OXTON & MADEN

[2020] FamCA 433

FAMILY COURT OF AUSTRALIA

OXTON & MADEN [2020] FamCA 433

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where the father ceased engaging in the proceedings – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother and spend time with the father as determined by mother.

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN

Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Oxton

RESPONDENT: Ms Maden

INDEPENDENT CHILDREN’S LAWYER: Mr Macdiarmid

FILE NUMBER: PAC 5327 of 2014

DATE DELIVERED: 29 May 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 9 April 2020

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE RESPONDENT: McIntosh McPhillamy & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Macdiarmid Family Law Specialist

Orders Made On 9 April 2020

1. All prior parenting Orders in relation to the subject children are discharged.

2. The mother have sole parental responsibility for the children X born … 2012 and Y born … 2014.

3. The said children live with the mother.

4. The children spend time with the father as agreed between the father and mother and failing agreement as determined by the mother.

5. The proceedings be removed from the active pending cases list.

6. Reasons for judgment to be published at a later date.

7. The application for costs by the Independent Children’s Lawyer is dismissed.

8. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oxton & Maden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5327 of 2014

Mr Oxton

Applicant

And

Ms Maden

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 24 January 2018 in the Local Court.

2. The application concerns two children: X (“the older child”) who was seven years old at the time of the hearing and Y (“the younger child”) who was six years old at the time of the hearing (“the children”).

3. Since late 2018 the father has failed to engage in these proceedings and although he did not formally withdraw his application, it was appropriate that the matter proceed on an undefended basis.

4. At trial the mother relied upon the following documents:

   a)her Response to Initiating Application filed in the Local Court on 28 February 2018; and

   b)her Affidavit filed 1 April 2020.

5. The mother initially sought orders that the parties hold equal shared parental responsibility for the children, that the children live with her and that they spend time with the father as agreed between the parties, but failing agreement for specified time in each school holiday period. She also sought orders providing that the children have regular telephone contact with the parent with whom they are not spending time. 

6. At final hearing, the Independent Children’s Lawyer (“ICL”) proposed orders that the mother have sole parental responsibility for the children, that they live with her and that they spend time with the father as agreed between the parties, but failing agreement as determined by the mother. The mother adopted the ICL’s proposal.

7. Orders were made by the Court in the terms sought by the ICL and supported by the mother on 9 April 2020, and reasons were reserved. These are those reasons.

Context

1. Both the mother and father were 27 years old at the time of the hearing.

2. The parties commenced a relationship in … 2011 but never married. They separated on a final basis in October 2014.

3. The older child of the proceedings was born in … 2012 and the younger in … 2014.

4. The mother has re-partnered with a Mr B (“the mother’s partner”) and in … 2019 gave birth to a son named Z (“the children’s half-sibling”). The children live with the mother and the mother’s partner in a home located in Queensland, some distance away from the father who lives in New South Wales.

5. Since the children’s move, the father who lives with the paternal grandparents has spent time with the children during school holidays usually in the presence of the paternal grandparents. Otherwise, the father has had irregular telephone contact with the children and plays no significant role in their day-to-day care.

The proceedings

1. The father initiated proceedings in the Local Court on 24 January 2018 seeking to recover the children from the mother who had unilaterally relocated with them to Queensland due to her concerns that they were at risk of harm in the father’s household.

2. On 28 February 2018 the mother filed a Response to the father’s application in that Court seeking orders that the children live with her and spend time with the father as agreed between the parties and failing agreement, during school holidays.

3. On 9 May 2018 interim orders were made in the Local Court providing that the children primarily live with the mother and spend time with the father during school holidays, conditional upon the father submitting to urinalysis and producing clean drug test results. An appeal from those orders was initiated by the father not long after. The Appeal was later consolidated with the primary proceedings.

4. On 22 May 2018 the Local Court proceedings were transferred to this Court.

5. On 20 August 2018 orders were made that the parties attend upon a family consultant in the course of the Child Responsive Program and that a report be prepared by the family consultant. Directions were also made on this occasion for the mother to file any affidavit evidence she sought to rely upon in support of her case.

6. Subsequently, on 6 September 2018 the parties were interviewed by the family consultant and observed with each child.

7. On 23 October 2018 an ICL was appointed to the proceedings. It was also noted by a Registrar on this occasion that the father had not complied with orders as to his urinalysis as he believed that he was only required to partake in drug testing before the children’s school holidays. At the time, it was understood the father was attending rehabilitation. The matter was then listed for the First Day Intake of a Less Adversarial Trial (LAT) on 31 July 2019.

8. When the matter came before the Court on 31 July 2019 the Court noted that there was no appearance by or on behalf of the father. Orders were then made for the parties to attend a mediation program as may be arranged by the ICL and that the father undertake urinalysis at the request of the ICL for no more than once per calendar month.

9. On 17 December 2019 the Court again noted no appearance by or on behalf of the father. The matter was adjourned to 10 February 2020 and the ICL was ordered to forward to the father a copy of the orders from this date, along with a letter informing him that in default of his appearance on the adjourned date, the mother’s parenting application will proceed to an undefended hearing.

10. On 10 February 2020, there was again no appearance by or on behalf of the father. The matter was listed for an undefended hearing on 3 April 2020 and the mother was directed to file and serve her evidence in chief.

11. Due to changes in the judicial calendar, the hearing date on 3 April 2020 was vacated and the hearing was postponed to 9 April 2020. The father was notified of the new date.

12. On 9 April 2020 there was again no appearance by or on behalf of the father and the matter proceeded on an undefended basis.

Procedural fairness

1. As set out above the father has failed to engage in the proceedings in failing to attend Court events on several occasions.

2. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   16.07  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.

3. Further, rule 11.02(2)(c) of the Rules provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

4. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, where the plurality of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

5. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

6. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…

7. Such is the case presently before this Court for consideration.

8. In circumstances where, as outlined above, the father has failed to appear on a number of occasions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

Child Responsive Program Memorandum

1. On 6 September 2018 the family attended upon a family consultant as part of the Child Responsive Program. At this time the older child was six years old and the younger child four years old.

2. Each parent reported to the family consultant incidents of family violence perpetrated by the other parent. The mother, in particular, alleged that the father had in the past “pushed her up against the wall, put his hands around her throat and had smacked her head against the wall”. She also reported the father being verbally abusive towards her which the father did not deny. Although the mother told the family consultant that the father “is not generally an aggressive person” and that she is not fearful of him, she did state that “when [the father] gets worked up, he can get really, really angry”.

3. The father told the family consultant that the mother was physically and verbally abusive towards him including that she punched him in the face on many occasions and labelled him a “junkie” and “druggo”. While the mother concedes that she had pushed the father on a number of occasions and at times used derogatory names towards him, she denies being physically violent towards him to the extent the father contends.

4. The mother raised concerns about the father’s drug use and claimed that he used cannabis on a daily basis and sold cannabis from the home including at times when the children were present. Although the father denied being involved in the sale of illicit substances, he did concede that he used cannabis regularly but had significantly “cut back” his use since attending drug and alcohol counselling.

5. While the mother told the family consultant that the father’s cannabis use “causes him to lose motivation, provide poor supervision and lack of attention to the children”, the father himself related that his cannabis use did not impact his parenting as he had been “smoking since before my kids were born”. Neither parent raised concerns about each other relating to alcohol consumption.

6. Concerns were also raised about the father’s mental health, with the mother reporting to the family consultant that prior to and during the parties’ relationship the father had made suicide attempts. She also claimed that the father’s mental health could be negatively impacted by his Type I diabetes affecting his mood. The father denied this but did, however, recount a time where he had “attempted to gas himself in the car” and described his other attempts at suicide as a response to the mother’s alleged infidelity. He also told the family consultant that the only diagnosis he ever received was “situational depression”, for which he did not require medication.

7. Both parties also raised concerns about the other parent’s attitude towards the care of the children. The mother reported that the father has not consistently taken up the opportunity to communicate with the children via telephone, while the father makes complaints about the mother’s living environment, her different partners to which he claims the children are exposed and other issues relating to the mother’s ability to meet the children’s basic needs.

8. The family consultant opined that both children appear to have “established and positive relationships with both parents and want to spend time with each of them”. She further observed that “the distance between the parents’ homes is likely to make maintaining a relationship with each parent somewhat difficult for the children”.

9. It was the family consultant’s advice that the Court:

   “determine the children’s best interests regarding relocation to [Queensland] in light of the parenting history and each parent’s capacity to provide for the needs of the children (including their willingness and ability to facilitate the children’s relationship with the other parent), taking into account their support structures and the allegations of risk each parent has made.

10. She also recommended that should the matter proceed to final hearing, a family report may assist the Court.

The father’s involvement with drugs

1. The father has a history of engaging in the use of illicit substances.

2. Throughout the parties’ relationship and following separation the father used cannabis on a daily basis. At some time after separation, the father was engaged with a specialist alcohol and drug counsellor whom he attended upon on a regular basis.

3. The mother also asserts that the father has been involved in the trade of illicit drugs in order to supplement his income. She claims that when the parties lived together the father supplied drugs from within his home and on some occasions in the presence of the children. On at least one occasion the father was found “cut[ting] up cannabis in the kitchen” while the children were watching television close by.

4. The mother asserts that that along with the father’s substance abuse, his supply of drugs was a “fundamental reason for the irretrievable breakdown of [their] relationship”.

5. Documents produced by the Department of Communities and Justice on subpoena: Exh “E”, reveal that the paternal grandmother had on at least two occasions reported concerns with the father’s behaviour including in relation to his substance use.

6. One such report dated 23 June 2014 noted that “[the mother] and [paternal grandmother] have both caught [the father] using marijuana and feel that he is using it quite a bit”. This was raised in the context of difficulties faced by the father in coping with stress and changes in his routine, for which he was apparently due to receive support from “[D Service]”.

7. Another report received on 17 December 2015 details the father “having attempted suicide by car exhaust inhalation” due to a loss of a friend during that time. The father is then reported as having used “large amounts of alcohol and marijuana”, which has “increased significantly in the last 12 months”. The paternal grandmother reported that the father “[uses drugs] daily and has been having regular angry outburst resulting in damage to the house and police involvement”.

8. In around November 2017 the mother relocated to Queensland with the children, in large due to her concerns that the children were exposed to the father’s involvement with cannabis. The younger child, in particular, is said to have suffered from eczema as a result of being subjected to cannabis smoke. Since moving to Queensland, the mother claims the child’s skin appears “significantly healthier”.

9. Police records on subpoena (Exh “E”) also indicate that in November 2018 the father was charged with three counts of “possession of prohibited drugs” for which he was convicted and placed under the strict supervision of the Community Corrections Service for 18 months.

10. He was also charged and convicted of the supply of prohibited drugs in commercial quantities, and as a result an Intensive Correction Order for 10 months was made providing that he undertake community service and regularly report to the Community Corrections Service.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of 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.

4. 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.

5. 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.

6. The presumption relevantly does not apply where:

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

   b)…

   c)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)].

7. 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.

8. In the present case, the Court is satisfied that since November 2017 the father has not actively participated in the daily care of the children. Although the mother deposes to no parental conflict as between her and the father, and “communicat[ing] effectively [with him] about the girls”, she asserts that she makes “all the day-to-day and long term decisions” relating to the children. It appears both parties recognise the mother as the primary caregiver and decision maker for the children.

1. Given the father’s background of substance misuse and concerns relating to his mental health, the Court is satisfied that the order sought by the ICL and supported by the mother that the mother have sole parental responsibility is in the child’s best interests.

2. Otherwise, the mother and children live some 1,200 kilometres away from the father which would make the exercise of equal shared parental responsibility impracticable, especially in circumstances where the father already demonstrates a lack of eagerness towards spending time with the children.

Best Interests

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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

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

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

   [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. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. It is readily apparent that the children’s ongoing relationship with the mother as their primary carer is important.

4. Although the family consultant assessed both children as having “established and positive relationships with both parents”, it was her evaluation that:

   The distance between the parents’ homes is likely to make maintaining a relationship with each parent somewhat difficult for the children.

5. As the mother has been the primary carer for the children since birth and even more so since their relocation to Queensland, it is clear that the children’s primary attachment is to her. The orders proposed by the ICL and supported by the mother will, therefore, maintain the meaningful relationship between the mother and the children as has always existed.

6. Until recently, the father’s time with the children has been sporadic and inconsistent, notwithstanding that the mother has made attempts to facilitate the father’s time with the children.  It is the mother’s evidence that following her move with the children to Queensland in 2017 “[the father] refused to come and visit, or to arrange a time to spend time with the girls”.

7. While the children have now been spending some school holiday time with the father, it is also the mother’s evidence that the father does not otherwise contact the children often and that telephone communication only ever happens “every few months”.

8. In these circumstances, it is clearly appropriate to make orders that ensure the children remain in the mother’s primary care and that the father’s time be as agreed or in default as determined by the mother. Should the father be more motivated to maintain a meaningful relationship with the children, the mother deposes to being willing to facilitate the children’s relationship with him “when he is available and willing”.

Section 60CC(2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. This issue looms large in the proceedings given the father’s history of drug use and the negative impact it has had on his ability to be attuned to the needs of the children. This, along with issues regarding his mental health, gives rise to a significant concern about the risk of harm he poses to the children should they spend substantial and significant time with him particularly on an unsupervised basis.

3. According to Department records produced on subpoena there have been reports by the paternal grandmother regarding the father’s inability to properly care for the children due to his substance abuse.  The records summarise the report as follows:

   …[The father] had been using large amounts of alcohol and marijuana. Discussions with the family … have raised several concerns about [the father]’s ability to care for his children at present … [The paternal grandmother] has reported that [the father]’s alcohol and drug use (marijuana and she also reports ice but he denies) has increased significantly in last 12 months. She reported to [the Department’s treating team] that [the father] is using daily and has been having regular angry outbursts resulting in damage to the house and police involvement. It is unclear whether children are present during this incidents. [The father] lives with his parents but his mother states this is only because she feels he could not care for his two daughters appropriately without her support. She believes he is not committed to parenting his children at present …

4. It is the mother’s evidence that since relocating she has only made the children available to the father when the paternal grandparents are present as she believes they are able to properly safeguard the children from the father’s involvement with drugs and his behaviour towards the children.

5. Although in the course of the Child Responsive Program assessment the father stated that he “significantly cut back” his drug use, only two months after being interviewed the father faced criminal charges for the possession and supply of prohibited drugs for which he was placed under strict Community Corrections conditions.

6. Relevant to the consideration of needing to protect the children, is the following opinion expressed by the family consultant of the Child Responsive Program:

   ... [I]t is of concern that [the father] does not appear to understand the potentially negative impact his drug use may have had on the children’s experience of him”.

7. It was the family consultant’s recommendation at the time of the assessment that the father “continue to undergo monthly urinalysis in the interim”. Despite orders in place to this effect, the father did not comply with the required drug testing as no results were ever provided to the ICL although requested. Nor were results obtained by the father in accordance with orders made in the Local Court in May 2018 providing that he must also submit to urinalysis and produce clear drug test results. It is to be inferred that any result may well have been adverse.

8. Further, while some concerns arose in the Child Responsive Program Assessment relating to the parties’ perpetration of family violence against each other, the mother did not press her allegations made against the father and there is, otherwise, no objective evidence to suggest that incidents of serious family violence between the parties have occurred.

9. The salient issue as discussed above is the significant evidence as to the risks posed by the father in relation to his drug use and mental health.

10. While it is the mother’s case that the father poses a risk of harm in light of such issues, in her interview with the family consultant she conceded that “[the father] is a good father when he is not using cannabis”. She is supportive of the children’s relationship with the father in circumstances where the father properly addresses his sustained drug abuse.

11. In these circumstances, the order sought by the ICL and supported by the mother that the children spend time with the father as may be determined by the mother, will allow the mother to facilitate the children’s time with the father as she may deem appropriate, and in circumstances where she is confident that the father will not pose a risk of harm to the children that is unacceptable.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   (a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   (c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   iii)With whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

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

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below support the orders made.

3. The older child was six years old when she met with the family consultant. In the course of her interview, the older child told the family consultant that she prefers to live “mostly at mum’s house and mostly at daddy’s. I choose both”. The family consultant, however, expressed some reservations about the views of this child and noted that while the child appeared “happy to speak about her family … as the interview progressed, it was evident [she] did not understand all of the questions put to her”. Accordingly, little weight is attached to the views of the older child, however, her views will be considered in the context of her maturity level. With respect to the younger child, who was only four years old at the time of the assessment she was too young to be meaningfully interviewed.

4. As noted earlier, the mother is the primary caregiver of the children. She has been solely responsible for all long-term decision-making for the children and their day-to-day care. Unlike the mother, the father has not been proactive in the children’s daily lives. While he has been able to spend time with the children during school holidays, he has failed to display a willingness to be more involved in the children’s lives including failing to take opportunities of regular telephone contact with them. For some months after the children relocated, he is also said to have ceased contact with the children and “refus[ed] to come and visit” them. Moreover, while it was the family consultant’s view that the children had “established and positive relationships with both parents” and that they “want to spend time with each parent”, as outlined above, the need to protect the children from harm is given primacy in the proceedings and is supportive of the orders sought by the ICL.

5. It appears the children also have positive relationships with the mother’s partner and their half sibling with whom they currently live. While they have not been observed with the children, the mother deposes that the children have communicated the view that “[the mother’s partner] is the best stepdad ever” and that the children “constantly want to play with [their half-sibling] and help [her] take care of him”. She further asserts that her partner has played an active role in the children’s daily care including picking them up from school when she is at work and teaching them how to ride their bikes.

6. It is also apparent that the paternal grandparents have positive and loving relationships with both children. In the absence of the father’s capacity to properly meet the children’s needs on his own, the paternal grandparents with whom the father lives, have acted protectively of the children and have greatly assisted the father in his care of the children during each school holiday period. The mother notes that both girls “enjoy spending time with their cousins and grandparents when they visit their father”, and also provides positive sentiments about the paternal grandparents in that they “alleviate her concerns about [the father]’s drug use when the girls are spending time with [him]”. Since the mother considers the children “safe” under their supervision, the paternal grandparent’s relationship with the children would help facilitate the father’s time with them should the mother choose for this to occur.

7. In light of the father’s history of drug use and Department records that highlight concerns with his parenting capacity, it seems the father’s ability to act protectively of the children and be attuned to their needs is poor.  

8. Through his disengagement in the proceedings, the father has also demonstrated little interest in making decisions for the children and availing opportunities to spend more time with them. Further, although the mother conveyed to the father her willingness to facilitate his time with the children (even by way of letters sent to him from her legal representatives annexed to the mother’s affidavit), the father did not respond nor organise alternative proposals for contact with the children. Relevantly, the condition that the father undergo urinalysis and produce clean drug test results before time with the children is possible was not complied with by him in both Family Court and the Local Court proceedings.

9. In her written submissions, the mother also claims that the father has paid little by way of child support and pays in an “inconsistent” manner.

10. Taken together, it appears the father exhibits a lack of preparedness in meeting his parental obligations.

11. There is no question as to the mother’s capacity to meet the children’s needs given she has been solely responsible for their daily care since birth. While the mother deposes to “struggling to raise the girls without familial contact or assistance” back in 2017, since relocating to Queensland where the children have had the benefit of the maternal family’s support, she has been able to provide both girls a “very settled, safe and happy life”. Both children are reported at school as “excelling in all areas” and where the older child has been identified as experiencing some learning difficulties, the mother has implemented strategies including a strict after-school routine to combat this issue.

12. Since being employed as a therapist and sports instructor, the mother has also had the ability to meet the living expenses of the children without difficulty and in the absence of consistent financial support from the father. As she works flexible hours, she is also able to be available for the children to properly attend to their needs.

13. The orders proposed by the ICL and supported by the mother would see a maintenance of the status quo for the children with their mother as primary carer.

14. Should the mother deem it fit, there is little practical difficulty to prevent the father’s contact with the children taking place. For some time the children have already been able to travel to Region C to spend time with the father during school holidays.

15. The orders sought by the ICL and adopted by the mother would be least likely to lead to the institution of further proceedings given the father’s non-attendance before the Court and failure to engage in the proceedings.

16. A consideration of the s 60CC factors having regard to the background of this matter and the reality that the children have a relatively limited relationship with their father compared to their mother, supports the making of orders as sought by the ICL as being in the best interests of the children.

17. Orders will be made accordingly.

ICL Costs

1. In the course of the hearing the ICL sought costs in relation to the parenting application. After hearing brief submissions from the ICL as to this matter, the Court was of the view that it was not appropriate to make an order for payment of the ICL costs. Accordingly, this application was dismissed.  The ICL did not require the Court to give reasons.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 May 2020.

Associate: 

Date:  29 May 2020