NASSER TALBET & HALSEN

[2014] FamCA 273

FAMILY COURT OF AUSTRALIA

NASSER TALBET & HALSEN [2014] FamCA 273

FAMILY LAW – CHILDREN – Undefended hearing – Father failed to participate in hearing and final stages of proceedings – What time the child is to spend with the mother – Conflictual parental relationship – Willingness and ability of the father to facilitate and encourage a close and continuing relationship between the mother and the child – Whether the presumption of equal shared parental responsibility is rebutted – Order made for equal shared parental responsibility – Best interests of the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
SCVG & KLD [2014] FamCAFC 42

APPLICANT: Ms Nasser Talbet

RESPONDENT: Mr Halsen

INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

FILE NUMBER: PAC 3671 of 2007

DATE DELIVERED: Orders made on 10 April 2014 (amended pursuant to Rule 17.02);
Judgment delivered on 30 April 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 10 April 2014

REPRESENTATION

APPLICANT:	No appearance
SOLICITOR FOR THE RESPONDENT:	Barber & Massey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders

(As amended pursuant to Rule 17.02)

1. All prior parenting order with respect of the child B born … 2005 (“the child”) be discharged as and from Monday 21 April 2014 and until that date current interim orders are to continue.

Parental Responsibility

1. The Mother and Father have equal shared parental responsibility for the child.

Residence, Time and Communication

1. The child live with the Father.

2. The child spend time with and communicate with the Mother commencing from Monday 21 April 2014 as follows:

   (a)Each week from after school on Monday if a school day or from 3:00pm on Monday if not a day on which the child attends school until the commencement of school the following Wednesday if a school day or 10:00am the following Wednesday if not a day on which the child attends school subject to Order 4(b);

   (b)From 10:00am on 26 December until 5:00pm on 2 January in each year and for this purpose changeover shall take place at the McDonalds Family Restaurant, C Street, Suburb D;

   (c)       At such other times as agreed between the parties in writing;

   (d)       The child shall communicate with the Mother by telephone as follows:

   (i)By telephone call initiated by the Mother to the Father’s mobile telephone with her caller identifier activated between 10:00am and 5:00pm (the period) on any day including Christmas Day and Easter Sunday;

   (ii)The Father shall make the child available to speak to the Mother during the period specified in Order 4(d)(i) and shall ensure that his mobile telephone handset is charged, switched on and able to receive calls during the period, that he hands the mobile telephone to the child when it rings during the period displaying the Mother’s caller identifier and he shall afford the child privacy during each telephone call by removing himself from the child’s immediate vicinity;

   (iii)The parties shall be and are hereby restrained from speaking to each other during the child’s telephone calls with the Mother.

3. The time the child shall spend with the Mother shall be suspended on Father’s Day in each year from 10:00am.

4. All changeovers for the purposes of Orders 4(a) and 4(c) shall take place at the child’s school if a day on which the child attends school and if changeover is to take place on a day when the child does not attend school then changeover shall take place at the McDonalds Family Restaurant, C Street, Suburb D

5. All communication between the parties shall be restricted to communication by text message and for this purpose each of the parties shall within 48 hours of the date of this Order provide to the other a mobile telephone number to be used by the other party for that purpose.

6. Each party shall keep the other informed of their current mobile telephone number.

Medical Emergencies and Appointments

1. In the event the child is suffering a medical condition requiring medical attention whist in the care of either parent:

   (a)       The other parent is to be notified immediately or as soon as possible;

   (b)The other parent is to be advised of full details of the medical practitioner or medical facility upon which the child attends immediately or as soon as practicable; and

   (c)The medical practitioner or medical facility is to be advised that both parents have access to the child’s medical records and the information contained within them on request.

2. Each of the parties shall inform and keep the other parent informed of any medical practitioner upon whom the child may attend and of any appointments and consultations with a medical practitioner as they arise.

Schooling

1. Each of the parties be permitted to obtain from any school which the child may from time to time attend, copies of any school reports, progress notes, newsletters and other material related to the child and her progress at school. This Order shall act as an authority to those schools and facilities to release such information and material to each of the parties.

2. The Father shall inform and keep the Mother informed of any school which the child may from time to time attend.

Non-Denigration

1. The parties shall refrain and are hereby restrained from denigrating the other party to or in the presence of the child or allowing a third party to do so.

Watch List

1. Until further order, the Mother Ms Nasser Talbet born in 1985 and the Father Mr Halsen born in 1976, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child B born … 2005 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

2. The Marshall and all other officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these Orders.

Relocation

1. The Father be and is hereby restrained from relocating the child’s place of residence to any place outside a 5 kilometre radius from her present place of residence.

IT IS FURTHER ORDERED THAT:

1. Reasons for judgment will be published in due course.

2. All other applications before the Court be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halsen & Nasser Talbet 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 3671 of 2007

Ms Nasser Talbet

Applicant

And

Mr Halsen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Parenting proceedings in relation to the child the child were commenced by the Applicant father in June 2007 during an earlier period in which the parties were separated.

2. At that time, the parties child B was not yet two years of age. The child the child is now eight and a half years of age.

3. Those parenting proceedings have been ongoing since 2007 and did not reach finality until April 2014 when the Court heard and determined the parenting proceedings on an undefended basis.

4. The father had failed to engage in the proceedings after 13 March 2013.

5. It is unnecessary to repeat here the course of these protracted proceedings, save to note the more recent history as follows:

   a)On 8 August 2011 the preparation of a Family Report was ordered;

   b)On 13 March 2013 proceedings were listed for final hearing before Collier J, but the hearing was vacated because of the father’s new application to relocate internationally with the child;

   c)On 17 May 2013 proceedings were before Collier J for mention.  The father did not appear, having informed the Independent Children’s Lawyer that he would not be attending. On that date, the Court made, in summary, the following further interim Orders:

   i)that the father not relocate the child’s present address without leave of the Court;

   ii)that during school term the child spend time with the mother each alternate weekend from 3.00 pm Friday to before school the following Monday;

   iii)that during school holidays the mother spend time with the child from 3.00 pm Friday to 9.00 am on the following Monday;

   iv)that for the purposes of the child’s time with the mother where appropriate the mother collect the child from the McDonald’s Family Restaurant at Suburb D and return the child to the father at that place at the conclusion of the child’s time with the mother; and

   v)that in the event that the child is unwell and unable to spend time with the mother, the father provide to the mother within 72 hours a medical certificate to that effect.

   d)On 11 November 2013 the matter was listed before a registrar as a consequence of the father’s failure to engage in the preparation of the Family Report. There was no appearance by the father on that date. The Court made the following Orders to facilitate the preparation of the Family Report:

   i)that the mother be granted leave to make an oral application to vary the interim Orders in respect of the child’s time with the mother;

   ii)that the child’s time with the mother be extended to 3.00 pm on Monday that the Family Consultant is able to interview the child and the mother for the purposes of the preparation of the Family Report; and

   iii)that the Court notes that the father has failed to facilitate his engagement and the engagement of the child in the preparation of the Family Report ordered on 13 March 2013, that the discrete order made is to facilitate the attendance of the mother and the child for the purposes of the further progress of that report and in the event that the father fails to attend any further appointment with the Family Consultant necessary to complete the report then the mother is at liberty to make application to the Court for her parenting application to proceed on an undefended basis.

   e)On 12 March 2014 the matter was again before the Court. The father did not attend. The Family Report was ordered to be released to the parties. It was clear that the father had not participated in the Family Report process. On that date, on the application of the mother, proceedings were listed for undefended hearing on 10 April 2014 in the absence of an appearance by or on behalf of the father. The Court ordered the father be personally served with a copy of the Orders of that day, together with a letter from the mother’s solicitor informing him that in the event of no appearance by or on his behalf on 10 April 2014 the mother’s application would proceed to hearing on a final basis. The Court noted that there was no appearance by or on behalf of the father that day, notwithstanding he had been informed of the Court date by letters from the mother’s solicitors dated 3 February 2014, 6 March 2014 and 8 March 2014 (Exhibit A), and that the Independent Children’s Lawyer had no objection to the orders sought by the mother being the orders set out in the minute of proposed orders forwarded to the father under cover of the letter dated 6 March 2014.

   f)Personal service on the father in terms of the orders made was affected on 15 March 2014 (Exhibit D).

   g)On 10 April 2014 there was no appearance by or on behalf of the father and the matter proceeded to an undefended hearing in relation to the mother’s application. Orders were made on that day following hearing with reasons to be published.

6. The mother is aged 28 and was born in Country E. She came to Australia in 2003. The father is aged 37 and was also born in Country E.

7. The parties married in 2003 in Sydney when the mother was 18 years of age. The parties finally separated in September 2008.

8. The child of the parties the relationship, the child, was born in 2005 and is now eight and a half years of age.

9. During the parties’ cohabitation, the mother was the primary carer for the child.

10. Following separation in September 2008, the child lived with the mother, except for a period of six weeks in May/July 2009 when the mother travelled to Country G to spend time with her family, during which time the child lived with the father.

11. On the mother’s return from overseas, the child resumed living with her. However, in August 2009, the father threatened the mother and, as a consequence of the mother’s fears, the child spent no time with the father until 26 December 2009.

12. From January 2010, the child has been in the primary care of the father after the father refused to return the child to the mother’s care.

13. On 8 March 2010 Orders were made in the then Federal Magistrates Court of Australia (as it then was) for the child to spend time with the mother from 9.00 am Saturday to the commencement of day care on the following Monday, with changeovers to take place at Suburb D Police Station.

14. Subsequent to the Orders in March 2010, the relationship between the parties remained conflictual and it became apparent that the father was not encouraging of the child’s relationship with the mother.

15. On 7 April 2010 further interim parenting Orders were made that provided for the child to spend time with the father from after day care on Thursday until 5.30 pm on Friday in one week and from after day care on Thursday to 4.00 pm on Sunday in the other week with changeovers to be at day care or at the F Region Contact Centre, with the child otherwise to live with the mother.

16. Difficulties in relation to the child’s time with the mother continued, and on 21 June 2010, further interim parenting Orders were made that provided for the child to spend time with the father in one week from after school/day care Monday to the commencement of school/day care the following day, and in the other week, from the conclusion of school/day care Monday to the commencement of school/day care Wednesday. Both parties were restrained from removing the child from Australia.

17. In late December 2010 the mother travelled to Country G for two months to see her family. The father refused to allow the child to accompany the mother and the child remained in the father’s care while the mother was overseas. Following the mother’s return in February 2011, the father refused to allow the child to spend any time with the mother until further interim parenting Orders were made on 7 March 2011.

18. The Orders of 7 March 2011 provided for the child to spend time with the mother each second weekend from after school Friday to the commencement of school the following Monday and for telephone communication between the mother and the child each Tuesday, Thursday and Friday evenings. Changeovers were to be facilitated at the child’s school or the F Region Contact Service.

19. Following the Orders made on 7 March 2011 the father has been disruptive in relation to the child’s time and telephone contact with the mother.

20. The parenting proceedings were listed for final hearing to commence on 13 March 2013, but shortly prior to the hearing, the father amended his application to seek an order that he be permitted to relocate with the child to the Country H. The hearing was vacated and further interim Orders were made on 13 March 2013 that, in summary, provided:

    a)that the parties have equal shared parental responsibility for the child;

    b)that the child live with the father;

    c)that the child spend time with the mother each alternate weekend from after school Friday to before school Monday and during school holidays from 3.30 pm Friday to 9.00 am Monday each alternate weekend;

    d)that the child spend time with the mother from 9.00 am on 26 December 2013 to 9.00 am on 27 December 2013;

    e)that changeovers, if not a school, be at the F Region Contact Centre (except in relation to the Christmas time with changeover to take place at a McDonalds Family Restaurant in Suburb D);

    f)that the child have telephone communication with the mother each Tuesday, Thursday and Friday evenings with the call to be initiated by the mother and the father to make the child available to speak to the mother, with the parties not to speak to each other during such calls; and

    g)that the child be placed on the airport watch list and the parties be restrained from removing the child from the Commonwealth of Australia.

21. The Court proceeded to make trial directions that included an order that the parties ensure the child is made available to the Family Consultant as may be required for the purposes of the preparation of the Family Report.

22. Since the Orders made in March 2013, the father has continued to be disruptive of the child’s time with the mother and the child’s telephone contact with the mother. The child has not spent time with the mother during school holidays, notwithstanding the terms of Orders made in March 2013.

23. The Family Report interviews were scheduled for 24 September 2013. The father and the child failed to attend, with the father asserting that the child was unwell. Interviews were then rescheduled to 8 October 2013 and on that date the father failed to attend and failed to make arrangements for the child to attend, without explanation.

24. The mother was able to facilitate the child’s attendance upon the Family Report writer in December 2013 by reason of Orders made on 11 November 2013.

25. The child has expressed a wish to spend more time with the mother.

26. The mother presently resides in a two-bedroom flat and the child has her own bedroom when she stays overnight. The mother’s flat is rented from Community Housing and the mother has no plans to move from those premises. The mother does not wish her present location to be known to the father by reason of her fears of him.

27. The mother has a motor vehicle and a driver’s license.

28. The mother is presently in employment in the hospitality industry where her most remunerative work is available on weekends. She seeks to be engaged in the child’s schooling and, as the child is given her weekly homework on a Monday, the mother seeks to have time with the child from Monday to Wednesday in each week, other than weekends.

29. The mother is presently studying at TAFE and anticipates completing that course in June or July 2014, at which time she may be able to obtain office work.

The Family Reports

1. Two Family Reports have been prepared in these proceedings.

2. The first report is dated 30 April 2012 (Exhibit B). The Family Report writer noted that the father at that time was preoccupied by the breakdown of his relationship with the mother and that neither of the parents were assessed as having any reflective responsiveness to the child’s individual needs separate from their own.

3. The father presented to the Family Report writer as an intense man, in a highly emotional state.

4. Both parties accused the other of blatant breaches of Court orders, leaving some doubt in the Family Report writer’s mind as to their compliance with Court orders in the future. The parties’ relationship was characterised by a mutual lack of trust and an inability to protect the child from their conflict.

5. It appeared to the Family Report writer that the father, and possibly his family, had been involved in attempting to influence the child’s view of her mother negatively by exposing the child to information that casts the mother in an unfavourable light.

6. At the time of the first report, the mother did not seek to have the child live with her and, thus, a change of residence from the father was not indicated, nor desirable.

7. It was noted by the report writer that the relationship between the child and the mother at that time was not one that was characterised by warmth, notwithstanding their close bond in the past.

1. The report writer expressed concern that the time being sought by the mother with the child at that time would be considered to be a bare minimum necessary to maintain a relationship with the child.

2. The report writer recommended that the parties attend appropriate counselling services, particularly as a consequence of the ongoing destruction of the child’s relationship with the mother. The report writer also recommended that the parties have joint parental responsibility for the child and that they attend UNIFAM for an assessment of their needs in terms of ongoing therapy.

3. The second Family Report is dated 6 March 2014.

4. The mother’s proposal at the time of the report was that the child spend time with her each week from after school on Monday to before school on Wednesday, and that such time continue during school holidays with changeovers to occur, if not from school, at the McDonald’s Family Restaurant at Suburb D. The mother also sought a period of one week during the Christmas school holiday period to include the Christmas festive period in each alternate year.

5. The father did not participate in the Family Report process and his proposals were not known to the Family Report writer.

6. It is clear from the report that the mother’s relationship with the child had improved significantly since Orders were made in March 2013. The mother described her present relationship with the child as “(v)ery good. She understands now. He can’t wash her brain as before. She loves to spend time with me”.

7. It is clear from the report that the acrimony between the mother and the father and his family continues.

8. The child was able to engage in the report process as a consequence of orders made facilitating an extension of the mother’s time with the child.

9. The child presented to the report writer as a “bright chatty little girl who, despite appearing to be somewhat nervous, did not have any difficulty answering questions.” It is clear from the report that the child enjoys spending time with her mother and expressed a wish to the Family Consultant to see her mother for five days, being at the weekend and Monday, Tuesday and Wednesday as well. She told the Family Report writer that would mean that the mother could help her with her homework as “(m)y daddy doesn’t have time to help me with my homework”.

10. The child was very aware, noted the report writer, of the level of acrimony between her parents. It is clear that the father and his family continue to discourage the child’s relationship with the mother.

11. In observation, the child was observed to have a positive and establish relationship with the mother, with the child being reluctant to end the observation session with her mother.

12. In evaluation, the Family Report writer noted the marked improvement in the child’s relationship with the mother since the previous report in January 2012.

13. The Family Report writer observed:

    … It appears that the time [the child] has spent with her mother has allowed her to form a different view, one which was based on her experience of her mother and independent of the views of [the father] and his parents. [The child] clearly values the time she spends with her mother. It appears that [the child] recognised that her mother can provide for needs both material and emotional which are not being met by her father. …

14. As to the question of parental responsibility, the report writer said at [30] that:

    Although these parents do not demonstrate the capacity to communicate effectively and cooperate to the extent which is usually required for them to have joint parental responsibility of [the child], it is questionable whether giving sole parental responsibility to [the father] will lead to better quality parenting for [her]. [The father]’s past behaviour in terms of supporting [the mother]’s relationship with [the child] raises concerns that he would use such authority to minimise [the mother]’s participation in [the child]’s life.

15. The Family Report writer recommended that the child spend time with the mother in line with the mother’s current application and that parental responsibility be a matter for judicial determination.

The Issues for Determination

1. Having regard to the best interests of the child:

   a)What time should the child spend with the mother?

   b)Who should have parental responsibility for the child?

   c)What other orders are necessary to promote the child’s best interests?

What are the best interest considerations?

1. The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

5. The presumption does not apply in respect of final proceedings where:

   a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)]; or

   b)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

6. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

7. The High Court in MRR & GR [2010] HCA 4 has affirmed the legislative “pathway”.

8. These proceedings were commenced prior to 7 June 2012.

Best Interests of the children: The Additional Considerations: s 60CC(3)

1. The Court has had regard to each of the additional considerations set out in section 60CC (3) of the Act. The relevant considerations are set out below.

Views and maturity of the child

1. As discussed above, the child has expressed a wish to spend more time with the mother. Having regard to the Family Report writer’s observations as to the child’s maturity, presentation and perceptions, it is appropriate to place some weight on the child’s wishes, notwithstanding her age.  

Nature of the child’s relationship with her parents and other significant persons

1. The child will continue to live primarily with the father. Her relationship with the father is a risk into the future should he and his family continue to present the mother in a bad light to the child. That is his risk.

2. The mother now has a restored relationship with the child. It is important to promote that relationship by appropriate orders for the child’s time with the mother.

3. The father’s extended family also present as a risk to his relationship with the child into the future. He should address this risk.

Willingness and ability of the child’s parents to facilitate a close and continuing relationship between the child and the other parent

1. The father, for his own reasons, has little capacity in this regard and little prospect of making any improvement without therapeutic intervention.

2. At present, the mother concedes the child is to live primarily with the father. She is circumspect in relation to the child’s relationship with the father by reason of his conduct in enmeshing the child in the parental conflict.

3. Both parents have little reflective capacity as to child’s need to have a relationship with both parents that is not overshadowed by their own personal animosity and criticism of the other. It is difficult to see this circumstance changing without therapeutic intervention.

The likely effect of any change in the child’s circumstances

1. The child currently spends time with the mother and seeks to spend more time. The orders sought by the mother facilitate the mother engaging in the child’s life in a meaningful way each week. This can only be of benefit to the child.

Practical difficulty and expense in the child spending time with and communicating with a parent

1. No difficulties are raised in this regard.

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

1. The Family Consultant’s reports demonstrate that both parents are unable to focus on the child’s needs, except through their own conflict. Ultimately, this will be at their risk as to their long term relationship with the child.

2. The father, particularly, has demonstrated little capacity in regard to this factor, but the child is settled in his home environment. The mother does not seek to disrupt the child’s primary residence but seeks greater engagement with the child each week to be more closely involved in her schooling.

3. The mother’s concerns to be so engaged demonstrate a greater capacity in regard to this consideration than the father and is supportive of the orders sought by her.

Attitude to the child and responsibilities of parenthood

1. The Family Report writer’s criticisms of both parents are referred to above.

2. Neither parent has historically demonstrated an appropriate attitude in this regard. The father has failed to engage in these proceedings.

3. The mother’s proposal is indicative of an improvement in her attitude to the child and her parental role.

Family violence

1. There has been family violence and ongoing conflict between the parents in this matter both before and after separation. The post separation period is referred to above.

2. However, as the parties separated in September 2008. This consideration does not impact on the orders sought by the mother.

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

1. Whilst this consideration might be an altruistic ambition, the parents remain in conflict and there is a prospect of the child’s relationship with the father deteriorating as she gets older. Only time will reveal whether the proposed parenting arrangements remain settled.

The Primary Considerations: s 60CC(2)

1. The primary considerations 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.

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. It is clear that the child would benefit from having more time with the mother so as to allow the mother to engage in the child’s education and midweek life. More importantly, such time will allow the child to balance her relationship with her father in the shadow of his ongoing denigration of the mother. The child’s perceptions in this regard are referred to above.

3. The child’s relationship with the mother is important to the child and meaningful in providing to the child weekly time with the mother. The child’s relationship with the mother has every prospect of improving as time goes by.

Section 60CC (2)(b) – need to protect

1. This is a problematic issue. The father has not engaged in the proceedings of late, continues to denigrate the mother to the child and is offhanded as to compliance with Court orders.

2. The saving circumstance is the child’s own realisation that her father’s denigration of the mother is not supported by her own recent experiences with the mother.

3. A non-denigration order is appropriate to remind the parents of their responsibility to the child of not exposing her to such abuse and conflict.

The child’s best interests and time with the mother

1. After considering the matters set out in s60CC above, and the matters set out below, it is appropriate to make orders as sought by the mother as to her time with the child. 

Who should have parental responsibility?

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted in circumstances set out above.

2. The mother is seeking an order for shared parental responsibility.

3. Notwithstanding ongoing conflict, the Family Report writer expresses concern that although these parents do not demonstrate the capacity to communicate effectively and cooperate to the extent which is usually required for them to have joint parental responsibility of the child, it is questionable whether giving sole parental responsibility to the father will lead to better quality parenting for the child. The father’s past behaviour in terms of supporting the mother’s relationship with the child raises concerns that he would use such authority to minimise the mother’s participation in the child’s life.

4. Overall, it is appropriate that the presumption apply as there are no best interest considerations to contraindicate it and any issues of violence are historic in circumstances where the parties separated nearly 6 years ago.

5. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

6. The mother does not seek orders for equal time or, indeed, substantial and significant time. That concession by the mother obviates any detailed consideration of that statutory provision (SCVG & KLD [2014] FamCAFC 42). It is not in the child’s best interests to consider imposing such an arrangement on the mother in her present circumstances.

7. The child’s best interests as set out above reveal that the orders as sought by the mother serve those interests well. 

What other orders are appropriate?

1. The mother seeks orders for the mutual provision of medical information about the child, access to school information, non-denigration, a watch list order and an order restraining the father from relocating outside a reasonable area of the child’s present residence.

2. It is the child’s best interest that such orders be made, particularly in the context of the present relationship between the parents.

3. Either party can apply on good grounds to vary or discharge such orders.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2014.

Legal Associate: 

Date:    30 April 2014