MASTERS & MASTERS
[2016] FamCA 129
•3 March 2016
FAMILY COURT OF AUSTRALIA
| MASTERS & MASTERS | [2016] FamCA 129 |
| FAMILY LAW – CHILDREN - With whom a child lives – With whom a child spends time – Parental responsibility – Best interests of the child – Where the children have lived solely with the father – Where the mother has not attempted to spend time with the children or engaged with the proceedings – Allegations of sexual abuse perpetrated by the mother’s partner – Restraint on contact with the mother’s partner – Supervised time with the mother – Children to live with the father – Father to hold sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Proceeded to final hearing on an undefended basis. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| APPLICANT: | Mr Masters |
| RESPONDENT: | Ms Masters |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
| FILE NUMBER: | PAC | 5510 | of | 2010 |
| DATE DELIVERED: | 3 March 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 22 January 2016 |
REPRESENTATION
| FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
Orders
That the children of the parties’ marriage namely:
(a) B born … 2004;
(b) C born … 2006;
(c) D born … 2007;
(hereinafter referred to as “the children”) live with the applicant father and that he have sole parental responsibility for the children.
That the mother spend supervised time with the children, or any of them, at such times and with such frequency as is agreed between the parties.
That the time referred to in Order 2 herein, be supervised by an agreed family member and in the absence of agreement between the parties as to an appropriate supervisor, then the mother’s time shall take place at a contact centre of the applicant father’s choosing (hereinafter referred to as “the centre”).
That in order to facilitate the mother’s time with the children, or any of them, pursuant to Order 3 herein, each party must:
(a) Contact the centre nominated by the father within seven days of his nomination and arrange an appointment for an assessment for suitability for supervision of the time that the children or any of them shall spend with the mother;
(b) Attend the assessment appointment;
(c) Comply with all other appointments made by the centre for supervised time;
(d) Comply with all reasonable directions and requests by staff and, policies and rules of the centre.
That should the centre assess the family as suitable for their service, then the mother is to spend supervised time with the children, or any of them, fortnightly, or with such other frequency as can be facilitated by the centre, and at such times as are nominated by the centre.
That should the centre assess the family as suitable for their service, then the mother is to spend supervised time with the children, or any of them, fortnightly, or with such other frequency as can be facilitated by the centre, and at such time as are nominated by the centre.
That the father shall deliver the children or any of them to and collect them from the centre on each nominated contact occasion, and shall leave the vicinity of the centre promptly.
That the parties shall comply with all reasonable directions/referrals by the Co-Ordinator/Manager of the centre as to attendance in any courses, counselling or other interventions that may be of assistance to the family and in particular of assistance to the children.
That the mother is to pay the costs of her time with the children.
That the mother shall not attend the centre, or, be within the vicinity of the centre before the commencement of her scheduled time with the children, or any of them, as advised by the staff of the centre and shall leave the centre and its vicinity promptly at the conclusion of her scheduled time with the children, or any of them, as advised by the staff of the centre.
That should the centre be closed for any reason at times when the mother is to spend time with the children than the mother’s time shall take place at such times and with such frequency as is able to be facilitated by the centre when it re-opens.
That the mother is restrained from requiring the children, or any of them, to participate in religious Faith and its rituals in any way whatsoever.
That the father shall facilitate telephone communication between the children, or any of them, and the mother if requested by the children, or any of them.
That the children are to have no contact (of whatsoever nature) with Mr E.
That the father shall ensure that the children, or any of them, are able to continue to access counselling and other services, including child protection counselling services, as may be required/recommended from time to time by their treating general practitioner or other professional assisting the children.
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters & Masters 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 PARRAMATTA |
FILE NUMBER: PAC 5510 of 2010
| Mr Masters |
Applicant
And
| Ms Masters |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting proceedings concern three children: B, who is 11 years old, C who is almost ten years old, and D who is nine years old.
The proceedings were initiated by the father in February 2015. The mother is the respondent to the application. The mother had been served with the father’s Initiating Application, Affidavit and Notice of Child Abuse.
The father supports the orders proposed by the Independent Children’s Lawyer (“ICL”). In her Outline of Case Document the ICL seeks, in summary that:
a)The father have sole parental responsibility for the children;
b)The children live with the father;
c)The mother spend supervised time with the child as agreed between the parties, supervised by an agreed family member and in the absence of agreement of an appropriate supervisor, at a contact centre and associated orders;
d)The mother be restrained from requiring any of the children to participate in her religious faith;
e)The father facilitate telephone communication between the children and the mother if requested by any of the children;
f)The child have no contact with Mr E, the mother’s partner; and
g)The father ensure the children are able to continue to access counselling and other services as recommended by their general practitioner or other professional.
As discussed below, the mother has not filed any response in these proceedings, did not appear in Court, and the matter proceeded on an undefended basis.
History of the proceedings
The applicant father initiated proceedings in this Court on 6 February 2015.
On 9 February 2015, the matter was allocated to the Magellan program and orders were made appointing an ICL. On 20 February 2015, the matter came before the Court for a directions hearing, with appearances only by the father. On that same date, the father filed an Affidavit of Service.
On 12 March 2015, the matter again came before the Court, with appearances by the father and ICL. On that date it was ordered that the ICL advise the mother of the possible interim hearing and consequences of non-attending on 16 March.
On 16 March 2015, the mother did not appear. Interim parenting orders were made in her absence including that the father hold sole parental responsibility, that the children reside with the father and spend supervised time with the mother at a Contact Centre and associated orders. The matter was removed from the Magellan program.
On 24 March 2015, the matter again came before the Court for directions, with again no appearance by the mother. Orders were made for the parents to attend the Intake Event for the Child Responsive Program on 2 June 2015. Interviews for the Child Responsive Program were conducted on 2 June 2015, with no attendance by the mother. The Child Responsive Program memorandum was prepared on 24 June 2015 (Exh B).
On 22 July 2015, orders were made that in the event there was no appearance by or on behalf of the mother on the adjourned date the Court would make directions for the matter to proceed on an undefended basis. Orders were made for the ICL to forward to the mother and the maternal grandmother’s address a copy of the orders made on that date, the Child Responsive Program memorandum and a letter informing the mother that in the event of no appearance by the mother the ICL will seek directions for the matter to proceed to undefended hearing.
On 20 August 2015, the mother attended Court in person and filed a Notice of Address for Service. Directions were made for the mother to file a Response by 16 October 2015 and it was noted that during the adjourned period the mother would make an application for Legal Aid assistance and that she was expecting the birth of a child in November 2015 with her new partner.
The mother did not file a Response by 16 October 2015 as directed. On 22 October 2015, when the matter next came before the Court, upon noting that the mother had not filed the documents as directed and had failed to appear in Court, it was ordered that if the mother did not appear on the adjourned date, the father’s application would proceed to an undefended final hearing. Orders were made for the father to file and serve his trial affidavit on the mother at her address for service and the maternal grandmother’s address with a request it be brought to the attention of the mother. It was further ordered that the ICL effect service on the mother of a sealed copy of the orders, again at her personal address for service and at the maternal grandmother’s address.
On 22 January 2015, the mother did not appear. The ICL had sent a letter dated 27 October 2015 to the mother’s personal address and the maternal grandmother’s address, enclosing a sealed copy of the orders made on 22 October 2015 and directing the mother to read the orders carefully as in the absence of there being any appearance by her or on her behalf, the father’s application would proceed to an undefended final hearing.
The mother’s non-attendance: procedural fairness
The mother’s only engagement with the proceedings was her appearance on 20 August 2015. She has not appeared since, and other than filing a Notice of Address for Service, has not filed any documents in the proceedings.
She was notified by letter to her address for service, and to the maternal grandmother’s address in October 2015 that the matter would be listed for undefended final hearing in the absence of there being any appearance by her or on her behalf. At the time of hearing on 22 January 2016 there was no appearance by or on behalf of the mother.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(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.
(3) …
In the event that the Court was not disposed to apply the provisions of r 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother’s involvement and leave uncertain the circumstances of the children.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Their Honours Murphy and Aldridge JJ agreed with her Honour’s reasoning and that the application should be dismissed. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children, in that case. His Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
…
The Full Court then said:
201. We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202. Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204. Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
In this case the mother has not engaged recently in the proceedings and it is uncertain whether she will reengage in the proceedings in the future. Given that the remainder of the parties involved in the care of the children have reached an agreement and that the principle set out in s 69ZN(7) of the Act provides that proceedings should be conducted without undue delay, it is imperative for these young children that their best interests be considered not at some future indeterminate time, and at further cost to the taxpayer in relation to the Independent Children’s Lawyer and to the father personally, but in a timely manner.
The remainder of the parties are entitled to have their applications heard and the matter to be determined by reason of r 16.07.
Background
The father and mother, who are both aged 34, began a relationship in 1998 and married in 2004. The subject children are of their relationship.
The parents separated in 2007. From 2007 to 2009, the children lived with the mother and spent time with the father on alternate weekends and other times as agreed between the parents.
The father commenced living with his partner, Mr F, in around 2008.
The father says that the mother formed a relationship with her current partner Mr E in 2009.
In 2009, the parenting arrangements were changed to a week-about arrangement between the two parents.
At some time after separation, the mother changed her religious faith.
The father reported to the family consultant that around 2013 to 2014, the mother’s religious conversion had started to impact the children. The father says the children reported the mother insisting on the children participating in religious practices they did not agree with in particular in relation to their dress and diet.
The mother withheld the children from the father in February 2014 for three days. On interview with the family consultant, the father said that following this incident he convinced the mother to let the children visit him, and he then withheld the children from her until she agreed to return to the shared care arrangements.
On 28 January 2015, the child C, then nearly 9 years of age, disclosed to the father that the mother’s partner, Mr E had been touching her inappropriately. C told the family consultant that Mr E had “put his hand up her and B’s shorts and also touched their bottom.” Both B and C stated that they had reported this behaviour to the mother, but did not believe that the mother had told Mr E to stop because he had continued with his behaviour.
The children have lived with the father since around January 2015.
On 1 February 2015 a provisional Apprehended Domestic Violence Order (ADVO) was made for the protection of C and B from Mr E. On the same day, the mother attended the father’s home to see the children. The father told the family consultant the visit had not gone well and the mother “interrogated” the children about the allegations of sexual abuse.
The father reported to the family consultant that prior to March 2015 the mother had continued to request to see the children but the children had refused these visits. The father also stated that the mother had dropped off all the children’s belongings at the maternal grandmother’s house in April 2015.
The ICL notes in her Case Outline that the ADVO was withdrawn by police in June 2015, although this is not contained in the father’s evidence and no records were tendered to the Court.
In November 2015, the mother was due to give birth to her child with her partner Mr E.
Parenting
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(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.
(2) 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).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the children.
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the children of having a meaningful relationship with both of the children's parents; and
a)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
It is evident that the children have an important relationship with their father. The father has been their carer in an equal shared arrangement from 2009 and more recently their primary carer since 2015.
The importance or significance of the children’s relationship with the mother is less clear. The family consultant was of the opinion that the children described a positive relationship with their mother historically. However, the children, particularly B and C “expressed a feeling of being abandoned by their mother”. The family consultant also opined that “[i]t appears possible that should [the mother] show a commitment to spending time with, and prioritising the children’s needs, that the children may be open to spending time with her again”. However, the mother does not appear to have made such efforts and has not been in contact with the children since March 2015. In the circumstances, it can be inferred that the children’s relationship with the mother is not currently “meaningful”.
The father alleges that the mother’s partner, Mr E sexually abused the children B and C. On interview with the family consultant, both B and C reported that the mother’s partner had touched them inappropriately and expressed distress at their perception that the mother did not keep them safe from abuse. The allegations raise serious concerns as to risk in the mother’s household. The mother’s non-engagement in the proceedings in the light of the allegations also raises concerns.
It is appropriate that the children not come into contact with the mother’s partner.
Additional considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are as follows:
Any views expressed by the children and any factors that the court thinks are relevant to the weight it should give to the child’s views
In interview with the family consultant, B reported having a good relationship with her father. C and D expressed they “liked everything” about their father. The family consultant was of the opinion that the children, particularly B and C had “mixed feelings” about their mother.
B, the eldest child, reported to the family consultant that she had previously had a good relationship with the mother but that, despite missing her mother, she did not want to spend time with her. C was not sure if she wanted to spend time with her mother. She stated that she could not identify anything she likes about her mother, due to not seeing her mother in such a long time and because her mother was “different” due to changing her culture and becoming a Muslim. C and B expressed distress that their mother did not keep them safe from abuse by her partner.
D stated that he did not like anything about his mother and that he disliked that his mother “does not like me” and that she was a Muslim. He said that if the Judge said that he had to see his mother again, he would tell the Judge “No thank you”. The family consultant was of the opinion that his understanding of the current situation appeared to be limited.
The children in this matter are not of tender years. Weight should be afforded to their wishes about spending time with their mother in determining their best interests. However, to the extent the children’s views are reflective of the fractured relationship with their mother; they are indicative of any time with the mother being supported or supervised, and the father ensuring the children are able to continue to access counselling and other services.
The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
As discussed, each of the children reported having a “good relationship” or “liking everything” about the father. The father has been the children’s primary carer since early 2015 and it can be inferred that the children each have an important relationship with the father.
The children all identified their father’s partner Mr F Masters as part of their family and reported that they had a “good relationship” or “liked everything” about their step-father.
As discussed above, the children have a fractured relationship with their mother, and have had no contact with her since early 2015.
None of the children reported having a positive relationship with Mr E, and there are strong allegations that Mr E has abused two of the children.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long‑term issues in relation to the children; to spend time with the children; and to communicate with the children;
Until January 2015, both parents took the opportunity to spend time with the children. The father reported to the family consultant that prior to March 2015, the mother continued to request to see the children, but it does not appear that she has done so since. The mother did not take the opportunity under the order made on 16 March 2015 to spend supervised time with the children. Other than appearing on one occasion in August 2015, the mother has not participated in these proceedings to determine parenting orders for these children.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There is no evidence in relation to this consideration.
The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation
The orders proposed by the ICL and supported by the father would not result in any change, but only a continuation of the current circumstances.
The practical difficulty and expense of a children spending time with and communicating with a parent
On the father and ICL’s proposal, if the mother and father do not agree about the appropriate supervisor, the supervised time between the children and the mother will take place at a contact centre, with the mother to pay the costs of her time with the children. Nothing is known about the mother’s financial position and whether this will cause any practical difficulty or expense.
The capacity of each of the children’s parents; and any other person to provide for the needs of the children, including emotional and intellectual needs
There was no suggestion that there was a limitation in the father’s capacity.
The child D was diagnosed with Attention Deficit Disorder (ADHD), a learning delay, delayed fine motor skills and an eye condition. The father appropriately reported to the family consultant the treatment and support in place for D’s health and developmental needs, including medication and support at school.
The mother has shown little capacity to reflect on the emotional needs of the children. The family consultant was of the opinion that the children felt distressed being abandoned by their mother. The mother has not shown a commitment to spending time with or prioritising the needs of the children over her own or her partner’s.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother’s conversion post-separation is an issue in the children’s parenting arrangements. The children expressed to the father and the family consultant that the mother had insisted they participate in religious practices they disliked such praying, and changes in their dress and their food.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has been solely responsible for parenting the children since early 2015.
The mother has failed to demonstrate a positive attitude to the children or her responsibilities of parenthood. She appears to have failed to reflect on or prioritise the needs of the children and has not taken the opportunity to spend time with the children, or engage with the proceedings.
Any family violence involving the children or a member of the children’s family, including any family violence order;
The father reported to the family consultant that there was family violence between the mother and her partner. He stated that he was aware that Mr E had hit the mother a couple of years ago, but provided no details of this incident. As discussed earlier, there are also allegations that mother’s partner, Mr E sexually abused the children B and C and an ADVO was made on February 2015 for the protection of B and C from Mr E.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Given that the mother has failed to participate in these proceedings, it is unlikely that making the orders as sought by the ICL and supported by the father would lead to the institution of further proceedings.
The presumption: equal shared parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In this matter, the father and ICL propose an order that the father hold sole parental responsibility. The father has solely made decisions for these children since at least March 2015 and it appears that the mother has not sought to spend time with the children since around this time. The mother has made very limited efforts to participate in the legal proceedings to determine the parenting arrangements and responsibility for these children. In these circumstances, the Court is satisfied that it would be in the children’s best interests for the father to hold sole parental responsibility.
Accordingly orders to be made as to the children’s parenting arrangements must be considered in the light of the best interest considerations.
Conclusion
In coming to a decision about what orders are in the children’s best interests the Court must balance the various considerations discussed. Having regard to both the primary considerations and the additional considerations set out in s 60CC, particularly having regard to the need to protect the children from harm, the nature of the children’s relationships and the attitudes to the responsibilities of parenthood the orders proposed by the ICL and supported by the father are in the best interests of the children.
Accordingly, the orders are made as set out at the forefront of these Reasons for Judgment.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 March 2016.
Associate:
Date: 3 March 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Natural Justice
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Procedural Fairness
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Remedies
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