LESTER & VICKERY
[2012] FMCAfam 1309
•23 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LESTER & VICKERY | [2012] FMCAfam 1309 |
| FAMILY LAW – Children – parenting orders – variation of parenting Orders – best interests of the child – where Respondent did not attend Court – parental responsibility – sole parental responsibility – best interests of the child – need to protect the child from harm – where family violence order in force. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65AA, 65DAA Federal Magistrates Court Rules 2001 r.13.03C |
| Lester & Vickery [2011] FMCAfam 817 |
| Applicant: | MS LESTER |
| Respondent: | MR VICKERY |
| File Number: | SYC 1415 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 23 November 2012 |
| Date of Last Submission: | 23 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2012 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | No Appearance |
ORDERS
All previous parenting Orders are discharged.
The Applicant Mother is to have sole parental responsibility for the child [X] born [in] 2007.
The child [X] is to live with the Mother.
The child [X] is to spend supervised time with the Respondent Father as follows:
(a)The Father is to attend a supervised contact centre unaccompanied;
(b)The Mother is permitted to attend supervised contact;
(c)The Father is to pay any costs for supervised visits; and
(d)During such contact the Father must commence, complete and provide to the Mother certificates of completion for the following courses:
(i)Anger Management Course; and
(ii)Parenting Skills Course.
Forty Eight (48) hours prior to spending time with the child and during the time spent with the child the Father must not consume illegal drugs, pharmaceutical drugs in excess of their prescribed dosage or any alcohol.
The child [X] is permitted to travel with the Mother outside the Commonwealth of Australia and the Mother is allowed to remove the child from the Commonwealth of Australia without the consent of the Father for a period not exceeding three (3) months.
The parties must forthwith do all such acts and things and execute all such documents to apply for and obtain a passport for the child [X].
Neither party is to denigrate the other party, or the other party’s family or any person with whom the other party may live in the presence or hearing of the child or allow the child to remain in the presence or hearing of any other person who is denigrating either party or their family or any other person with whom the party may live.
The Mother is to retain the discretion to cease the child’s contact with the Father and apply to the Court to vary these Orders if there any changes in the child’s behaviour.
The Respondent Father is restrained by injunction from bringing the child into contact or allowing the child to be brought into contact with MR V.
IT IS NOTED that publication of this judgment under the pseudonym Lester & Vickery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1415 of 2008
| MS LESTER |
Applicant
And
| MR VICKERY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application to vary parenting orders made by this Court on 20 May 2011. On that date, the Court made Orders after an undefended hearing (Lester & Vickery[1]) providing that:
a)the mother was to have sole parental responsibility for the parties’ child [X], who was born [in] 2007;
b)the child was to live with the mother;
c)the mother was permitted to change the child’s name from the father’s surname of Vickery to the mother’s surname of Lester;
d)the child was to spend time with the child at his parents’ residence;
e)changeover was to take place at the [A] Police Station;
f)the mother reserved the discretion to cease the child’s contact with the father and apply to the Court to vary the Orders if the child’s behaviour was to change as a result of his time with the father;
g)the father was required to take the child to a general medical practitioner at [omitted] Medical Centre; and
h)the child was permitted to travel overseas with the Mother.
[1] [2011] FMCAfam 817
On 13 April 2012 the mother applied to the Court for a variation of the previous Orders. The Application was accompanied by an affidavit by the mother and a Notice of Child Abuse or Family Violence. The Application was returnable before the Court on 22 May 2012, on which day Monahan FM suspended the orders made the previous year relating to the father spending time with the child and then transferred the proceeding to my docket. The father did not attend Court on that occasion.
On 18 June 2012 I made interim orders varying the earlier parenting Orders and provided that the father’s time with the child should be supervised at a contact centre. The father did not attend Court on that occasion.
The Application was adjourned to today and the father was advised that if he did not attend Court then final orders may be made in his absence.
The father has not attended Court. The mother attended Court. I decided to proceed with the hearing generally under the provisions of Rule 13.03C of the Rules.
Evidence and Submissions
The mother relied on her affidavit of 12 April 2012, in which she described how the child had reported to her about the behaviour towards him of the paternal grandfather at the grandparents’ home. As a result, she informed the father that the child would not be permitted to attend the grandparents’ home in future. She notified the Department of Community Services and later made a report to the Police at [B].
The mother gave oral evidence, saying that the father had not seen the child for a year. He had attended at her home on two occasions in the evening at about 8:30 pm, asking to see the child. The mother noticed a smell of alcohol on his breath. The child was going to bed so the mother did not permit the father to see the child under those circumstances.
The mother also gave evidence that her car had been damaged and, on another occasion, her father’s car had also been damaged. She made a complaint to the Police at [A], who applied for an Apprehended Violence Order on her behalf. On 17 August 2012 the Local Court at [B] made an Apprehended Violence Order against the father, naming the mother and the child as protected persons.
The mother submitted that the Court should make final Orders, including an injunctive order restraining the child from being brought into contact with the paternal grandfather.
The Relevant Law
Section CA of the Family Law Act 1975 requires the Court, in deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration (see also s.65AA). A Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
The primary considerations are set out in s.60CC(2), being the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm from abuse, neglect or family violence. Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
There are additional considerations set out in s.60CC(3), including any views expressed by the child and any factors that are relevant to the weight to be given to the child’s views. In this case the child [X] is too young for his views to be sought.
The nature of the child’s relationship with each of his parents and other persons, including grandparents, is a relevant consideration. The Court must also consider any family violence and whether any family violence order applies.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for his parents to have equal shared parental responsibility for him. This presumption does not apply in cases where there are reasonable grounds to believe that a parent has engaged in abuse or family violence (s.61DA(2)), and may be rebutted by evidence that satisfies the Court that applying the resumption would not be in the child’s best interests (s.61DA(4)).
Section 61DB provides that if there is an interim parenting order in relation to a child, the Court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.
Section 65DAA sets out the matters the Court must consider if the presumption of equal shared parental responsibility does apply.
All of these matters have been considered in respect of this child.
Conclusions
The mother’s evidence about the child’s description of abuse in the home of his paternal grandfather is disturbing, and it is a cause for concern that the father is said to have reacted in such a negative fashion when the mother informed him of these allegations. It is noteworthy that the father appears to have made very little effort to spend any time with the child over the previous twelve months, which leads to the finding that the father has failed to take the opportunity to spend time with his son (s.60CC(3)(c)).
It is noteworthy that the father has not attended Court on any occasion since this Application was commenced, which says little for his attitude to the child (s.60CC(3)(i)).
The Court must also take into account the existence of a family violence Order (s.60CC(3)(k)).
In my view, the Orders sought by the mother should be granted. In order to protect the child from harm, it is necessary to make an injunctive order restraining the child from being brought into the presence of his paternal grandfather, Mr V.
This is clearly a case where it is appropriate and in the child’s best interests for his mother to have sole parental responsibility for him.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 29 November 2012
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