OGILVIE & LUNDY

[2015] FamCA 189

FAMILY COURT OF AUSTRALIA

OGILVIE & LUNDY [2015] FamCA 189

FAMILY LAW – CHILDREN – Undefended hearing – Where the father has not engaged meaningfully in the proceedings – Where the young child presently has no relationship with the father – Where the father has a history of mental health issues and drug use – Where mother’s application is supported by the independent children’s lawyer – Consideration of the need to protect the child – Consideration as to parental responsibility – Where orders made as sought by the mother.

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

Goode & Goode [2006] FamCA 1346
MRR & GRR [2010] HCA 4
Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Ogilvie

RESPONDENT: Mr Lundy

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 1920 of 2013

DATE DELIVERED: 24 March 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Anderson Boemi Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. The Mother have sole parental responsibility for the child B born … 2011 (“the child”).

2. The child live with the Mother.

3. That otherwise all previous parenting orders in relation to the child be discharged.

4. The child B born … 2011 is permitted to travel internationally.

5. The Mother may apply for a passport for the child B born ...2011 without first obtaining the consent of the father Mr Lundy.

6. The appointment of the Independent Children’s Lawyer be discharged.

7. The matter be removed from the list of active pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ogilvie & Lundy 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 1920  of 2013

Ms Ogilvie

Applicant

And

Mr Lundy

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to the child B born in 2011.

2. The matter was heard on an undefended basis on 20 February 2015 in circumstances where there was no appearance of by or on behalf of the respondent father.

3. Following the conclusion of evidence and having regard to the circumstances more fully referred to in the reasons set out below, orders supported by the independent children’s lawyer were made in summary in the following terms:

   a)That the mother have sole parental responsibility for the child;

   b)That the child live with the mother;

   c)That all previous parenting orders in relation to the child be discharged;

   d)That the child be permitted to travel internationally and that the mother may apply for a passport for the child without first obtaining the consent of the father;

   e)That the appointment of the independent children’s lawyer be discharged.

4. Proceedings were commenced by the mother by application filed on 8 May 2013. On 14 June 2013 proceedings were listed before a registrar for directions. On that day the father appeared in person unrepresented. Relevantly the parties were ordered to attend intake events for the child responsive program.

5. The child responsive program memorandum dated 8 October 2013 was released to the parties and proceedings were listed for the purposes of a first day Less Adversarial Trial on 2 May 2014. On that day the respondent father was represented by counsel and final consent orders were made as to property. Otherwise parenting orders were made that in summary provided:

   a)That the child live with the mother;

   b)That the child’s time with the father be supervised by the Suburb C Contact Centre;

   c)That an independent children’s lawyer be appointed to represent the child; and

   d)That parenting proceedings be adjourned to 16 June 2014 for judicial case management.

6. On 16 June 2014 an order was made for the father to submit to urinalysis testing at the request of the independent children’s lawyer for a period of 12 months and in the event of a positive or abnormal drug screening report the child’s time with the father be suspended. Proceedings were adjourned to 9 December 2014 for further judicial case management.

7. On 9 December 2014 there was no appearance by or on behalf of the respondent father and he had filed a notice of discontinuance on 30 October 2014 as to his response filed in the proceedings.

8. Proceedings were listed for undefended hearing on 20 February 2015. On that day there was no appearance by or on behalf of the father.

Context

1. The mother and father cohabited for a period of 5 years until final separation on 9 May 2012.

2. The child B was born in 2011. At the time of separation of the child was about 9 months of age.

3. The father has not seen the child since May 2012, save for a short period for the purposes of the child responsive program, notwithstanding orders for supervised time made in these proceedings. The father failed to attend at the contact centre for the purposes of intake assessment notwithstanding that the mother had done so.

4. At the time of the birth of the child the mother took leave from her employment for a period of 3 months and thereafter made appropriate arrangements for child care to facilitate her return to employment.

5. The child presently attends an early learning centre 4 days per week and the child is cared for by the maternal grandmother on the other day.

6. The father presently has a Child Support liability of $625.50 per month until 31 December 2015. He is presently about one month in arrears.

7. The father during the parties’ cohabitation was a daily user of illicit substances. As a consequence, to the mother’s observations his moods were erratic and unpredictable. On occasions the father’s behaviour was extremely aggressive and angry.

8. The father during the period of cohabitation exhibited incidence of actual violence causing damage to the home occupied by the mother and father.

9. The mother was scared and intimidated by the father’s violent behaviour. She was fearful that he would cause her physical harm. As a consequence of her fears the mother separated from the father when the child was about 9 months of age. The father’s behaviour following separation caused the mother significant concern. He was abusive and threatening.

10. As a consequence of the father’s behaviour the mother attended at Suburb D Police Station. On 26 October 2012 a final apprehended domestic violence order was made for the protection of the mother and the child for a period of 2 years. The order provided that:

    a)The father not assault molest harassed threaten or otherwise interfere with the mother and the child;

    b)That the father not engage in any conduct that intimidates the mother or the child;

    c)That the father not stalk the mother or child;

    d)That the father not go within 100m of premises at which the mother or child may from time to time reside or work;

    e)That the father not approach or contact the mother or child by any means whatsoever except through the mother’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 as to counselling, conciliation or mediation or current parenting order;

    f)That the father not destroy or deliberately damage or interfere with the property of the mother or the child.

11. Subsequent to the apprehended domestic violence order being made the father conceded to the family consultant that he had been in breach in relation to that order on 8 occasions. The most recent breach at the time of the child responsive memorandum had been an occasion where he attended the child’s child care facility and called out to the mother as she carried the child inside. As at the date of the child responsive memorandum the father was the subject of 2 current good behaviour bonds. His breaches of the apprehended domestic violence order were dealt with by way of good behaviour bond and under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Subsequently the father was admitted to the Suburb E Psychiatric Hospital. Notes from the Suburb E Hospital reveal that the father was previously admitted to Suburb C Hospital after an attempted suicide by gassing.

12. The father has subsequently been attending upon Dr F, clinical psychiatrist, in relation to his mental health issues.

13. The child responsive program memorandum (Exh A) reports that the child appeared to have reached appropriate developmental milestones for his age and that the mother reported there were no health concerns in relation to the child.

14. The memorandum identified that the child’s significant relationships were with the mother as his primary carer and the maternal grandmother who spends significant time with the child.

15. The child has a half sibling, C, aged 11. C is a child of the father’s former relationship and resides with a family friend. The child sees C at regular intervals in the company of his mother.

Parenting

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

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.

The Primary Considerations:

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 one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. It is clear that the child has a settled primary relationship with his mother and a significant relationship with the maternal grandmother. These represent significant and valuable relationships for the child and should be maintained.

3. The child’s relationship with the father is non-existent at present and a resumption of that relationship in circumstances where the father has a history of mental health issues and drug use is contraindicated.

Section 60CC (2)(b) – need to protect

1. This consideration in reality is the over-clouding issue in terms of the mother’s application. The best interests of the child can be resolved by reference to this consideration. Should the child be exposed to the father’s adverse conduct then such exposure represents risks of psychological abuse and indeed physical abuse to the child.

2. This consideration is to be given greater weight of the primary considerations.

3. There is no doubt that the child’s primary relationship with the mother represents a protective home life for him.

The Additional Considerations – s 60CC(3)

1. The court has considered each of the additional considerations where relevant. Without exception they are clearly indicative of orders sought by the mother being in the child’s best interests.

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 the circumstances set out above.

2. The mother is seeking an order for sole parental responsibility. Her application is supported by the independent children’s lawyer.

3. In circumstances where the father has not engaged in the proceedings or indeed the child’s life in any meaningful way and where there is history of family violence it is appropriate that the presumption not apply as the best interest considerations contraindicate it.

4. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 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. As the presumption does not apply the Court is not required to specifically consider equal time or substantial and significant time with the father.

5. However, an appreciation of the best interest considerations referred to above clearly contra-indicates either of such arrangements.

6. The child’s best interests as set out above reveal that the orders as sought by the mother and supported by independent children’s lawyer serve those interests well. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 24 March 2015.

Associate: 

Date:  24 March 2015