I have already complimented the husband on his perseverance.
Section 60CC obliges me to consider the willingness and ability of each of the parents to facilitate and encourage a close and loving relationship between the children and the other parent. The husband has made consistent efforts to maintain the relationship between the children and the wife but she has failed whether because of her ill-health or otherwise to fulfil the responsibilities.
I have taken into account the likely effect of any changes in the children’s circumstances on the basis of the separation from either of their parents. The children are not distressed by the absence of their mother albeit that they have a desire to see consistency and regularity of a safe relationship. There is nothing this Court can provide by way of orders that would meet those needs.
I have considered the capacity of each of the parents to provide for the needs of the children. The husband has the capacity and the ability to care for all of their needs. I cannot make a similar finding in respect of the wife for reasons that I have set out.
I am obliged to take into account the attitude to the children and the responsibilities of parenthood demonstrated by both parents. Again, it is difficult to know what to make of the wife’s position because it may be that she is incapable of being a responsible parent as a result of her illness. On the other hand, with all of the resources of the medical profession to which I have been referred in the evidence, it seems to be a matter still in her hands.
There are now no family violence issues about which I am concerned.
Section 60CC urges courts to make final orders wherever possible to prevent further litigation. This is one such case where the children are crying out for a permanent resolution. The orders I will make enable the children to at least know of their mother if she makes the necessary efforts to try and establish some form of relationship.
Section 60CC also requires a court to consider historically what has happened in sub-secs (4A) and (4) but in this case, having regard to the multitude of orders in the past, there is little more that can be said.
It goes without saying therefore that I find that the orders that I am about to make are in the best interests of the children.

Equal shared parental responsbility

Part VII of the Act also requires that in any parenting application, the court start from the fact that each parent has equal shared parental responsibility.
The relevant provision in the Act reads as follows:
(1)      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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
I am satisfied that there is ample evidence to show it is not generally in the best interests of the children for there to be equal shared parental responsibility because of the wife’s inability to provide for the children or to communicate with the husband.
I find that it would not be in their best interests for the parents to have equal shared parental responsibility.
It follows that the husband should have sole parental responsibility.

I certify that the preceding One Hundred and Six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 1 June 2009

[2009] FamCA 475

1 June 2009

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