MATTHEWS & LANEY

[2013] FCCA 1546

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATTHEWS & LANEY [2013] FCCA 1546

Catchwords:
FAMILY LAW – Consent of mother to orders sought by father – whether those orders are in the child’s best interests – refusal of court to make orders as sought by the parties as orders are not seen as in the best interests of the child.

Legislation:

Family Law Act 1975, ss.69ZT, 60CC, 60B, 60CA, 61DA, 67ZBB

Rice & Asplund [1979] FLC 90-725

Applicant: MR MATTHEWS

Respondent: MS LANEY

File Number: PAC 4815 of 2010

Judgment of: Judge Harman

Hearing date: 18 September 2013

Date of Last Submission: 18 September 2013

Delivered at: Parramatta

Delivered on: 18 September 2013

ORDERS

1. The Court declines to make the orders sought by the parties.

2. With the consent of the parties all outstanding applications and responses are dismissed and all issues are removed from the list of cases awaiting hearing.

3. The Order for the appointment of the Independent Children’s Lawyer is discharged.

4. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

5. Publish my reasons with respect to today’s listing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4815 of 2010

MR MATTHEWS

Applicant

And

MS LANEY

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for a young child, X, born (omitted) 2007 and who is accordingly now six years of age. 

2. The parties to the proceedings are X’s parents, being the Father, Mr Matthews who is the Applicant, and the Mother, Ms Laney who is the Respondent.

History of Proceedings

1. These proceedings were commenced by an Application filed 15 January 2013.

2. Prior to the filing of that Application the parties had attended Family Dispute Resolution in the form of a Legal Aid Conference which would appear to have occurred on or about 11 December 2012.

3. It is suggested that the parties both attended and made a genuine effort to resolve issues of dispute. Whether they had or had not resolved those issues is not apparent, but clearly, by the filing of the application 15 January 2013 some disagreement had arisen even if the matter had ever, in fact, been resolved in whole or in part.

4. When the Application was filed an attendance was made upon a Registrar in Chambers and leave was granted to serve short notice of the Application, presumably on the basis of suggested urgency.

5. Proceedings first came before the Court on 4 March 2013. At that time both parties were legally represented. Neither party is presently legally represented. 

6. On that first Court date an Interim Hearing occurred and as a consequence of that interim hearing, orders were made which saw X live with his mother and spend time with his father for a period each Wednesday and each alternate weekend from Friday to Sunday.  Time was to occur upon terms and conditions, namely:

   a)That such time occur in the presence of one or other of the paternal grandmother or a paternal aunt;

   b)That the child sleep at the home of one or other of the grandmother or Aunt;

   c)A prohibition on physical discipline; and,

   d)A prohibition against the child being brought into contact with firearms, knives or other fighting implements.

7. The proceedings next came before the Court on 7 May 2013 following the appointment of an Independent Children’s Lawyer. On that date there was no appearance by or on behalf of Ms Laney. The Court was asked to note that the parties would appear to have reached a resolution.  Such possible agreement was also apparent from the Child Dispute Conference Memorandum produced following an appointment 14 March 2013 which appointment Ms Laney attended and Mr Matthews did not. 

8. The Family Consultant was able to contact Mr Matthews’ then attorney, who indicated her understanding that the parties had reached an agreement and they were in the process of drafting consent orders.

9. One is given some insight into the basis of any suggested agreement at that time by an Annexure to an Affidavit of Mr Matthews filed 26 July 2013. The Annexure purports to be a handwritten letter composed and signed by Ms Laney, dated 14 March 2013 and which reads:

   I, Ms Laney, allow Mr Matthews and family full custody of X from 14 March to 14 April 2013 for reasons of stability from my end.  X, the family and I will be reassessed on the 14^th of April and if it is in the best interests, my son is to resume living with me.

10. There is then a handwritten amendment, whether in the same handwriting or not is not entirely clear, indicating:

    50 per cent – 50 per cent, Mr Matthews and family will have visitation rights as per court order from Friday – Sunday and school holidays during this time.  I wish to have visitation every second weekend from Saturday to Sunday and I wish to have phone conversation whenever I want.  Mr M is allowed visitation whenever he wants with the consent of Ms S or Mr Matthews.

11. The parties agree that time did not occur in accordance with that proposal by Ms Laney and that since 14 March 2013, when the child was delivered into the care of his Father, the child has lived with the Father and members of his family and has spent no time and had no communication with his Mother. 

12. The mother suggests today that she consents to the orders that are sought by the Father in an Amended Application filed by him on 26 July 2013 and to which I will turn shortly.

13. As a consequence of the mention 7 May 2013 the proceedings were adjourned to allow terms to be prepared. However, no terms eventuated and on the subsequent listing 27 June 2013 there was again no appearance by the Mother and the matter adjourned at the request of the Father for a lengthy period and to today.

14. An order was made on 7 May 2013 that the Mother appear in person today and advise the Court and the Independent Children’s Lawyer of the orders that were sought by her, if any. It was noted that if the mother did not appear today that the matter would, in all probability, proceed on an undefended basis and final orders may be made.

15. The Mother, as I have indicated, appears today. She indicates her consent to orders as sought. Those orders, if made, would be in the following terms:

    a. That the father have sole parental responsibility for the child.

    b. That the child live with the father.

    c. That the child spend no time with the mother.

16. Notwithstanding the prescriptive and restricted terms of those orders, Ms Laney confirms that she consents to the orders. Indeed she indicates in words to the effect:

    The father seeks those orders and I agree.  I just want to move on with my life.

Material Considered

1. Notwithstanding that the parties each indicate their consent to the orders, I have read and considered the documents that each has filed in the proceedings comprising:

   a)The Initiating Application filed 15 January 2013. That Application, when filed by Mr Matthews, sought that the parties have equal shared parental responsibility and that the child live with him and spend time with the Mother for various periods, including alternate weekends Friday to Sunday, half holidays and special events on occasions. Other than seeking restraints with respect to physical discipline and denigration, no other restraints, conditions or terms were sought.

   b)The Mother filed a Response, identified through the assistance of the Independent Children’s Lawyer, on 1 March 2013. That Response sought orders on a final basis for equal shared parental responsibility, for X to live with the mother and to spend time with the father at a supervised contact service and on an ongoing and presumably perpetual basis. The position which the Mother indicates she is now prepared to consent to is substantially at variance to the relief initially sought.

   c)An Amended Application filed 26 July 2013 and being the document in which Mr Matthews sets out the orders he seeks and which orders Ms Laney indicates she is prepared to consent to.

   d)An Affidavit of the Father sworn or affirmed 10 January 2013, filed 15 January 2013.

   e)An Affidavit of the Father sworn or affirmed 18 July 2013 and filed 26 July 2013;

   f)An Affidavit of Ms S also sworn or affirmed on 18 July; and

   g)The Affidavit of the Mother filed in these proceedings on 1 March 2013. 

Background to the dispute

1. When the proceedings were commenced and as ascertained from the Affidavit of Mr Matthews, the parties were separated, having separated in or about late 2009 or early 2010.  Thus, at the time of the separation of these parties X was a child of two and a half to two and three quarter years of age.

2. The Affidavit of Mr Matthews indicates (at paragraph 9), that up and until X was approximately six months old Ms Laney, the Mother, cared for him on a full-time basis. 

3. The Affidavit continues at paragraph 10, to indicate that when X was 6 months of age Ms Laney returned to work. 

4. The father continued to work at all times and it is suggested X was cared for by the Paternal Grandmother every day, this arrangement continuing through till the separation of the parties.

5. X is suggested to have commenced day care for two days per week when he was approximately two years of age, i.e., shortly before the separation of the parties. 

6. It is suggested that following the separation of the parties, suggested then to be in 2010, that the Mother moved out of the home and that X remained in the Father’s care for two days but was then collected by the Mother and X then lived with the Mother at the home of the Maternal Grandmother.

7. It is suggested that following an argument between the parties when X was approximately two and a-half years of age, X then commenced an arrangement of shared care so that he was in his Father’s care from Wednesday morning until Sunday afternoon each week and in the Mother’s care for the remainder of the week and that this arrangement continued until he was four years of age, when he then commenced primary school.

8. It is suggested that once he commenced primary school X commenced spending time with his Father each weekend from Friday to Sunday and was with the Mother during the week. School holiday time was shared between the parties.

9. That arrangement is suggested to have continued until 21 October 2012. The Father suggests that at that time the arrangement broke down and that, as a consequence, from that time and until the matter was before the Court in early March 2013, that he did not spend time with X. Presumably X was in the Mother’s full-time care.

10. Under the heading “Other Issues” the Father addresses a number of matters relating to the Mother’s suggested care of the child. 

11. The Father asserts that there was no violence between the parties and that they rarely argued. 

12. The Father asserts that the Mother was somewhat heavy-handed, if it might be so termed, in her discipline of the child and that she had a new boyfriend who was similarly heavy-handed.

13. It is suggested at paragraph 36 of that Affidavit:

    I have concerns about Ms Laney’s current partner because he is known as a drug dealer.  I have also observed Ms Laney to have lost a lot of weight since mid-2012.  I have concerns that Ms Laney is using drugs and drinking alcohol in X’s presence.

14. That is the extent of allegations raised regarding those issues and if one were to apply Rules of Evidence, either as a consequence of their application, notwithstanding the provisions of section 69ZT of the Family Law Act1975, or to place weight upon that evidence having regard to it probative value, there is little to it.

15. It is suggested that in late December 2012 a notification was made by the Father to the Department of Family and Community Services. The notification was on the basis of the concerns that he expressed regarding suggested drug and alcohol use.

16. The Mother’s material is far more resplendent with concerns and criticisms of the Father. 

17. The mother suggests that the Father has a significant issue with violence which has led him to be brought to the attention of the Police on a number of occasions. 

18. The Mother suggests that the Father has had difficulties with drug use for a significant period of time. It is suggested in her evidence, leaving aside for one moment, issues as to its admissibility or the weight that might be attached to it in light of its form, that the Father has used a number of drugs, including amphetamines. They are allegations denied by the Father but raised.

19. The Mother suggests that there has been no real involvement with the Department of Family and Community Services, although there has been Police involvement.  No doubt as a consequence of the allegations raised, a number of Subpoenas were issued by the Independent Children’s Lawyer and appropriately so, including a Subpoena to the Department of Family and Community Services, New South Wales Police and the child’s public school. None of that material was tendered in this hearing and thus, whilst it has been produced to the Court and presumably inspected, it is not in evidence.

20. The Mother specifically denies, at paragraph 54 of her Affidavit, that she or her partner consume alcohol in the presence of X. The mother denies that she or her partner take drugs at all. 

21. The Mother suggests a number of other concerns relating to members of the Father’s family which concerns I do not incorporate herein, but which were the suggested basis of the mother’s concern when filing a Response proposing supervision of time. 

22. The Mother also makes allegations, similar to those of the Father with respect to her, that the Father has been somewhat inappropriate and heavy handed in discipline of the child. 

23. The mother suggests that there have been difficulties with respect to X and his behaviour since the age of approximately two years, corresponding roughly with the separation of the parties and that as a consequence he had been referred to and assessed by a school counsellor, a Report by that person being Annexure ‘D’ to the Affidavit.

24. It is indicated further that a referral has been made to a psychologist as a consequence of concerns and a possible diagnosis of ADHD raised with the Mother.

25. The Mother also raises the suggestion at paragraph 70 of her Affidavit:

    My new partner is a calm and positive influence on X and in particular has strong moral values and a strong bond with X.  He operates two successful businesses and has never met the father.  He is strongly against drugs. On the other hand, Mr Matthews smoked marijuana prior to our marriage until my pregnancy with X, thereafter he took ecstasy and speed.  I am not aware of whether he continues to take those drugs or the frequency that he does, if he does.

26. It is suggested the Father has an addiction to prescription medications, as detailed in that paragraph, as well as difficulties with use of alcohol.  Again, they are not raised to suggest that they are accepted as proven fact. The allegations are raised by the Mother and presumably the basis or part thereof upon which she was advised and thus sought orders for supervised time.

27. All of those allegations remain at large and have not been determined by the Court.  They are, however, allegations of some significance and importance, particularly as regards the orders which the Court is now asked to make.

28. The Father’s two further Affidavits, one by he and one by the child’s aunt, suggest that the Mother voluntarily placed the child with the Father and that since that time, as already indicated, has not sought to spend time or communicate with the child on any basis, notwithstanding the contents of her letter 14 March 2013 recited above.

29. It is also suggested in the Paternal Aunt’s Affidavit at paragraph 11 that on 16 June the Mother telephoned the Aunt and said to her words to the effect:

    Listen, I have been very bad. I am a bad mother. I am a slut. I am a whore. I have done things in front of X that I can’t even tell you about. I have slept with men in front of X. X doesn’t deserve someone like me in his life and I no longer want to be part of his life. He is better off with you guys. I feel disconnected from X. I have made up my mind, I don’t want anything to do with X.

30. Without accepting the basis of the suggested position, that evidence is consistent with the position that Ms Laney advances to the Court today.

31. The issue that arises is, thus, whether the orders sought by Mr Matthews are to be made by consent, whether in whole or in part, or at all.

32. In determining that issue I propose to consider the legislative pathway in full. One would not be required to do that with respect to an order made by consent and by reference to section 60CC(5) of the Act. However, in the circumstances and having regard to the issues which arise (i.e. whether orders are made at all), I propose to follow that pathway in its totality.

Legislative Pathway

1. I am obliged to commence with the objects and principles set out in section 60B which I incorporate herein:

   (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).

2. The objects and principles, particularly the principles in subsection (2), create rights for this child.  They include and commence with the statement that:

   “….except when it      is or would be contrary to a child's best interests….children have the right to know and be cared for by both their parents…a right to spend time on a regular basis and communicate on a regular basis with both parent…and…. parents jointly share duties and responsibilities….. and….should agree about future parenting.

3. The orders proposed by these parties, absent evidence demonstrating the rights created thereby are contrary to the child’s best interests, do not fulfil those rights.

4. In turning to section 60CA the Court is reminded that in all that is done the child’s best interest is of paramount consideration.

5. I am then obliged to consider whether the presumption of equal shared parental responsibility as set out in section 61DA applies, and if it does apply, consider whether it is rebutted.

6. These are proceedings in which final orders are proposed, thus subsection 3, dealing with interim proceedings is not relevant.

7. The presumption applies unless the Court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse of the child (or another member of the parents’ family or another child) or has engaged in family violence. 

1. If the presumption applies it can be rebutted on the basis that the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

2. The evidence that is presented and relied upon by the parties is that to which I have referred. The parties have not directed the Court’s attention to that material, nor sought that the Court consider any material. However, in the context of the orders sought and their effect, to completely excise a parent from the child’s life, I am satisfied that notwithstanding that the parties have not sought to rely upon that material that it is appropriate that it be considered and it has thus been considered.

3. Based on the allegations that are raised, if either party sought to agitate them and thus findings of fact were required, I could not be satisfied that the presumption applies.

4. Neither party seeks to agitate those allegations, nor urge the Court to make findings of fact. However, and perhaps of greater importance, neither party retracts the allegations.  If that were to be suggested I would require that the party seeking to so retract the allegation do so on oath.  Neither has.

5. A party cannot make serious and profound allegations of the other, allegations that suggest unacceptable risk to a child, and then expect the Court to simply ignore those unretracted allegations and make orders by consent simply because they ask the Court to do so.

6. Any order made by the Court is an exercise of the Court’s discretion and must, accordingly, be firmly founded in the Court’s satisfaction, by reference to available evidence, that the order is in, meets and serves a child’s best interests. The Court is not a rubber stamp.

7. Lest it be suggested that the Court’s refusal to make the orders the parties seek by consent is an unacceptable example of a “nanny state” approach I make this clear. The parties are, within the bounds of decency and public expectations as to appropriate parenting, at liberty to make and implement such decisions as they desire. They can do so by mutual agreement or Parenting Plan and without the need for any approval by this Court.

8. Once parents invoke the Court’s jurisdiction then they must be prepared to demonstrate and satisfy the Court that the orders they propose are in a child’s best interests. If they cannot the Court may decline to make the orders they seek even if the orders proposed with the consent of all parties.

9. Based on the evidence filed by the parties and each of them I cannot be satisfied as to whether the presumption applies or does not apply, nor could I be satisfied that it is or is not rebutted. Neither parent seeks to present evidence, (other than their consent), that would suggest that the orders or the presumption of equal shared parental responsibility is in the child’s best interest.

10. If one were to assume for one moment that the presumption did not apply, that is not the end of the exercise. 

11. Whether the presumption applies or not does not bind the Court’s exercise of discretion in determining what order for parental responsibility should be made and whether it should be equal and shared, whether it should be delegated to each parent at such times as the child is in their care, or as is proposed by consent in this case, whether it is an order for sole parental responsibility in favour of a parent. Thus I propose to leave that issue at large and turn to section 60CC.

12. I am obliged to commence with the primary considerations in section 60CC(2) being the benefit to the child of having a meaningful relationship with each parent as well as the need to protect the child from physical or psychological harm.

13. Each party raises allegations, which, if agitated and ultimately found proven, would suggest some concern as to the child’s need for protection.  It is on that basis that the independent children’s lawyer was appointed.

14. As regards the benefit to the child of having a meaningful relationship with each parent, it is to be noted that Ms Laney seeks to disavow herself of that opportunity, let alone that actuality.  She seeks to consent to a positive order that she have no time or communication with the child and she has taken no step since 14 March, it would seem, to pursue such a relationship.

15. The basis for that is not entirely clear. Ms Laney indicates that she is “getting her life in order” and that she has matters that she is attending to and thus considers it in the child’s best interest to not be involved in the child’s life at this time. I am also conscious that the mother raises allegations, although she does not seek to press them or lead evidence with respect to them today, but which were taken into account and considered, at least in part, as the basis for appointment of an Independent Children’s Lawyer. Each parent alleged that the child was endangered in the other’s care.

16. Ms Laney may now disavow that position through the consent she provides to the orders the father seeks, which orders would have the effect of the child not only living in his care, (an arrangement which has come about, it would seem from the mother’s actions, notwithstanding the allegations that she had raised), but for there to be no scrutiny of that arrangement by her as she seeks to have no involvement.

17. It might be suggested that one could infer from the mother’s change of position and the orders to which she now offers her consent, that the allegations she raised can and should be discounted and disregarded.  However, I am not satisfied that is an appropriate course.

18. I make clear that the allegations each parent makes are not accepted or found to have any foundation in fact. But they are allegations that were raised, on the part of Ms Laney, as the basis of an application for supervised time on an interim and final basis. The allegations of Ms Laney contains and include suggestions of substantial and significant violence perpetrated both towards her, the child and others.

19. The allegations of Mr Matthews were and are such as have caused an application by him for a significant change in the child’s arrangements but stopping short of suggesting that no time should occur.

20. By reference to section 67ZBB the Court has an obligation to take prompt action in relation to such allegations and it is on that basis that an expedited child dispute conference was arranged, albeit that only one party attended it, and, an Independent Children’s Lawyer was appointed.

21. What has brought the matter to its present position and the mother to her present state of mind whereby she suggests her consent to not only the child living other than in her care but a prohibition on her contacting the child, is unclear. 

22. The mother intimates to the Court that she is getting her life in order and presumably thus recovering from difficulties known to her and no one else. 

23. The consent of the parties does not derogate from the Court’s obligation to consider as a primary consideration the benefit to the child of having a meaningful relationship with both parents. The mother consents to its termination.

24. In turning to the additional consideration:

Views

1. There is no evidence of the child’s views.

Nature of the child’s relationship with each parent and other persons

1. There is nothing to suggest the child does not have an entirely abundant and appropriate relationship with the Father, notwithstanding the mother’s allegations in her one Affidavit to the contrary and which suggests, further, an absence of safety in the child’s relationship with the Father.

2. There is nothing with respect to the child’s present relationship with the mother. Clearly, on the basis of the Father’s own evidence, as to what care arrangements had applied for the child up to and including 14 March 2013, this child has spent significant time in the Mother’s care, as well as the care of many others, including the father and members of the paternal family. One would think the child must have developed a relationship of some importance with the Mother.

3. There is some doubt cast upon that by the suggested comment by the Mother, as reported by Ms S, that the Mother does not feel “connected” with the child, whatever that may mean. However, whether the child feels connected with the Mother or not, and thus the nature of the child’s relationship with his Mother is a different matter.  It has not been assessed and there is no evidence that enables its assessment. Such evidence would be required before an order was made sanctioning the termination of that relationship.

The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spending time or communicating with the child

1. Clearly Ms Laney has abandoned those roles in this child’s life since 14 March and proposes to continue to do so on a perpetual basis. 

The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. There is no evidence with respect of this factor. One can infer from the evidence that the Father has sole responsibility practically and financially.

The effect of change in the child’s circumstances, including by separation from either parent

1. The Court has no evidence as to the impact upon this child of the termination of the relationship with his Mother, which otherwise, from all available evidence including that of Mr Matthews at the time the proceedings were commenced, was healthy. 

2. In the absence of that evidence it is difficult, indeed impossible, to contemplate how the Court could be satisfied that the orders proposed, particularly the order that the Mother have no time or communication with the child, would be in the child’s best interests.

Practical difficulty and expense

1. I will deal with this as part of the consideration of section 65DAA(5)

Capacity of each parent and others to provide for the child’s needs, including emotional and intellectual needs

1. That is perhaps a fundamental and pivotal issue in this determination, not only as to what order should be made but as to whether any order should be made.

2. There is no evidence as to an incapacity on the part of Ms Laney. That the parents believe, for whatever reason, and based on matters which are not contained within the affidavits they have filed, that there is such incapacity is, at best, implied.

3. There is no criticism of the mother raised by Mr Matthews other than as regards her attitude in the period from late 2012 until March 2013. Mr Matthews is not critical of her relationship with the child, her care of the child or her capacity to meet the child’s needs. The closest one comes to evidence of that nature is the suggested comments made by the Mother, treated as an admission against interests, that she has done things in front of X that she did not feel she could tell others about and that she did not feel that she had much to offer the child and thus the child would be better off with the Father.

Capacity

1. I have some real concern as to the capacity of each parent to insightfully and with a focus upon their child and his emotional and intellectual needs, to make decisions reflective of an abundant capacity.

Maturity, sex, lifestyle and background

1. This little child is six years of age. The parents suggest, each consenting to it, that one parent, a parent of whom no criticism is raised, (other than having unilaterally terminated the child’s relationship with the father for some months and suggested to have been for no good reason), be cut from the child’s life for ever. 

2. The Application and the orders sought, whilst not so phrased, would have the effect of being a defacto adoption. I am not satisfied that those orders could be made without compelling evidence that suggests that the order is an appropriate exercise of the Court’s authority and an appropriate exercise of jurisdiction and importantly, in the child’s best interests.

Aboriginal or Torres Strait Islander child

1. It is not suggested that the child is from an Aboriginal or Torres Strait Islander background.

The attitude to the child and responsibilities of parenthood demonstrate about each parent

1. I have real concerns as to the attitude to parenting that these parents demonstrate by presenting to this Court their consent to the orders which they propose. They are orders which, based upon the evidence they have each filed to date, are inexplicable and unsupportable.

2. Whatever difficulties Ms Laney may suggest she is recovering from and needs to recover from so as to “get her life in order” are not before this Court. She has denied the allegations made by Mr Matthews as regards her and her partner and drug use. 

3. There is a suggestion of sexual promiscuity but that would be of itself and as presented in the evidence, no basis to otherwise completely terminate an otherwise healthy relationship.  Thus I have concerns as to the attitude of both parents equally.

Family violence

1. There are significant allegations of family violence but neither party seeks to press those allegations and neither presents any evidence with respect to them. However, they remain issues of significance.

Family violence orders

1. There are none extant. 

Whether it is preferable to make the order that will least likely lead to the institution of future proceedings

1. This would potentially support the orders that are sought by the father.

2. If the orders are made it may be for Ms Laney to overcome a Rice & Aspland [1979] FLC 90-725 threshold and return to the child’s life. Indeed the Father has been clear that he wishes the orders to be made so that the mother does not and cannot change her mind in the future regarding her involvement with the child and if she does that he perceives there would be some risk or hurt to the child. Upon what evidence that is suggested to be founded is not abundantly clear.

3. Whilst this factor would appear to provide some support to orders being made it does not assist in the fundamental issues as to whether any exercise of discretion should occur.

Other facts or circumstances

1. I will incorporate herein relevant considerations pursuant to section 65DAA(5). 

2. The parties do not appear to live any significant distance apart. Their current and future capacity to implement an arrangement for the child spending time with each other is not criticised.

3. There would not appear to be any barrier or impediment to any arrangement, from the evidence the parties have presented to the Court today, other than the lack of willingness of the parties to pursue or facilitate an arrangement whereby this young child can continue to have a healthy relationship with both parents and to do so safely. 

4. The parent’s current and future capacity to communicate is unknown although clearly they could communicate sufficiently well to negotiate consent to arrangements for the child. 

5. Importantly, having regard to the impact of the arrangement on the child, I am satisfied, as I have already made clear, that there is no evidence whatsoever as to the child’s views regarding the arrangements proposed, i.e., the complete and permanent termination of the child’s relationship with the Mother and presumably through termination of that relationship, termination of any relationship with the maternal family.

6. There is no evidence that positively satisfies me and upon which I could base a finding that such orders are in the child’s best interests. 

7. The fact that the parents’ consent to an order does not compel the exercise of this Court’s jurisdiction, nor invoke it. 

8. The Court’s discretion resides with the Court. It is to be exercised by the Court, as the legislation mandates, on the basis of the child’s best interests being paramount and not simply to bring about the conclusion of proceedings. 

9. The making of orders is not an administrative process but a judicial process. It is the obligation of the parties to persuade the Court that the orders to which they consent and which are recommended to the Court by their consent is an appropriate exercise of jurisdiction. 

10. The Court must be positively satisfied that the orders proposed are in the child’s best interests. Neither party has sought to adduce evidence that would so persuade the Court and each has failed in their obligation. 

11. In those circumstances and for the above reasons I am not satisfied that I can safely make the orders that are proposed, albeit that both parents consent and urge that they be made. 

12. That is not to suggest for one moment, less it be inferred from my refusal to make those orders, that the child’s needs are not being met by the Father. Whether that is so or not is simply not able to be determined on available evidence. There is no evidence of present arrangements save the father’s affidavit of 28 July which suggests that the child is in his care and has been voluntarily placed there.

13. The Father’s Affidavit evidence does not give any detail upon which I could be satisfied that the arrangement, in its totality, including his relationship with the Mother and Maternal family, meets the child’s present or future needs.

14. Under the heading “Current Circumstances”, the Court is advised that the child lives with the Father, that the Father and child live with the Father’s parents and the Father’s brother, that the child has his own room, (equipped with bed, toys and clothes), attends a particular school and has settled well into that school. That is the extent of information that the Court has with respect to current arrangements. 

15. What is absent is any evidence as to how the child has responded to what might be appropriately described as his abandonment, or at least the mother’s abandonment of her relationship with him, if that is what has happened.

16. There is no suggestion and thus no evidence, that the relationship is precluded but the Court is not aware of the factors and circumstances that have given rise to the mother’s position. Even if the Court were aware of those circumstances I could not be satisfied, due to the absence of evidence and as required by section 60CA, that the orders are in the child’s interests and treat as paramount his best interests.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  28 October 2013