LOMU & YATES
[2018] FamCA 142
•6 March 2018
FAMILY COURT OF AUSTRALIA
| LOMU & YATES | [2018] FamCA 142 |
| FAMILY LAW – CHILDREN – Undefended final parenting hearing – Where the father has disengaged from the proceedings – Where it is appropriate to proceed with the matter on an undefended basis – Where the father’s mental health and behaviour and drug use are of concern – Where there are allegations of family violence – Where the father poses an unacceptable risk of harm to the children on these bases – Where there are allegations the father poses a risk of sexual harm to the children – Where these allegations were not pressed at final hearing – Where the mother’s parenting capacity has improved over time – Orders made by consent for the children to live with the mother and have no contact with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN |
| G & C [2006] FamCA 994 | ||
| APPLICANT: | Mr Lomu | |
| RESPONDENT: | Ms Yates |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | HBC | 16 | of | 2017 |
| DATE DELIVERED: | 6 March 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17 October 2017 & 11 December 2017 |
REPRESENTATION
| THE APPLICANT: | Self-Represented, no appearance |
| SOLICITOR FOR THE RESPONDENT: | Gonzalez & Co |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children B born on … 2010, C born on … 2013 and D born … 2014 (“the children”).
The children shall live with the mother.
The children shall not spend time with the father Mr Lomu.
The mother shall do all such things that are necessary to continue to engage with her General Practitioner and any other medical practitioner or therapist or counsellor as recommended by her General Practitioner and shall be compliant with all treatment and directions.
The Court Notes
The final orders are made with the consent of the Independent Children’s Lawyer and the mother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lomu & Yates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: HBC 16 of 2017
| Mr Lomu |
Applicant
And
| Ms Yates |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
In January 2017 the father commenced proceedings in the Federal Circuit Court in another state with respect to the future parenting arrangements for his four children. Subsequently those proceedings were transferred to the Family Court of Australia and to this registry as the mother and children were residing in this state.
The father did not attend upon the expert appointed to provide a report in the proceedings in June 2017 and has not otherwise engaged in the proceedings since at least August 2017.
On 17 of October 2017 following a hearing in which only the mother and Independent Children’s Lawyer (“ICL”) participated and which proceeded so far as the father is concerned on an undefended basis, I made final orders with respect to the three younger children with the consent of the ICL and the mother and indicated that I would publish my reasons at a later date. These are those reasons.
The children’s maternal grandmother was also subsequently joined to the proceedings so far as they related to the oldest child who had been living with the maternal grandmother for some time.
On 11 December 2017 after the maternal grandmother had been joined as a party to the proceedings I made final orders with respect to the older child in terms consented to by the maternal grandmother and mother. Reasons for those orders were given orally on that occasion.
These Reasons relate to the parenting arrangements for the parties’ three younger children.
Background
The mother who is 36 was born in New Zealand and came to Australia as a young child with her mother and some of her 10 siblings.
The father who is believed by the mother to be 32 came to Australia as a refugee from Africa as a young adult. It appears that the father may have fathered two other children before and at around the time of beginning a relationship with the mother.
The parents began a relationship in 2004 or 2005 but did not live together except for a short period in 2009. Their relationship was characterised by a number of separations and reconciliations.
The parents’ eldest child, a daughter who is currently aged 11, was born in 2006. This child was placed into the care of the maternal grandmother by the mother at a few weeks of age as the mother was the victim of significant family violence perpetrated against her by the father and was concerned for the child’s safety.
The mother has been the victim of serious family violence perpetrated by the father against her throughout most of the relationship.
In 2007 an Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother who spent some time living in a refuge.
In December 2008 the father assaulted the mother when they were in a car together by pulling her out of the car, throwing her on the ground and either punching or kicking her face. The mother suffered a fractured eye socket and concussion and was hospitalised as a result of the incident.
In 2009 when the parents were living in Queensland together for a short time there were a number of occasions when the father assaulted the mother. On one occasion the father “bashed” the mother and she contacted police from the closet in a neighbour’s home where she had sought refuge. After this incident a restraining order was put in place against the father for the protection of the mother.
On another occasion in 2009 the father held the mother down with a knife to her neck and threatened to kill her and on another occasion the father bit the mother on the back leaving a bite mark which lasted for some weeks. The mother also reports the father subjecting her to forceful unwanted sexual activity with him which she reported to the police and resulted in her spending some time in a refuge.
The parties separated in 2010 at around the same time the father was diagnosed with paranoid schizophrenia. He was admitted to a mental health unit at a hospital on two occasions in 2010 and at least once every year since 2010.
Notwithstanding this separation the parties engaged in an intermittent sexual relationship and in 2010 and their second child, a son (“the second child”) was born.
In 2012 the father believed that the second child who was then two was misbehaving because evil spirits had possessed his body and were controlling his behaviour.
In 2013 the parents’ third child, another son (“the third child”) was born.
In 2014 the parents’ fourth child, a daughter (“the youngest child”) was born.
The father continued to act erratically since being diagnosed with paranoid schizophrenia. For example, in 2014 he rubbed spittle and oil on the children’s heads in the belief that he was protecting them from evil spirits. On another occasion in the same year when the mother was in the car with him the father drove through a red light and told the mother that he believed “the illuminati” were following them and had caused the light to turn red to stop him.
The father was a user of marijuana on a regular basis throughout the relationship and also regularly used alcohol to excess.
In 2016 there were a number of incidents in which the father behaved in a dangerous and erratic manner as a result of his marijuana or excessive alcohol use and/or his mental health condition and failure to comply with medication as directed. On one occasion when the two youngest children were in the father’s care, (and the father had not taken his medication for a number of days) the father made a fire in his bedroom in an effort to “get rid of bad spirits” which resulted in items of clothing and a mat being burnt. On another occasion in 2016 police were called as the father and his friends were drunk and fighting and the mother and children were inside the father’s home and felt frightened and unable to leave.
In October 2016 when the mother was at the father’s home so that the father could spend some time with the three younger children the father threatened to “bash [the mother]’s head in” and told her he “could kill you if I wanted to”. The father later told the mother that he made this threat because he “needed sex and wasn’t getting any”.
The mother says that the youngest child (aged two) disclosed in November 2016 to her that “papa [the father] licked out my bum”.
The mother moved to Sydney with the three younger children to get away from the father and be closer to the maternal grandmother and the eldest child in November 2016.
The father commenced these proceedings in December 2016 in the state in which he was then living.
The father and the four children were seen by a Family Consultant in a Child Dispute Conference in February 2017. The mother participated in that conference by telephone. At that stage the parents had agreed to all the children having telephone contact with their father twice per week but the mother had concerns about the children physically spending time with the father. The father at that stage said that if supervision of his time with the children was required he would be prepared to travel to Sydney for that to occur.
The proceedings were transferred to this registry in April 2017. Orders were made for the children to have contact with their father by telephone, Skype or similar technology two times per week. The orders also provided that the parties were to undertake the assessment process at two nominated contact centres in Sydney for the purposes of arranging supervised time between the father and children which was to occur as soon as such time could be arranged.
The mother completed the intake assessment with the contact centres as required in April 2017 but it is not clear whether the father complied with this order. He has not spent any time with the children since November 2016.
The father did not appear in person at the next court event in May 2017, though a lawyer did appear by telephone link on his behalf when it was ordered that the ICL had liberty to forward to chambers consent orders with respect to the appointment of a court expert.
On 22 June 2017 a child and family psychiatrist (“the expert”) was appointed in the proceedings. The expert made arrangements to see both parents and the children over a two day period in late June 2017. The father did not attend upon his appointment though he did have telephone contact with the expert.
The father has not participated in the proceedings since this date.
The matter came before the court on 15 August 2017 following the release of the expert’s report. There was no appearance by or on behalf of the father on that date and orders were made listing the matter for an undefended hearing.
On 17 October 2017 there was again no appearance by the father and the mother and ICL sought that the Court proceed to deal with the matter to finality in his absence.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father on 17 October 2017.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Accordingly, the father’s material was not read and orders were made for the mother to have sole parental responsibility for the children and for the children to live with the mother and spend no time with the father.
Expert evidence
The mother and four children were assessed by the expert both separately and together. The older two children were seen individually. The expert also had telephone contact with the father, the counsellor at the children’s school and the father’s GP with the father’s permission.
In general the expert was of the opinion that there were significant reasons to believe that the father poses a risk of harm to the children if he were to spend unsupervised time with them and she did not support the children living with him. She expressed the opinion that over the next 18 months (from July 2017) the children should spend time with the father on a monthly basis in a contact centre, aiming to maintain a connection with him which would provide a base for them building a closer relationship in the future.
The expert is a very well qualified child and family psychiatrist who has significant experience in clinical practice, in medico-legal practice and teaching. In addition to her assessment as a result of interviews with the mother and children the expert had access to detailed records from documents produced on subpoena including medical records, urinalysis and conversations with the father’s GP.
As a result of viewing the documents produced on subpoena the expert raised the following concerns:
·the father’s history of violence towards others, including the mother and a previous pregnant partner;
·the father’s lack of compliance with his prescribed anti-psychotic medication in the past leading to a concern that he could relapse into an acute psychotic episode as a result of his paranoid schizophrenia;
·the father’s significant history of substance abuse, including a positive urinalysis test for cannabinoids in March 2017, which is of concern as cannabis use can “precipitate psychotic events”;
·the father’s lack of insight into his mental illness and history of both minor and major legal offences as he has not taken responsibility for his actions or sought assistance to manage his actions; and
·the father’s recent move to Melbourne and “past irresponsible lifestyle”.
Having regard to the nature of the expert’s assessment, her expertise and experience and the absence of challenge to her report I accept her opinion and attach significant weight to it.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
This expression has not been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents. The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Although the expert is of the opinion that there are a number of risks of harm posed by the father to the children she was not of the view in July 2017 that the children did not receive any benefit from having a meaningful relationship with their father. At that time orders were still in place for the father to have telephone contact with the children and when it became available supervised time at a contact centre was also to occur. The expert recommended that such supervised time occur on a monthly basis for about 18 months with the aim of maintaining the children’s connection with their father and providing a base for them building a closer relationship in the future if possible. She expressed the view that in 2019 so long as the father’s mental health had stabilised and he had maintained that regular contact with the children that time together could take place outside a contact centre.
The father did not ever spend time with the children at a contact centre even though the mother took steps to register with the contact centre as ordered and had always taken the position that the children would benefit from having a meaningful relationship with their father so long this could occur in a safe environment.
The father can be taken by his failure to maintain contact with his children to accept that they will not receive a benefit from having a meaningful relationship with him in the future. The final orders consented to by the mother and the ICL and made by me in October 2017 are consistent with this position.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The final orders which are extreme in their nature (that the children spend no time with the father) are in my view necessary to protect the children from psychological harm and possible physical harm arising from being subjected to abuse and neglect and exposure to family violence in the care of the father.
There is extensive uncontradicted evidence that the father has been the perpetrator of family violence against the mother throughout their entire relationship and that at times the children have been exposed to this violence. Further, when interviewed by a family consultant in a Child Dispute Conference in February 2017 the father acknowledged that when he was 16 and 17 years of age he was “aggressive” to the mother but claimed he had not been physically aggressive to her since then.
There is a dispute between the parents about the father’s age and he told the family consultant’s that he was 26 in February 2017 when the mother said he was 31. The mother said that the father had lied about his age in documents related to his refugee application. A number of the serious instances of violence were perpetrated by the father in 2008 and 2009 including the occasion on which he fractured bones in the mother’s face. These events occurred when the father was 16 if his claims about his age are to be accepted.
I am satisfied that the father committed the serious acts of violence against the mother as she claims in 2009 as his own admissions to the family consultant are consistent with this allegation.
The various ADVO, restraining and intervention orders made against the father between 2005 and 2009 are also consistent with the mother’s allegations of the father’s continued violence against her during this period.
It is also in my view likely that the father continued to threaten the mother as she alleges until shortly before the parties separated which caused her to be frightened and to seek the protection of the police.
The risk that the father may neglect the children by failing to supervise them when in his care and thereby cause them physical harm is also associated with his marijuana use and mental health condition, particularly when he is non-compliant with medication. At times he has acted dangerously by acting upon his delusions such as driving through a red light, and lighting a fire at his home when the children were in his care. The mother also reported to the expert that the father often drove when intoxicated.
The father has a long-standing history of cannabis use. Although he denied ongoing cannabis use when first seen by a family consultant in February 2017 it was observed by the expert as a matter of significance that “cannabinoids” were to detected through urinalysis in March 2017. As the father does not produce any evidence concerning the cessation of cannabis use, it can be inferred that he continues to use this substance.
Concerns about the father’s mental health and behaviour when acutely psychotic together with an absence of information about his current treatment are also factors relating to the risk of harm associated with abuse, neglect and exposure to domestic violence in the father’s care.
I accept the concerns raised by the expert about the combination of the father’s history of violence, his past lack of compliance with taking medication required to treat his paranoid schizophrenia and history of acting on his paranoid delusions when acutely psychotic and putting others in danger together with his significant history of substance use and apparent lack of insight into these matters. I am satisfied that the father poses an unacceptable risk of harm to the children should he spend unsupervised time with them.
Although the expert proposed a regime of contact with the father that may have mitigated the risks posed by him over time the father has not engaged with that proposal.
Although the mother was concerned that the father may pose an unacceptable risk of sexual abuse to the children at the time she finally separated from him and moved to Sydney in November 2016 and she reiterated these concerns to the expert, the issue of sexual abuse was not pressed at the final hearing. In my view having regard to my findings concerning the unacceptable risk posed by the father in relation to neglect and exposing the children to family violence it is unnecessary to make any findings concerning the risk of sexual harm posed by the father.
Although there are some concerns in relation to the mother’s parenting capacity and her behaviour in the past there is no evidence to suggest that currently she poses any risk of physical or psychological harm to the children arising from abuse, neglect or exposure to family violence in her care. The mother’s parenting capacity is considered later in these reasons.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
Nature of the children’s relationship with each parent and other significant persons
When interviewed by the expert the second child who was six years old said that he was not upset about not seeing his father. When specifically asked he said he would like to see his father but did not want to live with him full time.
The younger two children who were four and three respectively were not interviewed having regard to their rage.
All of the children were observed by the expert in their interactions with their mother.
The expert expressed the opinion that the second child is attached to the mother but gave mixed messages about his father, while clearly identifying him as part of the family. Although this child indicated that he would like significant time with his father and did not appear fearful or anxious about his father I accept the opinion of the expert that he is too young to be able to evaluate what is in his best interest and for this reason I attach no weight to any expressed views.
The expert was also of the view that the younger two children presented as being attached to their mother who the expert described as “appropriately thoughtful about them” and attached to them.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Based upon the uncontradicted evidence before me I am satisfied that the mother has solely made all of the significant decisions in relation to her three younger children throughout their lives. For some time prior to November 2016 the mother was also prepared to facilitate the children spending time with and communicating with their father even though they did not live together as a family.
After the mother moved away from the father with the children to the Sydney area the father was initially diligent in bringing these parenting proceedings and continued to be engaged in them until at least late February 2017. However by June 2017 it appears that he had abandoned taking steps to participate in long-term decision making regarding the children and spending time with and/or communicating with them. I attach particular weight to his failure to attend the appointment with the expert in June 2017 and to further participate in these proceedings.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The mother appears to have entirely fulfilled her obligations to maintain the three younger children and there is no evidence to suggest that the father has fulfilled any obligation in this regard.
Likely effect of change in the children’s circumstances
The orders proposed by the mother and made by me do not bring about any change in the children’s living arrangements.
The orders do bring about a change in the children’s circumstances that existed prior to the father commencing these proceedings in that it appears that they had some fairly regular contact with one another at that time.
However, the children have not maintained their relationship with their father through physical contact for around 16 months and so far as I understand it there has not been any telephone contact for some time. Although it is a regrettable for the children to have lost a connection with their father which may have provided a base for them building a closer relationship in the future this has been brought about by the father rather than as a result of the orders which by the time they were made simply formalised the status quo.
Capacity of each parent and any other person needs including emotional and intellectual needs
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
It appears likely that there were concerns about the capacity of both parents to meet the needs of the eldest child and in relation to both parents attitude to the responsibilities of parenthood at the time that child was born. According to information given frankly and openly by the mother to the expert the mother was as naive when she met the father and this naiveté seemed to have continued when their first child was born.
Although I am of the view that the mother was responsible in placing the eldest child into the care of the maternal grandmother at this time she remained in a relationship with the father notwithstanding his violence. The mother also admitted to using cannabis with the father (though not to the same extent as the father) but says that she stopped cannabis use herself when the father became mentally unwell in 2010. She believed that the father’s cannabis use was associated with his psychotic illness and attempted to no avail to have him cease using it.
While the mother appears to have matured and improved her parenting capacity and skills over time it appears that the father continues to act irresponsibly rather than take on the responsibilities of parenthood.
I accept the opinion of the expert that by the time of her assessment (mid-2017) the mother presented as a committed parent whose relocation to Sydney appeared to be primarily motivated by her belief that the children needed protection from the father. Although at that time the alleged risk posed by the father appeared to relate to sexual abuse which was not investigated there were many other factors associated with the father’s mental health, drug use and lifestyle which raised matters of serious concern. In moving to Sydney the mother was also able to rely upon the maternal grandmother to assist her with her parenting. The expert notes that the mother openly acknowledged past difficulties in her parenting but expressed the following opinion of the mother:
She has made a reasonable adjustment to the relocation, providing stable housing and schooling for the children. She presented as being attached to her children (and they to her) and seemed appropriately thoughtful about them and willing to meet their psychological needs.
The expert also expressed the view that the mother would be advised to seek some family support services and to engage the third child in preschool and to undertake some parenting courses. The mother deposes to the third child being on a waiting list for pre-school and her obtaining a referral to consult with a Cognitive Behavioural Therapist in response to the concerns of the expert.
The expert also opined that the mother would be wise to reflect through counselling on her past choices and future aspirations before she enters a new partnership as it will be important to her and the children that she does not develop another relationship containing intimate partner abuse.
The expert described all of the children as “notably well-behaved with good self-regulation”. She said that the second child “presented as a serious, sturdy, alert African-Australian six year old” who was “co-operative, attentive and anxious to please”. This child seemed to have some awareness of his African heritage.
It is unfortunate for the second child and the other children that they will not receive the benefit of any participation in the culture and traditions of their paternal African heritage due to the actions of the father in disengaging in future involvement in the children’s lives.
Family violence
Family violence is a salient feature in this matter which has been dealt with at length earlier in these reasons.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The father has engaged in family violence and is now no longer participating in the proceedings. There is no alternative other than an order for sole parental responsibility for the children to be allocated to the mother. Such an order will formalise the arrangement that has been in place in relation to the children throughout their lives.
Conclusion
Having considered to all of the matters in relation to the best interests of the and attaching particular weight to the father’s non-participation in the proceedings, the risks of harm proposed by the father and the mother’s parental capacity and attitude to the responsibilities of parenthood I am satisfied that the orders consented to by the mother and the ICL are appropriate and in the best interests of the children.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 March 2018.
Legal Associate:
Date: 6 March 2018
Key Legal Topics
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Family Law
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