POLSON & POLSON

[2015] FamCA 135

FAMILY COURT OF AUSTRALIA

POLSON & POLSON [2015] FamCA 135

FAMILY LAW – PARENTING – Undefended hearing – Where the mother failed to engage in the proceedings – Where the father has been the primary carer of the children – Where the mother has significant history of drug use and mental health issues – Consideration as to the need to make orders protective of the children – Where appointment of the independent children’s lawyer continued for twelve months – Consideration as to the best interests of the children – Presumption as to equal shared parental responsibility not to apply – Where children to live primarily with the father – Where children to have supervised time with the mother

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

APPLICANT: Mr Polson

RESPONDENT: Ms Polson

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER: PAC 5111 of 2013

DATE DELIVERED: 5 March 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Meehans Solicitors

RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Peter Baker Solicitor

Orders

1. That all previous parenting orders in relation to the children B born … 2008 and C born … 2009 (“the children”) be discharged.

2. That the father have sole parental responsibility for the children.

3. That the children live with the father.

4. Each party must:

   (a)       Contact the D Care at Suburb E (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the mother;

   (b)       Attend the assessment;

   (c)       Comply with any appointments made by the Contact Centre for supervised time;

   (d)       Comply with all reasonable policies and rules of the Contact Centre; and

   (e)       Comply with all reasonable requests or directions of the staff of the Contact Centre.

1. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

2. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the mother is to have contact with the children each fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

3. The father must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

4. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then contact shall occur at the times that are offered by the Contact Centre.

5. The parties or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

6. The time the children spend with the mother under order 6 is to be supervised by the Contact Centre and the mother must pay the reasonable fees for the supervision on each occasion of supervision.

7. The mother must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.

8. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list. 

9. If during the currency of these orders the parties and the children’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

10. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

11. That otherwise the mother be at liberty to communicate with the children by telephone between 6:00pm and 8:00pm each day, with the mother to initiate the call.

12. That the appointment of the Independent Children’s Lawyer be continued for a period of 12 months from the date of these orders and at the expiration of that period the Independent Children’s Lawyer be discharged.

13. The mother undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly provided always that there shall be no more than one request each calendar month and the mother shall provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order the mother if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of her mobile telephone number, email address if available and facsimile number if available.

14. That upon the mother providing six months consecutive tests negative to all illicit drugs tested then the children spend time with the mother at such times as are agreed between the mother and father in writing with such writing to include SMS or email communication or in the absence of agreement from noon to 4:00pm each Sunday with changeovers to be effected at the Hungry Jacks Restaurant, F Shopping Centre at Suburb E.

15. That the mother and father be restrained from denigrating the other or members of the other’s family in the presence or hearing of the children or either of them and do all things to ensure that no other person does so.

16. That the mother and father be restrained from discussing these proceedings or matters arising from them with the children or either of them, and do all things to ensure that no other person does so.

17. That the father advise the mother in a timely fashion in circumstances where the children or either of them are hospitalised or where emergency medical treatment is sought in relation to the children or either of them so as to facilitate the mother’s attendance.

18. That the father shall in a timely manner at the conclusion of each school semester forward to the mother a copy of the children’s school term reports.

19. That these orders shall operate as sufficient authority for the mother and father to obtain such documents from the children’s schools as are normally provided to parents.

20. That otherwise all pending applications before the court be dismissed.

21. The father effect personal service of a sealed copy of these orders on the mother as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Polson & Polson 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 5111  of 2013

Mr Polson

Applicant

And

Ms Polson

Respondent

REASONS FOR JUDGMENT

1. These are undefended parenting proceedings in relation to the children, B born in 2008 and C born in 2009.

2. The applicant father in his amended initiating application filed on 21 January 2015 seeks in summary the following orders:

   a)That all previous parenting orders in relation to the children be discharged;

   b)That the father have sole parental responsibility for the children;

   c)That the children live with the father;

   d)That the mother communicate with the children by telephone daily between 6:00pm and 8:00pm with the mother to initiate the call;

   e)That the appointment of the independent children’s lawyer be retained for a further 12 months.

3. Proceedings were commenced by the father on 26 November 2013. On 17 January 2014 the respondent mother in her response sought orders in relation to the children in summary as follows:

   a)That the mother and father have equal shared parental responsibility in relation to the children;

   b)That the children live with the mother;

   c)That the children spend time with the father each alternate week from 5:00pm Monday until the following Monday at 5:00pm.

4. On 10 December 2013 interim orders in relation to the children were made by consent. Those orders in summary provided:

   a)That the children live with the father;

   b)That the children spend time with the mother as agreed in writing or failing agreement each Tuesday from 3:00pm to 7:00pm, each Thursday from 9:00am to 1:00pm and each Saturday from 10:00am to 4:00pm with such time to be in the presence of the maternal grandmother;

   c)That the mother communicate with the children by telephone between 6:00pm and 8:00pm each day with the telephone call to be initiated by the mother;

   d)That each two weeks the mother and father undergo urinalysis for illegal drugs in accordance with the current Australian and New Zealand standard AS/NZ 4308/2008;

   e)That the mother and father be restrained from denigrating the other in the presence or hearing of the children;

   f)That the mother and father be restrained from discussing these proceedings or any issue or allegation raised therein with the children or allowing any other person to do so.

5. On 17 February 2014 further interim parenting orders were made in summary in the following terms:

   a)That all previous parenting orders in relation to the children be discharged;

   b)That the children live with the father;

   c)That the children spend time with the mother as agreed in writing or failing agreement from 4:00pm to 7:00pm each Monday, from 6:00pm to 7:30pm each Wednesday, each alternate Saturday from 11:00am to 5:00pm, and each alternate weekend from 4:00pm Saturday to 11:00am Sunday with overnight time to be spent at the home of the maternal grandmother;

   d)That otherwise the children’s time with the mother be in the presence of the maternal grandmother, and to facilitate the children’s time with the mother the father deliver the children to the maternal grandmother and collect the children from the maternal grandmother;

   e)That the mother communicate with the children by telephone between 6:00pm and 8:00pm each day with the call to be initiated by the mother;

   f)That an Independent Children’s Lawyer be appointed for the children;

   g)That the mother and father undertake urinalysis for drug screening within 48 hours of a request to do so by the Independent Children’s Lawyer.

6. On 12 May 2014 the matter was listed for the first day of a Less Adversarial Trial; however the Child Responsive Program Memorandum had not been completed. Further, as the mother’s Legal Aid had been withdrawn, the matter was adjourned to 14 July 2014.

7. Following interviews with the mother, father and the children on 10 April 2014, the Child Responsive Program Memorandum was released on 14 July 2014 and the matter was adjourned to 1 December 2014. Further orders were made by consent on 14 July 2014 to facilitate the mother’s time with the children, in summary as follows:

   a)That the children’s time with the mother on Wednesdays to be varied to between 4:00pm and 5:30pm in the presence of the father at a venue to be agreed and if not agreed at the Hungry Jacks Restaurant at Suburb E;

   b)That the mother and father, without admission, attend upon his or her General Practitioner (“GP”) within 7 days to obtain a referral to the G Drug and Health Service or similar service and then do all things reasonably requested by that service to address his/her past, present and future use of illicit drugs including any treatment or counselling;

   c)That the mother do all things necessary to obtain a referral from her GP and obtain an appointment with Dr H, psychiatrist, to obtain a report on her mental health.

8. Otherwise, it was noted that the father had been referred by the child C’s day care to the Benevolent Society in Suburb E in relation to possible behavioural issues regarding the children but that the father would not facilitate the children attending there until requested to do so by the Independent Children’s Lawyer. It was further noted that the mother and father intended to obtain a further report from Dr I regarding the children’s possible behavioural issues.

9. On 1 December 2014, the matter was listed for further case management hearing. The mother failed to appear and had informed the independent children’s lawyer that she did not propose to appear. Directions were made for the matter to proceed to an undefended hearing on 16 February 2015 with the mother to be notified by email and ordinary prepaid post that in the event there was no appearance by or on her behalf on 16 February 2015, the matter would proceed to undefended hearing.

10. On 16 February 2015, on being satisfied that the mother had been notified in accordance with previous directions the matter proceeded to undefended hearing with judgment reserved.

The background

1. The father at the time of hearing was aged 40. He was not in employment and was the full-time carer for the children. The father had previously been in employment. The father was in receipt of insurance payments arising from a workplace injury.

2. The mother at hearing was 33 years of age. She suffers from anxiety and depression. To the father’s observation, the mother’s health has deteriorated significantly since the parties separated.

3. The mother and father commenced cohabitation in April 2005 and married in 2006. They separated on a final basis on 2 November 2013.

4. There are two children of the parties’ marriage. The child B is at a public school at Suburb J and has commenced Year 2 in 2015. The younger child C has commenced kindergarten at the same public school as B this year.

5. Both children have a treating paediatrician, Dr I, at Suburb E.

6. The father says that during the period of cohabitation he was the primary homemaker.

7. The father concedes that both he and the mother regularly used marijuana on a daily basis during their relationship. The mother smoked 20 to 30 cones of marijuana each day from around December 2007 until she resigned from her employment shortly prior to the birth of the child B in February 2008. The mother returned to work intermittently thereafter.

8. From about May 2008 the paternal grandmother provided significant assistance to the mother and father in relation to the children particularly in circumstances where the father was at work and the mother was unable to care for the children as she was affected by drugs.

9. In January 2009 the mother presented at Suburb E Hospital with abdominal pain. She informed the hospital she had argued with the father and thereupon had punched herself in the stomach, notwithstanding that she was pregnant. She told the hospital she no longer wanted to be pregnant. The mother further informed the hospital that she has “anger issues”. The mother reported ongoing marijuana use, smoking daily two to three cones every hour but less since her pregnancy. The mother presented as angry and unwilling to allow staff to explain her situation.

10. The father says that he, with the assistance of his mother, provided most of the parenting for the children and other duties within the home.

11. To the father’s observation, the mother’s behaviour deteriorated during their relationship. The mother was abusive to the children and him, and on occasions physically assaulted the father. Her behaviour at times put the children and the father at risk.

12. On 8 July 2010 the mother consulted her GP Dr K. She reported to her doctor that she felt that she might have bipolar disorder. She said that she had extreme mood swings all her life and loses her temper if she does not get things her way. She reported that she gets violent with the husband and has difficulty controlling her anger. She reported taking party drugs – speed, MDMA, cocaine, ecstasy and pot, orally from the age of 21. The GP prescribed antidepressants.

13. On 27 June 2013 there was an incident at the then matrimonial home. The mother threatened to burn the home down with her in it. She smashed items of personalty within the home including a 54-inch television. The mother threatened to kill the father and herself. She was charged with malicious damage and an interim AVO was ordered restraining her from being within 100 metres of the home. The parties reconciled and the AVO was varied to facilitate the mother’s return to the home. About two weeks after this incident the mother admitted to the father that she had on that day smoked ice at a friend’s home.

14. The mother’s behaviour on this day precipitated a notification to the Department of Family and Community Services.

15. On 20 July 2013 the mother presented herself at Suburb E Hospital Emergency Department. The hospital notes observe the mother was very distressed, hyperventilating and suffering chest pains. The mother discharged herself notwithstanding advice from the hospital as to her underdiagnosed illness and possible complications from delay in treatment, including death.

16. On 3 September 2013 the mother was placed on a 12 month good behaviour bond in relation to the charge of malicious damage and a final AVO order was made for a period of six months.

17. The father continued to use marijuana until late October 2013. He says at that time there was an agreement between he and the mother that they would stop smoking marijuana. He contends that he has not used marijuana or any other illicit substance since late October 2013.

18. After the father ceased using drugs, the mother’s behaviour became more bizarre. She abused the father, threatened him and his mother. On 2 November 2013 there was an incident at the matrimonial home and the police were called. After the police had left the premises, the mother drove off. The next day the father took the children to his mother’s home.

19. He later received a telephone call from the maternal grandmother who informed him that she had notified the mental health crisis team in relation to the mother’s behaviour.

20. Subsequent to the parties’ separation, the child B attended counselling. On 11 December 2014 he reported to his counsellor that:

    He doesn’t miss his mum at all since he moved out with his father and brother. He said this is because his mum tends to get angry and he said then she will swear at him and scream at him.

    He said his mother smacked him very hard five times on his bottom. He said the smacks hurt his bottom very much. … He said he didn’t tell anyone about his mother hitting him hard and his brother. He said his mother gets angry and he said he feels upset when she does as she likes to yell and swear at him, and he said he feels scared at times. He said his father never yells at him or his brother and he said his father has never hit him or his brother.

21. In circumstances where the father has observed the mother physically abuse the children, he has significant concerns as a consequence of the other circumstances referred to above for the safety of the children in the presence of the mother.

22. Subsequent to interim orders being made for the mother to have supervised time with the children, she arrived late for those visits on most occasions.

1. The father has complied, he says, with requests for urinalysis from the independent children’s lawyer and he has otherwise undergone voluntary urinalysis testing each month. All tests have been negative.

2. The mother has undergone urinalysis irregularly with tests revealing positive results variously for cannabis, cocaine and amphetamines. The father has significant concerns in relation to the mother’s ongoing drug use including the use of marijuana and methamphetamine. He has observed the mother’s physical appearance deteriorate dramatically with the red marks on her face, shoulders, arms, hands, legs and feet.

3. In compliance with orders made on 14 July 2014, the father contacted the G Drug Health Service and was provided with a report confirming that no intervention was required in relation to him. The mother has not engaged with that service as ordered.

4. To the father’s observation the mother presently resides in a relationship with a person that the father asserts is also a drug user.

5. In circumstances where the maternal grandmother failed to supervise the mother’s time as ordered by the Court, that arrangement for supervision was discharged, with the mother to spend time with the children in the presence of the father. However, the mother has been irregular in spending time with the children and on occasions has presented under the influence of drugs.

6. The father proposes that he will continue to live with the children in a cottage at Suburb L. That cottage he says is owned by a family member and he is able to live there indefinitely. Each child has his own room.

7. The father proposes that the children spend time with the mother supervised by D Care at Suburb E.

8. The father presently receives income protection insurance payments of $3,468 monthly from AMP and supplementary Centrelink benefits of about $405 per fortnight. He supports the children from these payments.

9. To his observation, both children are in good health and the children’s treating paediatrician is optimistic in relation to the progress of their behavioural issues.

10. The father proposes the children will continue to attend their current public school and thereafter one of the local high schools. The 2014 end of year school report for the child B is excellent and demonstrates very regular attendance at school.

The Child Responsive Program Memorandum (Exh D)

1. The Child Responsive Program Memorandum was prepared following interviews with the mother and father and the children on 10 April 2014.

2. The issues identified by the Family Consultant included whether the children were at risk of harm in the mother’s care, the mother’s drug use and impact of this on the children, allegations regarding family violence and the nature of the parenting relationship between the mother and father, and any impact of this on the children.

3. The Family Consultant reported that the children appeared to have positive and established relationships with both parents and sought both out for play and attention. Both parents demonstrated an ability to interact with the children in a manner responsive to their needs. The Family Consultant noted the number of concerns raised by the father regarding the mother’s care of the children and her ongoing drug use.

4. The mother in interview appeared to minimise the issue of her drug use and her apparent lack of understanding regarding the impact of this on her parenting and on the children was of significant note. The father also appeared to minimise his prior drug use and his ability to sustain his reported abstinence in the absence of any intervention was likely to require consideration in determining the most appropriate arrangements for the children.

5. To the Family Consultant’s observation the parents were able to communicate civilly regarding the children but it appeared that neither parent trusts the other. Both parents reported concerns regarding civil communication being sustained long-term.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer proposed final orders in summary in the following terms:

   a)That all previous parenting orders in relation to the children be discharged;

   b)That the father have sole parental responsibility for the children;

   c)That the children live with the father;

   d)That the mother communicate with the children daily by telephone between 6:00pm and 8:00pm with the mother to initiate the call;

   e)That the Independent Children’s Lawyer be discharged;

   f)That the mother and father do all things necessary to register with the D Care Children’s Contact Centre Suburb E with the intention the mother be able to spend time with the children as arranged by that service;

   g)That until the mother provides six months of consecutive urinalysis tests, the mother spend time with the children as arranged between the mother and the Contact Centre, and that upon the mother providing six months consecutive negative tests, the children spend time with the mother as agreed between the mother and father in writing or in the absence of agreement from noon to 4:00pm each Sunday with changeovers at the Hungry Jacks Restaurant at Suburb E,

   h)That the mother and father be restrained from denigrating the other or members of the other’s family in the presence or hearing of the children and do all things necessary to ensure that no other person does so;

   i)That the mother and father be restrained from discussing these proceedings or matters arising from them with the children or either of them and do all things to ensure that no other person does so;

   j)That the father forward to the mother a copy of the children’s school term reports and that these orders operate as an authority for each party to obtain such documents from the children’s school as are normally provided to parents;

   k)That the father advise the mother in the event that the children are hospitalised in order to facilitate her attendance.

The children’s best interests

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 & GR [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.

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 children

1. The children are young and there is no cogent evidence as to their wishes. In any event as a consequence of the overshadowing protective concerns, any such wishes would be subsumed by those concerns.

Nature of the children’s relationship with their parents and other significant persons

1. The Family Consultant’s observations as to the relationship between the children and each of the parents are referred to above. There is no doubt that the children have been exposed to family violence in relation to the conduct of the parents in relation to each other and also the mother’s conduct in relation to the children and the paternal grandmother.

2. The children have a significant association with the paternal grandmother who presently provides significant assistance to the father.

3. A consideration of the present parental relationship between the children and each of the parents is clearly indicative of the children remaining in the primary care of the father and the mother’s relationship with the children being permitted in a protective fashion.

The extent to which each of the children’s parents have taken the opportunity or failed to take the opportunity to participate in making major decisions, spend time with the children or communicate with the children

1. The father since separation has assumed in reality the total responsibility in this regard. The mother for her part has had the opportunity for supervised time with the children but consistently has failed to avail herself of this time or indeed part of the time. This consideration is also indicative of the children continuing to reside in their present circumstances with the father.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child

1. Once again in this regard the father has assumed total responsibility since separation. The mother at present provides no financial assistance to the father in relation to the children and the prospects of the mother so doing in the foreseeable future appear to be minimal.

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

1. The children presently reside full time with the father. There is no proposal to alter that arrangement. The children at present have a relatively ad hoc arrangement in relation to time with their mother. The father and the independent children’s lawyer seek arrangements for that time to be in a more protective arrangement either under institutional supervision at a Contact Centre or as otherwise agreed between the parties.

2. These proposals would have little effect on the children save for hopefully promoting and improving their relationship with the mother in safe circumstances.

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

1. No difficulties are raised in this regard. Both parties reside in the Sydney area and the proposals are for the mother to spend time with the children initially at a Contact Centre and thereafter by agreement with the father.

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

1. The Family Consultant’s memorandum does provide some reservations in relation to both parents, particularly in relation to the father’s historic drug habit and his need to remain abstinent, and of course the mother’s ongoing abuse of various forms of illicit drugs that have impacted upon her mental state and her day-to-day health.

2. The mother’s capacity as contemplated in this consideration is significantly diminished to the extent that there are overarching protective concerns should the children be with her.

3. The father on his part has at least since the parties’ separation asserts ongoing abstinence from illicit drugs and this is supported by the urinalysis tests provided by him.

4. The eldest child is doing well at school and in circumstances where for the whole of 2014 he was in the father’s primary care his school report is excellent as are his attendances at school. This is a credit to the father in the difficult circumstance that he and the children have found themselves in.

5. This consideration is clearly again indicative of the children remaining in their present circumstances with the father

The maturity sex and lifestyle and background of the children

1. The children are young and need to be in protective and settled circumstances as they move forward in their early years of schooling.

If the children are Aboriginal or Torres Strait Islander children

1. This is not a relevant consideration.

Attitude to the children and responsibilities of parenthood

1. Matters pertaining to this consideration are also included above. Particularly since separation the father has demonstrated a most appropriate attitude to the children and to his responsibilities of parenthood. On the other hand the mother has virtually abrogated her responsibility to her children.

Family violence

1. There has been significant family violence and ongoing conflict between the parents in this matter both before and after separation. Some of the circumstances pertaining to family violence are referred to above.

2. On the evidence before the court the mother has perpetrated significant family violence against the father, the paternal grandmother and the children with much of her conduct in the presence of the children. This factor is clearly indicative of the mother’s time into the future with the children being in protective circumstances.

3. The post separation period is referred to above.

If a family violence order applies, or has applied

1. As referred to above, prior to separation there was an interim family violence order which shortly prior to separation was made final for a period of six months. The circumstances leading to the making of that order have been referred to above. The order has now expired. Thus, there is no current family violence order.

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

1. Whilst this consideration might be an altruistic ambition, the parents remain in conflict.

2. The mother’s future in terms of her drug use, general health as a consequence thereof and her mental health is clouded in uncertainty.

3. As best as can be facilitated the orders should reflect circumstances known to the Court at this stage and provide for management of the children’s relationships with the mother in prospective circumstances into the foreseeable future.

4. The prospect of future proceedings cannot be ruled out.

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.

   The primary consideration as to protection of the children has been given primacy by reason of more recent amendments to the Act.

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 children would benefit from having a settled relationship with their father. Since separation the children’s ongoing relationship with the father as their primary carer has been valuable and important to the children in what have been very difficult circumstances. It is important that this relationship between the children and the father continues as sought by him.

3. The children’s relationship with the mother cannot at present be seen as meaningful. The mother’s drug use, mental health and general health issues continue to present a risk to the children in terms of behavioural aberrations that they may be exposed to. It is important for the children’s relationship going forward to be in a protective arrangement so that the relationship is meaningful, as being important, significant and valuable to the children.

4. Should the children be exposed to the mother’s adverse conduct then such exposure represents risks of psychological abuse and indeed physical abuse to the children.

Section 60CC (2)(b) – need to protect

1. This consideration in reality is the over-clouding issue in terms of the father’s application. The best interests of the children can virtually be seen through this protective consideration.

2. There is no doubt that the children’s primary relationship with the father represents a protective home life for them. The benefit of the settled relationship with the father can be seen in the eldest child’s school report of 2014. Any disruption of the children’s primary relationship with the father would represent a real risk to the children in terms of psychological or physical abuse particularly should they be exposed to the mother in unsupervised circumstances.

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 father is seeking an order for sole parental responsibility. His application is supported by the independent children’s lawyer.

3. The risk that the mother’s conduct or prospective conduct represents to the children is clear and the need for the children to remain in the primary care of the father is overwhelming. The Family Consultant expresses concern in the memorandum as to the parties’ ability to maintain polite and civil communication into the future. The mother’s behaviour in the past clearly indicates that for her part she is simply unable to do so, particularly when drug affected.

4. Overall, it is appropriate that the presumption not apply as the best interest considerations contraindicate it.

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

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

7. Orders will be made accordingly.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 March 2015.

Legal Associate: 

Date:  5 March 2015