MOSBY & DAWSON

[2015] FamCA 226

FAMILY COURT OF AUSTRALIA

MOSBY & DAWSON [2015] FamCA 226

FAMILY LAW – CHILDREN – Undefended – where the father was the applicant – where the father filed a notice of discontinuance – where father failed to engage in the proceedings – where the children live with the mother – where one child has special needs – where mother seeks sole parental responsibility of all children – where there has been family violence – best interests of the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC
Family Law Rules 2004 (Cth) r 16.07

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Mosby

RESPONDENT: Ms Dawson

INDEPENDENT CHILDREN’S LAWYER: Ms Jarman

FILE NUMBER: PAC 2571 of 2013

DATE DELIVERED: 2 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 December 2014

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT:	John Spence & Associates
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Jarman of Legal Aid NSW

Orders

1. All previous parenting orders in relation to B born … 2005, C born … 2007 and D born … 2010 (“the children”) are discharged.

2. The children are to live with the mother.

3. The mother is to have sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosby & Dawson 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 2571  of 2013

Mr Mosby

Applicant

And

Ms Dawson

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of the three children of Mr Mosby (“the father”) and Ms Dawson (“the mother”).  The children are B who is nine, C who is seven and D who is four (“the children”).

2. The parents commenced living together in 2003.  The parents’ relationship was characterised by family violence perpetrated by the father.  The parents separated on numerous occasions throughout their relationship and on a final basis on 8 June 2011.

3. All three children currently live with the mother.  The father has not spent time with the children since November 2011.

4. The proceedings were commenced by the father in June 2013 in the Federal Circuit Court and were subsequently transferred to the Family Court in December 2013, for possible inclusion in the Magellan program.  In January 2014 the matter was allocated into the Magellan Protocol and a Magellan report was ordered.

5. The father then filed a Notice of Discontinuance on 19 August 2014.

6. The mother continued to press for the orders sought in her Response filed on 6 August 2013.

7. The matter was heard on an undefended basis on 15 December 2014.

8. My task is to determine whether the orders as proposed by the mother and supported by the Independent Children’s Lawyer or some other orders, are in the best interests of these three children.

the proceedings

1. These proceedings concern the three children of the mother and father.

2. The mother is currently aged 32 and the father is currently aged 33.  The parties first met in September 2000 and commenced living together in 2003.  The parties separated on several occasions during the relationship and separated on a final basis on 8 June 2011.  The parties have lived at various places throughout New South Wales and with different family members or friends, either as a couple or separately.  The parties’ relationship was characterised by instances of family violence perpetrated by the father towards the mother, often in the presence of the children.  Some instances resulted in the father being charged and convicted for assaulting the mother.  There were also several Apprehended Domestic Violence Orders (“ADVO”)s in place to protect the mother.  The father has also been convicted of contravening several of these ADVOs.  The last time the father spent any time with the children was in November 2011.

3. These proceedings commenced in June 2013 when the father filed an Initiating Application in the Federal Circuit Court.  The father sought to have sole parental responsibility for all children and that they all live with him.  He sought an order that the mother spend time with the children at a time and place as deemed suitable by the Court.

4. The mother then filed a Response and a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 6 August 2013.  She sought to have sole parental responsibility for all three children and that all the children live with her.  She did not seek any orders in relation to the children spending time with the father.

5. The father then amended his Application and also filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 13 August 2013.  He sought that the parents have equal shared parental responsibility for the children and that the children live with the mother and spend time with him on alternate weekends, and half of the school holidays.  He also sought to have liberal telephone communication with the children.

6. The proceedings were transferred to the Family Court on 10 December 2013 for possible inclusion in the Magellan program.

7. In January 2014, the matter was allocated into the Magellan Protocol and a Magellan report was ordered.

8. The Magellan Report was released on 25 February 2014.  The Department of Family and Community Services (“the Department”) noted that they had received 21 reports in relation to the three children between May 2008 and January 2014.  The report notes that there had been a series of allegations in relation to both parents and also allegations in relation to the mother’s new partner, Mr E.  The report also notes that the mother was sexually abused by her father and uncle as a child and that she is allowing the children to have contact with the maternal grandfather and uncle, which leaves the children at risk of harm.  Despite this, the Department concluded that they would not intervene in these Family Court proceedings.

9. The matter was again before the Registrar on 30 June 2014 and interim consent orders were made for the children to live with the mother and for the mother to have sole parental responsibility for them.  The matter was adjourned to 18 August 2014 before a Registrar for consideration to be given to the appointment of a single expert or the ordering of a Family Report.

10. On 18 August 2014, the Registrar made orders by consent that the father intends to file a Notice of Discontinuance and that the matter will, therefore, continue on an undefended basis.  The father was ordered to file a Notice of Discontinuance within seven days.  An order was also made in relation to the father’s liability for the costs of the Independent Children’s Lawyer.

11. The father filed a Notice of Discontinuance on 19 August 2014.

12. On 22 September 2014, orders were made for the parties to file and serve any amended Application or Response, and affidavits upon which they rely.  The matter was allocated two hours, and the parties were to approach the List Clerk for a date on the basis that the matter was to be heard in the father’s absence.  It was noted that the father had filed a Notice of Discontinuance and that he was not present on that day.

13. At the hearing, the mother sought to have her orders made as proposed in her Response on an undefended basis.

14. 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.

1. In my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.  It was the father who filed the Notice of Discontinuance, and thus he was given the adequate opportunity to proceed with the matter.

2. In light of the matter proceeding on an undefended basis, the father’s material will not be read.

The Evidence

1. The mother filed an affidavit in support of the orders sought by her on 10 December 2014.

2. The mother deposes that throughout the parties’ relationship the father was violent to her, generally after the consumption of a large volume of alcohol.  These allegations of violence towards the mother are supported by the father’s criminal record, which was tendered in the proceedings.  It shows a history of increasingly serious assaults on the mother and also on his current partner.

3. There was an incident in 2002 where the father was violent to the mother at the maternal grandparents’ home.  The father’s criminal history shows that he was charged and convicted of common assault on the mother in January 2003.  The father received a bond for 12 months not to assault, molest, threaten, harass or otherwise interfere with the mother.

4. The parties then reconciled and commenced living together in 2003.  Shortly after further instances of violence, the mother asked the father to leave and her friend moved into the home.

5. The parties’ first child, B, was born in 2005.  At this time, the parents were not living together.

6. Following an incident where the father shouted at the mother to make the child quiet, the mother left the home and obtained an ADVO against the father on 28 July 2005.

7. The father was charged and convicted of contravening an ADVO order in May 2006.

8. In July 2006, the parties attended Legal Aid mediation in relation to the father spending time with B.  The father complied with the agreement for three weekends only.

9. The mother says she was accommodating in allowing the father to spend time with the child when he requested to do so.

10. On 5 November 2006, the father was charged with maliciously inflicting grievous bodily harm upon the mother.  He was sentenced to a term of imprisonment.

11. The parties were again separated at the time their second child, C, was born in 2007.

12. In early 2010, whilst separated, the father spent time during the day with the children on the weekends.

13. The parties’ third child, D, was born in 2010.

14. Following the birth of the third child, the father continued to be physically and verbally abusive towards the mother.  The father slept downstairs and the mother and the children all slept upstairs in a locked bedroom.

15. In April 2011, the father’s mother committed suicide and this affected the father.  He began drinking alcohol heavily.

16. In June 2011, the mother organised a 30^th birthday party for the father.  On this evening the father became heavily intoxicated, and threatened to assault the mother’s brother.

17. On 8 June 2011, the mother arrived home from work and found the father asleep on the lounge with a bottle of beer on the floor beside him.  The mother woke the father, who then became angry and assaulted the mother, by hitting her on the back of her head with a plate and he also head butted her.  Documents produced under subpoena from the NSW Police indicate that the mother sustained some injuries from this event, including bruising to her right leg, swelling and bruising to both her eyes and the bridge of her nose, and also that chunks of hair were ripped out of her head.  As I understand it, the children were exposed to this incident as they said “don’t hurt my mummy” to the father.  Following this incident, a further ADVO was issued against the father.

18. On 9 June 2011, the father was charged with an assault occasioning actual bodily harm, destroying or damaging property and contravening an ADVO.  The father received a term of imprisonment for the assault.

19. The mother and the three children subsequently moved into a home at Villawood.  Following this, the father spent time on a weekend with the older two children, as arranged between the parties.  The youngest child did not attend.  The father also babysat the children approximately five times at the mother’s home when the mother had a social occasion to attend.  The mother says that the father did not spend time with the children in her home after October 2011.

20. The mother met her new partner, Mr E in December 2011.  The mother and Mr E are still in a relationship and are currently engaged, but do not reside together.  The mother’s partner has two children from a previous relationship; they are aged seven and four.  They spend time with their father at the mother’s home on alternate weekends.

21. On 5 December 2011, the mother informed the father of her new relationship.  On this date, the father came to the mother’s home and began screaming at the mother’s new partner.  The children were present and were screaming for the father to “Stop it, Daddy.  Please stop it”.  The mother then removed the father from the home, locked the door and called the police.  Documents produced under subpoena from the NSW Police provide that on 11 December 2011 the father said to the mother, “before they [police] get there someone will be leaving in an ambulance”.

22. On 14 December 2011, the father was charged with contravening an ADVO.  He received a term of imprisonment in November 2012 for this offence.

23. Following this incident, the mother ceased contact between the father and the children.

24. In January 2012, the mother arrived home and her home had been broken into. The oven had been turned on and all hot water taps were running.  The only items stolen were a bottle of Bourbon and a memory card containing baby photos of the children.  The mother called the police.  The mother suspected the father did this.

25. In February 2012, the mother and her partner were home, along with the three children who were asleep.  At approximately 1.00 am the power was turned off and the mother heard the sound of glass smashing.  The mother immediately rang the police.  The mother opened the front door (leaving the screen door locked) and saw the father trying to get into the home.  The mother then shut the door and the mother’s partner went outside to calm the father down.  The mother says that she could hear her partner screaming out for help.  At this point the children were also awake and saw the father hit her partner.  The eldest child said, “He is here. Dad is here. We have to get out!”.  The mother observed the father and her partner wrestling.  The mother picked up a crow-bar she saw on the ground and ran into the house.  The police and ambulance then arrived.  The police arrested the father and the partner was taken to Hospital by ambulance.  As a result of this incident the partner suffered a broken hand and a cut to his head.

26. The father was charged with several offences relating to the incident in February 2012 to which he subsequently pleaded guilty.  He was charged with assault occasioning actual bodily harm on the mother’s partner, being armed with an intention to commit an indictable offence, destroy or damage property and contravening an ADVO.  For the offences of assault occasioning actual bodily harm, destroy or damage property and contravening an ADVO he received terms of imprisonment.

27. The mother has not had any contact with the father since the incident of February 2012.  Following the incident the mother and children moved home, the mother changed her telephone number and also changed B’s school.

28. Since the incident of February 2012, B has begun to have nightmares and is scared of the dark. He also has learning difficulties and attends a special class at school. He also attended speech therapy in 2009 and 2010, and also occupational therapy. The mother says that the father was not supportive in assisting the child with these problems and that the father often teased the child about his problems, especially his speech.

29. The Department produced under subpoena further information in support of the Magellan Report. Documents produced also provide extra information in relation to a report made by the father on 13 July 2012 to the Department. The material notes that on 13 July 2012 the father reported that in December 2011 he was on the phone to the mother and in the background he heard C let out a piercing scream. Later that day, the mother contacted the father and told him that C’s vagina was bleeding and that she was taking her to the doctor. The father also reported that the child told him “[Mr E] done it, mummy’s friend who is a big boy like you and has a hair cut like poppy’s”.

30. The material produced by the Department then notes that on 16 July 2012 information was received that C’s injury was from a scooter accident and the matter was not taken any further. In addition, the material notes that on 19 July 2012 the father was referred to an anger management group.

31. In March 2013, the father attended the children’s school and delivered presents for the children. The mother reported this to the Police and obtained an AVO.

32. On 1 November 2013 the father was charged with common assault. Documents produced by NSW Police provide that this was an incident between the father and his new defacto partner, Ms F. The documents indicate that Ms F and the father were arguing when both intoxicated and that Ms F slapped the father. The father then retaliated by head butting Ms F in the head, causing her to bleed from the nose. The father was then arrested, and made full admissions when in the custody of police officers. An urgent AVO was granted for the protection of Ms F following this incident.

33. The mother says the father is assessed to pay $430.00 per month by way of child support. The mother annexed to her affidavit a certificate from the Child Support Agency which states that the father owed the mother $1,012.29 as at 15 July 2013. The mother says the father is now in arrears of approximately $6,000.00.

34. The mother currently rents a four bedroom home and each of the children has a separate bedroom. The property is on the market and the mother has already been approved for a new home, which is also a four bedroom home. The mother continues to work five days per week and her income is supplemented by payments from Centrelink. The children all attend the same school, with the youngest child having commenced this year. The younger two children are progressing well at school.

35. The mother and her partner intend to live together following the finalisation of these proceedings and then to marry.  The mother says that the children get on well with Ms E and that they are excited at the thought of having him as a stepfather and already see him as a stable father figure in their lives. Mr E’s children spend irregular time with him and the mother. The mother deposes that when all the children are together that they get on very well.

36. Mr E provided an affidavit in support of the mother’s case on 10 December 2014. His affidavit mainly provides information relating to the incident in February 2012 where he was assaulted by the father. The partner also deposes that he has a good relationship with the mother’s children and that he spends between three and four nights per week at the mother’s home. The partner says that he treats the mother’s children as his own.

37. The NSW Police were subpoenaed to produce documents relating to Mr E, and her father (Mr G Dawson) and uncle (Mr H Dawson). The Police indicated there are no records held in relation to the named persons by the Child Abuse Squad. The mother relies upon this to support her contention that her uncle, father and partner do not have a history of child abuse.

Evidence from the children’s school

1. The children’s school produced counselling notes in relation to B under subpoena, which were tendered in these proceedings. B attended the school counsellor on numerous occasions and expressed concerns in relation to his safety at home and the ongoing uncertainty in relation to court proceedings.

1. The most recent interview noted in these documents was on 14 February 2013 where the counsellor noted that the child was doing well at school and was feeling safe at home.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting proceedings.

2. The objects are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. 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).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. The primary consideration of the need to protect the child from harm carries greater weight than the consideration of the child having the benefit of a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. However, the Full Court in McCall & Clark[1] approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].  Brown J in Mazorski & Albright said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [2] (2007) Fam LR 518

   [3] [2006] FamCA 994

4. Bennett J discussed the terminology in G & C and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

5. The Full Court also said in McCall & Clark at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

6. The children have not spent any time with their father since November 2011. Prior to this, the children’s time with the father has been clouded with violence towards the mother.

7. As can be gleaned from the documents produced by the police, the father is a very violent man and is often violent to those with whom he is in an intimate relationship.  The children have also been exposed to this violence over many years and have undoubtedly been harmed by that exposure.  The father has been charged and convicted, receiving several periods of imprisonment following incidents of his violence upon the mother and her partner.

8. The eldest child B, suffered nightmares following the incident of the father assaulting the mother’s partner in February 2012. The child’s school counsellor’s notes indicate that the child feels “unsafe” at home and “sad” by the looming uncertainty of these proceedings.

9. Evidence from NSW Police show that there have been 11 reports taken by police in relation to domestic incidents between the parties. As a result of these reports the father has been charged on eight occasions and six ADVOs have been applied for. The father has further been charged with instances of contravening an ADVO. There have also been two incidents involving the father being violent towards his new partner, Ms F, with Ms F being taken to Hospital following these incidents.

10. During the various periods of separation it appears that the parties attempted to reach agreement in relation to the father spending time with the children, however, the agreement was not often followed by the father.

11. The father presumably sought a meaningful relationship with his children by making his application to the Court. He initially sought to have sole parental responsibility and for the children to live with him. Following the discontinuance of his application in August 2014, it can be inferred that he no longer seeks a meaningful relationship with his children.

12. The children need to be protected from the environment of violence. The father has shown that his new relationship is also characterised by instances of violence, and therefore it cannot be in these children’s best interests to be in this environment.

13. The allegations raised by the father against the mother’s partner, the maternal grandfather and maternal uncle, are denied by the mother. The letter provided by the police in response to a subpoena from the Child Abuse Squad, indicated that the maternal uncle and grandfather have not come to the attention of police.  The Magellan report noted the allegations of sexual abuse by the mother’s partner; however the material also notes that this injury was sustained from a scooter accident.

14. On the basis of the foregoing, in my view, it is not in these children’s best interests to have a meaningful relationship with their father.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. The children are still of a young age. The eldest child is now nine years old and also suffers from some learning difficulties. The mother deposes in her affidavit that she has provided the children with opportunities to spend time with their father and they have declined. B’s school counsellor’s notes include the child insisting that the counsellor not refer to “dad” but to “Mr Mosby” instead.  Some weight must be attached to the expressions of concern made by B.  The views of the other children are unknown.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The children have a primary attachment to the mother, who has been their primary caregiver.  The children appear to have a strong relationship with their mother and feel safe with her. The mother’s partner also appears to have a positive relationship with each of the children. It also appears that the mother’s partner’s children have a good relationship with each of the children.

2. The children have spent irregular time with their father during the parents’ periods of separation. The children last spent time with their father in November 2011 and since then have only seen their father during the February 2012 incident. Prior to the children’s last occasion of spending time with their father, it was only for small periods of time and was infrequent.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. The mother provides evidence that she has provided the children with opportunities to see or speak to their father if they wished. The children have not taken her up on her offer. Previously when the parties had reached an agreement in relation to the father spending time with the children, the mother was flexible with the father.

2. The father, on the other hand, has not taken an active role in the long-term parenting decisions for the children. The father has also failed to attend occasions when he was to spend time with the children.  When the parties previously reached an agreement, the father only followed it for a few weeks.

3. Further, the father has discontinued his application in this Court and no longer seeks orders to spend time with his children.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. There is no evidence before the Court to suggest that the mother has failed to fulfil her obligations in maintaining the children.

2. The mother has acted protectively in respect of her children. Following instances of violence when the mother has left the home, she has taken the children with her.

3. The mother has been the primary carer for majority of the children’s lives, amongst the various separations between the parents.

4. The mother provides evidence in relation to the father’s child support assessment. The letter advised that the father was in arrears at that time and the mother contends that the father is in arrears of up to $6,000.00 currently.

Likely effect of change in the children’s circumstances

1. The orders the mother seeks are essentially a formalisation of the reality of these children’s circumstances. The father has had little involvement in the children’s lives and has not spent any time with them since November 2011.

2. Thus, there is no change in the children’s current circumstances under the proposed orders.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. There appears to be no practical difficulty or expense involved with the children spending time or communicating with the father in the future.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

1. The mother has been supportive of B’s special needs and sought assistance with his learning difficulties that he required.  During the relationship the father was unsupportive of B’s special needs.

2. There is no evidence to suggest the mother cannot adequately provide for each of the children’s needs. The mother is working full time and her income is supplemented by payments from Centrelink. The mother has been the primary carer of the three children and the children appear to be doing very well at school. The mother has also sought the proper assistance in relation to the eldest child’s nightmares following the incident of February 2012.

3. The father shows no capacity to understand the serious harm that is likely to have been occasioned to the children as a result of his violence.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. The mother has demonstrated a strong and positive attitude to parenthood. The mother has acted protectively for the children in removing them from the father following incidents of violence towards her.

2. The mother has cared for and maintained these children, largely on her own, for most of the children’s lives.

3. The father has shown that he is unable to accept his responsibilities of parenthood for his three children.  He has abandoned his application to the court to spend time with his children.

Family violence (including any family violence order applicable) relating to the children or a member of the children’s family

1. As addressed above in detail, the parties’ relationship included instances of serious violence perpetrated by the father against the mother. As a result of many of these instances the mother sought an AVO against the father, with the children named as protected persons on the order. The mother was also injured as a result of some of the violence.

2. The children are still young and the effects of the family violence may have a continued impact on their development.

3. Documents produced on subpoena by NSW Police suggest that the father has continued to be the perpetrator of violence in intimate relationship.  An ADVO was made on 16 April 2014 for his new partner’s protection.

4. The father has been the subject of many ADVOs which protect the mother and the children. The father has also been convicted of various contraventions on these ADVOs, particularly following the February 2012 incident and has been sentenced to several terms of imprisonment.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. The making of these orders will finalise the proceedings in relation to these children. The father filed his Notice of Discontinuance which indicates that he is unlikely to further seek orders from this Court in the future, and that he was content with the orders being made as sought by the mother.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. In Goode & Goode[4] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [4] (2006) FLC 93-286

3. In this matter, the mother seeks sole parental responsibility for the three children. Initially, the father sought equal shared parental responsibility for the children but the matter was now heard on an undefended basis.

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. The father’s behaviour towards the mother during and after the relationship amounts to family violence as defined under the Act and the presumption for equal shared parental responsibility does not apply.

6. It is clearly evident that these parties’ have not been able to communicate effectively in the past and are unlikely to be able to do so in the future.  The father has been violent towards the mother throughout the entire relationship and he has also been violent towards her and her partner in recent times.  The children have been harmed by being exposed to the father’s violence.  The father has now abandoned his application to spend time with the children.

7. It is not in the children’s best interests for the father to exercise parental responsibility for these children.

8. Given that I have decided that the mother is to have sole parental responsibility for these children, I need not turn to s 65DAA of the Act.

Conclusion

1. The parties had a tumultuous relationship with various incidents of violence by the father towards the mother, often with the children nearby in the home. The parties separated several times throughout their relationship, and separated each time towards the birth of each time and reconciled shortly after the birth of each child.

2. Having regard to all of the evidence, all of the circumstances and all of the factors in relation to the best interests of these three children, I make orders in accordance with those as sought by the mother, and supported by the Independent Children’s Lawyer.

3. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 April 2015.

Legal Associate: 

Date:  2 April 2015