MAHANY & COLT

[2015] FamCA 310

FAMILY COURT OF AUSTRALIA

MAHANY & COLT [2015] FamCA 310

FAMILY LAW – PARENTING – Mother to have sole parental responsibility.

APPLICANT: Ms Mahany

RESPONDENT: Mr Colt

FILE NUMBER: CAC 595 of 2014

DATE DELIVERED: 20 January 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 20 January 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf

Orders

Accordingly, I make the following orders:

1. Ms Mahany have sole parental responsibility for B, born on … 2011. 

2. The child will live with his mother.

3. The child will spend such time with and communicate with his father as may be agreed between his mother Ms Mahany and Mr Colt. 

4. The matter is otherwise removed from the pending cases list and is finalised. 

5. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

6. All previous orders relating to the child are discharged. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahany & Colt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 595 of 2014

Ms Mahany

Applicant

And

Mr Colt

Respondent

REASONS FOR JUDGMENT

1. In this matter the application before the Court was commenced by the child’s mother.  the child was born in 2011 and the initiating application sought a number of orders relating to the return of the child from his father at that point, but orders, on a permanent basis, that the child live with his mother and such other orders “as may be appropriate”. 

2. These are parenting orders and in making a parenting order, I must take as my primary consideration, the best interests of the child, rather than the particular interests of either of the parents - although they are not to be disregarded. 

3. And in coming to those conclusions, I must place as my primary considerations, the benefit to the child in having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

4. In this matter I am not satisfied that there is any family violence from which, or abuse from which, the child needs to be protected.  I am concerned, given the nature of the correspondence of the father’s communications with the Court, the emails of 4 October and 10 August 2014, which are exhibits J1 and J2 respectively, that there could be some psychological harm occasioned to the child if he were to spend time with his father on an unsupervised basis at the moment.  This is so particularly, in circumstances where (apparently) Mr Colt denies that he is the father of the child.

5. That leads to a consideration of the other primary consideration - which is the benefit to the child in having a meaningful relationship with both of his parents.  In this matter, irrespective of whether or not there would be a benefit to the child in having a relationship with Mr Colt, Mr Colt’s attitude at the moment precludes such a relationship from occurring and therefore, the benefit to the child is to some extent, illusory. 

6. There are other considerations I am to take into account: the child’s views are one.  I do not have any direct information about, but which, in any event, I would have to regard with some degree of, I suppose, reservation, given his age and that he is not old enough to make decisions, or considered and mature decisions about what he should and should not do.

7. I am satisfied, from the evidence given by the mother this day, that as appropriate, the child will have the benefit of having communication with his father, subject to this being in his best interests at the time, and I am satisfied that his mother has a good and appropriate understanding of what would be in the child’s best interests.  His relationship with his mother is, by inference and by direct evidence, a good one, and his relationship with his grandparents, both maternal grandparent and grandfather, is one which is of benefit to the child. 

8. It is apparent from the material filed that the child’s father has failed to take opportunities to be engaged in a number of long term decisions or matters relating to the child, has failed from time to time to spend time with the child and has failed to communicate with him.  The motives for this, of course, are always difficult to ascertain and it may well be, as I am sure Mr Colt would argue if he were before me, that this is brought about by some pushing back on the part of the child’s mother and her family and friends.  That is not a matter that I could possibly find [as a fact] and I am concerned more to establish that irrespective of whether or not there was some reason for doing so, Mr Colt has not communicated with, and has not spent the time that he might have spent, with the child.  I might add, in this regard, I made orders, providing opportunities for this, in May of last year and Mr Colt has failed to take opportunities to take advantage of those orders. 

9. I am satisfied that the child’s mother has fulfilled her obligations as a parent, both in relation to supervision, care, love, attention and financial support of the child and I am satisfied that the orders that I am proposing to make will not effect any major change in the child’s circumstances which may operate adversely against him. 

10. There is no practical way in which contact or communication may occur between the child and his father because of the attitude presently expressed by the child’s father.

11. I am satisfied that the child’s mother has the capacity properly to provide for the child’s needs, including his emotional and intellectual needs and I am satisfied that Ms Mahany has demonstrated an appropriate responsibility in relation to parenthood. 

12. There are no family violence matters which (notwithstanding the wide definition of violence under the Family Law Act) bear upon these decisions.  The orders I make would be, in my opinion, least likely to lead to the institution of further proceedings, although it is possible that if the child’s father has a change of heart, he may seek to enlist the assistance of the Court in providing orders about the child at some point in the future.  No one can predict what that future may bring.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 20 January 2015.

Associate: 

Date:  30 April 2015