MOORS & SOBEY

Case

[2018] FCCA 495

14 February 2018


FEDERAL CIRCUIT COURT OF AUSTRALIA

MOORS & SOBEY [2018] FCCA 495

Catchwords:

FAMILY LAW – Parenting – interim decision – recovery application – should the child return to her mother – cross-allegations of domestic violence – cross-allegations of drug use – mental health issues for both parties – mental health issues for the child – separation of siblings – whether there is an unacceptable risk of family violence in father’s home – whether it is inappropriate for equal shared parental responsibility to be applied – best interests of child.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode [2006] FamCA 1346

SS & AH [2010] FamCAFC 13
Marvel & Marvel (No. 2) [2010] FamCAFC 101

Applicant: MS MOORS
Respondent: MR SOBEY
File Number: NCC 298 of 2018
Judgment of: Judge Middleton
Hearing date: 14 February 2018
Date of Last Submission: 14 February 2018
Delivered at: Newcastle
Delivered on: 14 February 2018

REPRESENTATION

Counsel for the Applicant: N/A
Solicitors for the Applicant: Powe & White Family Lawyers
Counsel for the Respondent: N/A
Solicitors for the Respondent: N/A

ORDERS

  1. Today, the parties are to attend a child dispute conference with a family consultant pursuant to section 11F(1) of the Family Law Act 1975.

  2. The parties are advised that if a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:

    (a)The Order made by the Court; or

    (b)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.

  3. On receiving the report, the Court may make any further Orders it considers appropriate.

  4. The Court may make Orders under section 11F(2) :

    (a)On its own initiative; or

    (b)On the application of:

    (i)A party to the proceedings; or

    (ii)A lawyer independently representing a child’s interests under an order made under section 68L.

  5. The Respondent is granted leave to file his Response documents in the registry today.

  6. Pursuant to s.91B of the Family Law Act1975, the Department of Family and Community Service NSW is requested to intervene in these proceedings and with respect to same:

    (a)Leave is granted to Departmental Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been granted to the parties, their legal representatives and/or the Independent Children’s Lawyer;

    (b)The Department is requested to advise, in writing and within 14 days, whether they intend to intervene in these proceedings and in the event the Department indicates a desire to intervene orders shall, upon such intention being advised to the Court, be made in chambers:

    (i)Formally granting such leave and joining the Department as a party;

    (ii)Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material;

    (iii)Relisting the proceedings on short notice to allow further case management directions to be made.

    (c)IT IS NOTED that the children X born (omitted) 2004, Y born (omitted) 2011 and Z born (omitted) 2007 (“the children”) live with the Mother.

  7. By no later than 5.00pm on 16 February 2018 both parties shall submit themselves for hair follicle testing at an accredited clinic, with the parties to provide no less than three (3) centimetres (or such length as may be agreed between the parties) of hair for such testing, and the parties be restrained from taking any steps to interfere with the test result.

  8. Each party bear their own costs of such testing.

  9. Upon rising today the child X is to be taken to Level 2 of the Newcastle registry for the purpose of speaking with a Family Consultant to have the nature of the Orders explained to her.

  10. The child X live with the Mother on an interim basis, commencing immediately after the Family Consultant has spoken with her.

  11. The children live with the Mother.

  12. All of the children spend time with the Father supervised by (omitted) Contact Centre for a minimum of two (2) hours each alternate weekend or at such other time as arranged by the Mother, Father and Contact Centre.

  13. The parties contact (omitted) Contact Centre within 24 hours of today’s date to engage in an intake session.

  14. The parties comply with all reasonable directions of the Contact Centre.

  15. On 4 May 2018 at a time to be advised, the parties and the children are to attend a child inclusive conference with a family consultant pursuant to section 11F(1) of the Family Law Act 1975.

  16. The parties are advised that if a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with:

    (a)The Order made by the Court; or

    (b)Any instruction the consultant gives to the person; the consultant must report the failure to the Court.

  17. On receiving the report, the Court may make any further Orders it considers appropriate.

  18. The Court may make Orders under section 11F(2) :

    (a)On its own initiative; or

    (b)On the application of:

    (i)A party to the proceedings; or

    (ii)A lawyer independently representing a child’s interests under an order made under section 68L.

  19. The children X born (omitted) 2004, Y born (omitted) 2011 and Z born (omitted) 2007 (“the children”) are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

  20. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

  21. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

  22. The Mother do all things necessary to engage the child X with Head Space or such other organisation as soon as reasonably practicable with a view to assisting the child with her current mental health issues.

  23. The Mother authorises Head Space, any general practitioner or treating psychologist to discuss X’s mental health with the Father.

  24. The Mother have sole parental responsibility for the children on an interim basis.

  25. That a Recovery Order do issue authorising/directing the Marshall, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

    (a)to find and recover the child X born (omitted) 2004, and to deliver the said child to the Mother at (omitted) in the State of New South Wales, or such other place as the Mother and the person effecting such recovery agree to be appropriate; and

    (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

  26. That the Respondent Father, his servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the child from the mother’s care until further order of the Court.

  27. That the recovery order issued pursuant to Orders 25 and 26 herein lie in the registry until 9.00am on 14 February 2019.

  28. That the recovery order that lies in the registry will issue upon receipt of an email from the Solicitor for the Mother outlining the failure of the Father to comply with the Orders.

  29. The matter is adjourned to 9.30am on 4 June 2018 at Newcastle for directions hearing.

  30. Neither party discuss these proceedings in the presence or hearing of the children or discuss other family members in the presence or hearing of the children and the parties are to use their best endeavours to remove the child from the presence or hearing of any person talking about these proceedings or any other family member.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 298 of 2018

MS MOORS

Applicant

And

MR SOBEY

Respondent

REASONS FOR INTERIM JUDGMENT

Ex Tempore

  1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

  1. This matter comes before me by way of an application filed on 2 February 2018 by the Applicant Mother.  The application seeks a recovery order for X, born (omitted) 2004.

  2. The mother has standing to bring such an application pursuant to section 67T of the Family Law Act 1975 (Cth).

  3. The power to make a recovery order is found at section 67U, subject to section 67V.  Section 67V provides, when deciding whether to make a recovery order, the court must regard the best interests of the child as its paramount consideration.

  4. This is an interim hearing today.  In Goode & Goode[1], the Full Court set out at paragraph 82 a pathway to follow when deciding interim cases.  I will follow that pathway.

    [1] [2006] FamCA 1346

Background

  1. As I say, the mother seeks a recovery order.  The father, by way of his Response filed with leave today, seeks the following orders:

    a)that all three of the children, X, Z and Y, live with him;

    b)that the children spend time with the mother as agreed between the parties;

    c)that the mother be restrained from allowing the children to come into contact with her partner, Mr J, at all times the children are in her care; and

    d)that both parties are restrained from consuming illicit substances at all times the children are in their care and 12 hours prior to the children coming into their care.

  2. The allegations in this matter involve mutual cross-allegations of domestic violence, mutual cross-allegations of drug use, mental health issues for both parties and mental health issues for the child.

  3. As is often the case in interim hearings, almost all of the factual matters are in dispute.  I guess it is safe to say the parties agree that there are three children of their relationship. 

  4. The parties agree that the children lived with the paternal grandparents for a period of time.  The mother concedes that she used drugs up until March of 2016 and thereafter stopped using ice.

  5. It does not appear to be in contest that the father was jailed for an offence of malicious wounding committed upon the mother’s current partner, Mr J. It is not in contention that the father served 12 months in prison or thereabouts. 

  6. It is not in contention that there is currently an Apprehended Domestic Violence Order in place and in force protecting not only mother, but the children.

  7. It is not in contention that the Apprehended Domestic Violence Order now is subject to an alleged breach and that the father has been charged with that breach and that he is currently on bail requiring him to report daily and that the matter comes back before the court on 21 February.  The father says that he will defend those matters.

  8. It is not in contention that X, the child subject to the recovery order application and indeed to the orders sought by the father, is suffering some form of mental health issue. 

  9. It is not in contention that she has some fears and anxieties.  The mother says they are based around her fear and anxiety of the father; the father says they are based around her fear and anxiety relating to Mr J.

  10. It is not in contention that once the child came into the father’s care at a time when she was absent the mother and having a sleepover at a friend’s house.

  11. The mother says that the father is refusing to return the child and trying to persuade the child to live with him.  The father says the child wishes to remain with him because she has fears of Mr J.

  12. It is not in contention that the father took the child to (omitted) Police, wherein the child is alleged to have made a complaint against Mr J.

  13. The nature of that complaint seems to be contained in the Notice of Risk.  The Notice of Risk sets out that Mr J allegedly grabbed the child and manhandled her, and there is a further allegation that he placed his hand on the child’s thigh, and the child felt uncomfortable.

  14. Whatever the child told the police at (omitted), the police have interviewed Mr J.  As a result of that interview and their other investigations, the police have decided to take no further action. 

  15. That seems to be the agreed facts between the parties.

  16. In Marvel & Marvel (No. 2) (2010)[2], the Full Court said:

    ‘As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult, and often for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child.’

And in SS & AH (2010)[3], the Full Court said:

‘The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

[2] [2010] FamCAFC 101

[3] [2010] FamCAFC 13

The material

  1. The mother relies upon her Application, Affidavit and Notice of Risk all filed 2 February 2018.

  2. The father relies upon his Response, Affidavit and Notice of Risk all filed today with the leave of the court.

  3. There is also before the court a Memorandum under the hand of Family Consultant Ms F dated 14 February 2018.

Discussion

  1. There are three children of the relationship between the parties:  X, born (omitted) 2003; Z, born (omitted) 2007; and Y, born (omitted) 2011. 

  2. The mother alleges that the father was a perpetrator of family violence.  As I say, there is currently an Apprehended Domestic Violence Order in place and in force protecting the mother and children.

  3. The father was jailed after being found guilty of malicious wounding.  That offence involved the mother’s current partner as the victim, and the father was jailed between November 2016 until June 2017. 

  4. The father is currently charged with breaching the Apprehended Domestic Violence Order and will next appear in court on 21 February 2018 and, as I said earlier, is on bail as a result of the charge, reporting daily to the police.

  5. Upon the father’s release from jail, the parties entered into a parenting plan that provided for the children to live with their mother and spend time supervised at the (omitted) Contact Centre with their father.

  6. The father has not spent time with the children at the contact centre, as he has not undertaken the intake session.  He informed the Family Consultant that he would not spend supervised time at the contact centre, as he believed it was not in the children’s best interests.

  7. The child, X, went to the father on or about 25 January 2018.  This was without the mother’s consent.  Thereafter, the mother alleges that the father threatened the maternal grandfather.  The father says he “reminded the maternal grandfather that he was not welcome at his parents’ home.”

  8. The mother alleges that the father used drugs and has done so since he was 13.  The mother makes a concession against her interest that she used drugs also; however, she has not used ice since March of 2016.

  9. The children had all been living with the paternal grandparents until the second half of 2016.  The father says he was involved in that care; the mother does not agree. Thereafter, they came into the care of the mother, where they have remained.

  10. The mother admits to being admitted into (omitted), suffering from a drug psychosis, in March of 2016.

  11. The mother currently has a four-bedroom home, where she resides with all of her children and the de facto partner.

  12. The father alleges that the mother is a perpetrator of domestic violence and that she has a conviction of assault against him.

  13. The father took the child X to (omitted) Police since she has been in his care, where she made a report that the mother’s de facto partner, as I say, manhandled her and touched her on the upper thigh.  The complaint has been investigated, and no further action is to take place.

  14. The father says X reached out to him and wanted to stay with him as a result of her fear in the mother’s home. 

  15. The child has not attended school since staying with the father.  He has now enrolled her into a different school and gives some evidence that he is attempting to have the child attend school.

  16. The father says that the children were in his care until such time as the mother “stole them from him” in November of 2016 whilst he was on bail.

  17. The mother says she has attempted to engage the child with Head Space as a result of her mental health condition, and the father also gives some evidence that he is attempting, both through the school and others, to address the child’s mental health conditions.

The Law

  1. I must follow the legislative pathway.  As this matter involves parenting orders, Part VII of the Family Law Act, in particular section 60CC and section 60CA, are my paramount considerations.

  2. Section 60CA of the Family Law Act provides that is the best interests of the child that is my paramount concern.

  3. Section 60CC(2) sets out the primary considerations, and section 60CC(3) sets out the additional matters.

Section 60CG

  1. As I said earlier, there is an Apprehended Violence Order in place.  Section 60CG therefore applies.  That section provides:

    ‘(1)  In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

    (a)  is consistent with any family violence order; and

(b)  does not expose a person to an unacceptable risk of family violence.’

  1. The mother makes allegations of family violence and sets those out at paragraph 40 to 46 of her Affidavit. 

  2. Some of the matters that she raises are these.  First, she says the father has not spent time with X since he was released from jail in June 2017.  The father says X and he had been – sneakily seeing each other, I think, is the best way to put that.

  3. The mother says that the father started harassing X because she was not spending time with him and would send her numerous text messages, including one which she says said:

    ‘Go and kill yourself.  Go cut yourself.  I only have two daughters now.’

  4. The mother says on 12 October 2016, X showed her a message from her father that said:

    ‘On Friday, I am going to do my nine months jail, and do not ask me once to see my kids.  There is no more kids.  You get an AVO on me because you are a spiteful mutt, and it is your only way to break me.’

  5. A further message received on X’s phone that day said:

    ‘Just know when they want to me see me, like, they will.  I will not be around, and they will see how much of a dog you are.  If you think people in town will not fuck you up when I am gone ….. then again nobody liked you before.  Now every cunt hates your guts, me included, you mutt.  Rot in hell.’

  6. The mother says that in late June of 2016, X started refusing to go to school because, she says, she was scared of the father. 

  7. The mother says in August of 2017, when she moved to (omitted), the child was enrolled in (omitted) High School.  She says the child was attending and progressing well, and obviously a subpoena of the school will reveal whether that is true or not.  She says the child received several commendations and awards.

  1. However, in the final week of December 2017, she acknowledges that the child was suspended for smoking marijuana.  The mother says that is the first time she is aware that the child was smoking marijuana.  The father says that the child has told him that she got the marijuana from the mother’s current partner.

  2. The mother says that approximately three weeks ago she noticed some cuts that looked like paper cuts on the inside of X’s forearms.  She noticed then that there appeared to be some marks from some older cuts.  When asked about it, she says that the child told her:

    ‘I am depressed about the messages dad sends me.  I want dad to love me.  I want to see him, but I am scared of him.’

  3. The mother then gives evidence of taking the child to Dr A and having the child prescribed with antidepressant medication called Movox. 

  4. The father’s evidence is he has now taken the child to a different doctor, who has indicated that that medication is not suitable for the child.

  5. I pause here because it is quite apparent from any view of the material that X is very much torn between her two parents.  It is clear that X has been suffering from the effects of the behaviours of both parents for a very long period of time. 

  6. X is now 13.  X is now cutting herself.  In my experience, that is a clear sign of a child in psychological distress.  As to who is to blame ultimately for that psychological distress is perhaps immaterial.

  7. Both of the parents should take some responsibility.  Both of the parents have let their daughter down.  One of the parents has been violent in the past and, as a result, has been incarcerated by his own admission; the other parent has been a drug user in the past and has used drugs to the extent that it caused a psychosis in March of 2016 by her own admission.  Both parents make allegations against the other about drug use and family violence.  That is yet to be determined.

  8. But I can certainly, from the concessions made by both parties and from the undisputed facts, find that this child is suffering from psychological harm as a result of her parents’ dysfunction.  What else is impacting upon it I will decide at a final hearing.  But I want the parents to know that.

  9. Under section 60CG, I must ensure, in determining this matter, that the child is not exposed to unacceptable risks of family violence.

  10. The family violence order that is in place does not prevent the father having contact with the children.  It simply protects the children from being assaulted, threatened, harassed, stalked, intimidated by the father or having any of their property destroyed.

  11. There are allegations that the father is harassing X.  I do not know whether that is true or not.  I am told there are text messages that may or may not ultimately be before the court.

Primary considerations

The benefit of the child of having a meaningful relationship with both of the child’s parents.

  1. At this stage, it is too soon to determine whether there is any benefit for this child to have a meaningful relationship with either of her parents.

  2. They have both let her down.  They have both caused her harm.  They both need to address their own issues properly, openly, honestly and help me determine whether this child should have a relationship with either of them.

The need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.

  1. As the court said in SS & AH[4], where there are competing issues, I should be cautious.  I should make sure that the orders that I make are those orders that I consider are less likely to impact upon the children.

    [4] [2010] FamCAFC 13

  2. In addition, I must use my intuition.  I cannot find as a fact whether X will be subjected to psychological or physical harm from abuse or family violence in either home.  I cannot find that as a fact.

  3. But what I can do is use my intuition in deciding which one of those two competing proposals – that is, that there is abuse and family violence in the mother’s home, or there is abuse and family violence in the father’s home – I prefer on balance.

  4. The undisputed fact is the father has a history of violent offending.  The undisputed fact is the father currently has an Apprehended Domestic Violence Order against him protecting not only the mother, but the children.  And the undisputed fact is that the father is currently on bail for charges of breaching the Apprehended Domestic Violence Order.

  5. There is no evidence before me that the mother has committed a crime.  The father alleges that there is a conviction for assault.  I have not seen any evidence to support that.  I am not suggesting it is not true.  I have not seen any evidence to support that allegation.

  6. I must rely on the evidence that is currently before me, and the evidence that is currently before me allows me to use my intuition to find that it is more probable than not that this child may suffer from physical and/or psychological harm from being subjected to family violence in the father’s home.

Section 60CC(2A)

  1. Section 60CC(2A) provides that in applying the considerations set out in subparagraph (2), I have to give greater weight to the considerations set out in paragraph (2)(b).

  2. As I said earlier, I do not know whether this child will benefit from having a relationship with either parent at this stage, but there is no other choice.  There is no one else here saying, “We will take X into our care.  We will look after X,” so I have to determine which one of these two parents X should live with on an interim basis, and in doing that, I have to give greater weight to the need to protect her.

Additional matters 

Section 60CC(3)(a)

  1. There are no views of the child as yet.  That will be attended to. 

Section 60CC(3)(b)

  1. In terms of the nature of the relationship of the child with the child’s parents and any other person, again everything is in dispute.  I cannot make a finding of fact in relation to that.

Section 60CC(3)(c)

  1. Regarding the extent to which each of the child’s parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child, since the child has been in the mother’s care, unfortunately the father has been incarcerated until last year.

  2. In those circumstances, he could not participate in spending time or communicating with the child, but to suggest that it was anything other than his behaviour that caused that failure to participate would be ridiculous. 

  3. So I can find that the father has failed to participate as a result of his own actions.

Section 60CC(3)(d)

  1. In terms of the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents or any other child, X has sisters and a half-brother, all of whom she was living with up until 25 January.

  2. Separation from siblings is often considered not in the best interests of a child, and it is perhaps for that reason, amongst others, including the father’s view that the children are at risk in the mother’s care, that the father seeks for all of the children to live with him.

  3. Based upon the findings that I have made thus far, it is obvious that I am not going to order that X live with the father. 

  4. I am of the view that it is more probable than not that X would be best suited by living with her siblings.

  5. It is important, potentially, taking on board what the father says the child is saying, that X and the father spend time together.  That needs to be done in a safe environment.  There is a parenting plan in place providing for time to be supervised.  That is an appropriate protective measure for the child.

  6. I note the father told the Family Consultant that he does not think that is in the child’s best interests.  My view is it is, and I trust the father takes that on board.

Section 60CC(3)(f)

  1. In terms of the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, the history of this matter certainly suggests that both parents are lacking somewhat in their capacity to provide for the needs of the child both historically and potentially currently.  I say potentially currently because I cannot make a finding about the current circumstances.

  2. What I do know is that whenever a child is removed from their primary carer and then not given the opportunity to spend time with that primary carer, it can be harmful for a child, and for a parent not to realise that shows some lack of insight.

  3. Having regard to the nature of the conflict between these parents, however, that is a moot point at this stage, and whether it is a lack of insight or whether it is an appropriate protective measure by the father is yet to be determined.

Section 60CC(3)(j)

  1. I have already discussed family violence and the family violence order.

Section 60CC(3)(m)

  1. Regarding any other facts or circumstances that the court thinks is relevant, firstly the father makes an allegation that the stepfather, the mother’s current de facto partner, has abused this child physically and, by inference, sexually.

  2. Those allegations have been put properly to the police.  The police have conducted an interview.  The parties both agree that no further steps will be taken as a result of that interview.

  3. I can infer from that that there will be no charges laid.  As to whether the de facto partner is a risk to X or otherwise is still yet to be determined.

  4. The police require proof at a much higher level than this court does, so that matter still remains outstanding; however, based upon the nature of that allegation and the allegations relating to family violence and the evidence that I have already touched upon in relation to family violence as against the lack of evidence in relation to the allegation of abuse, I am satisfied that the appropriate protective measure is for X to be returned to the mother.

  5. Something else needs to be said.  This family has been dysfunctional for some time.  On the evidence of the mother, perhaps these parents have been dysfunctional since they were teenagers.

  6. The Department of Family and Community Services, if they have not been involved with this family, will most likely be involved very shortly. In those circumstances, I am going to invite the Minister to intervene in these proceedings.

  7. I want the parents to understand that does not mean I am inviting the Minister to come into these proceedings and take possession of the children.  What the Minister will do is work with the family. 

  8. At first instance, they have a charter to make sure that children are protected and a charter to ensure that children are engaging with both parents. 

  9. They can assist you if you wish for them to do that.  But I will invite them to intervene.  We will see what happens as a result of that.

  10. I think it is in the best interests of this child for some drug testing to take place, hair follicle drug testing, by no later than 5pm on 16 February 2018. 

  11. My standard order, which will be made, also includes that neither parent is to interfere with that drug test by cutting their hair, dyeing their hair or doing other things that they might conclude will interfere with the process.

  12. In light of what I am being told about X and X’s mental health, I am satisfied that it is appropriate for X to be present with a Family Consultant today, and I have asked one to stay back for this purpose, to discuss the orders that I have made so that X understands why I am making them and what is going to happen moving forward to put to ease her mind in relation to these orders.

Parental responsibility

  1. The mother seeks an order for sole parental responsibility.  The Act provides at section 61DA(3) the following:

    ‘When a court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied.’

  2. For the benefit of the parties, the presumption is this:

    ‘When making an 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.’

  3. What are the circumstances that I consider appropriate in this matter for the presumption not to be applied?

  4. It is quite clear that there is an intractable dispute between these parties.

  5. The Family Consultant says there are serious trust and communication issues.  The Family Consultant says and the mother says the mother is fearful for her safety as well the safety of her partner and children.

  6. The father says that he was assaulted by the mother.  The father alleges that the mother has a drug problem and a mental health problem.

  7. They are all factors which, in my view, lead me to be convinced that it would be most inappropriate to make an order for equal shared parental responsibility.

  8. If I were to make such an order, it would require these parents to communicate effectively for the benefit of all three children. 

  9. My assessment is, at the current time, that is not likely to happen, and that is likely to cause further conflict for all three of the children.

  10. The best interests of the children are my paramount consideration.  I said that from the outset. Accordingly I make the following orders.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Middleton.

Date: 8 March 2018


Areas of Law

  • Family Law

  • Evidence

Legal Concepts

  • Jurisdiction

  • Procedural Fairness

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

2

Goode & Goode [2006] FamCA 1346
SS & AH [2010] FamCAFC 13