Raja and Servai

[2016] FamCA 19

FAMILY COURT OF AUSTRALIA

RAJA & SERVAI [2016] FamCA 19

FAMILY LAW – CHILDREN - Interim Parenting – Best interests of the children – Parental responsibility – Application in relation to both biological and non-biological children – Application by a non-parent – Allegations of family violence – Application to suspend current spend time with orders.

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

Deiter & Deiter [2011] FamCAFC 82.
Donnell & Dovey [2010] FamCAFC 15.
George & George [2013] FamCAFC 182.
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422.
Mazorski & Albright [2007] FamCA 520.
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.
SS & AH [2010] FamCAFC 13.

APPLICANT: Ms Raja

RESPONDENT: Mr Servai

INDEPENDENT CHILDREN’S LAWYER: Ms Haga

FILE NUMBER: PAC 923 of 2014

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Parramatta Family Law

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Westside Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Karen L Haga & Associates

Orders

1. Service of the Initiating Application and Application in the Case with respect to the child known as B born … 2003 (“the child”) upon her biological mother Ms Raja is dispensed with.

2. The Respondent mother have sole parental responsibility for the child known as the child.

3. The child known as the child reside with the mother.

4. That the father be restrained from attending at or being within 200 metres of the residence or place of employment of the mother.

5. That the mother’s Application in a Case filed 19 November 2015 be otherwise dismissed.

6. The parents do all things required of them to ensure that the children recommence spending time with the father in accordance with interim orders dated 14 April 2014 as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raja & Servai 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 923  of 2014

Ms Raja

Applicant

And

Mr Servai

Respondent

REASONS FOR JUDGMENT

Introduction

1. In parenting proceedings relating to the four year old and two year old children of the parties and the 12 year old daughter of the father, the mother seeks that orders that the children’s time with their father be suspended and that the father be restrained from approaching her.

2. On 14 December 2015, I made orders with respect to the older child, B (“the child”) giving the respondent mother sole parental responsibility for that child and ordering that she reside with the mother.  I indicated that I would publish reasons for these orders at a later date.  On the same date, the mother’s Application in a Case with respect to the father’s time with the two younger children was adjourned for a date to be advised for delivery of a reserved judgment.

3. This judgment deals with the reasons for orders made on 14 December 2015 with respect to the child and with the balance of the mother’s Application in a Case.

Background

1. The parents in the proceedings were born in Country C.  The mother, who is 33, migrated to Australia with her family when she was a teenager.  The father, who is 40, moved with his family to Country D.

2. The child, who is 12, is the father’s daughter from his prior relationship with Ms E.  The child was born in Country D and pursuant to orders made in Country D in June 2010, the father has sole legal responsibility for her.

3. The parents met either online or through mutual friends in around 2009 and first physically met in Country D in mid-2009.

4. The mother contends that the relationship was characterised by the father’s violence, particularly when intoxicated, which dates from some time prior to their marriage.  The mother also alleges that the father had a particular problem with alcohol abuse and that he misused cannabis.  The father denies all allegations of violence and that he misuses alcohol or other substances.

5. The parties were married in 2009 according to the father or March 2010 according to the mother.

6. The mother alleges that the father continued to be violent towards her after the parties were married and was also violent towards the child.

7. The parties’ daughter F was born in Country D in 2011.

8. The parents, the child and F moved to Australian in 2011.

9. The mother alleges that the father continued to be violent towards her after the family moved to Australia.  The father denies all allegations of violence made by the mother.

10. On 17 February 2012, there was an incident at the parties’ home.  The father pushed the mother and was charged with assault.  Police records indicate that the charge was subsequently dismissed.  A provisional Apprehended Domestic Violence Order (ADVO) was issued against the father for the protection of the mother which included a condition prohibiting the father from going within 100m of the premises at which the mother resided or worked. 

11. Shortly after the ADVO was made the father returned to live in the family home.  He was subsequently charged with breaching the ADVO and although the offence was proved, no conviction was recorded.  The parties then separated but later reconciled.  The ADVO was amended to allow the father to return to the home.

12. The parties’ youngest child, a boy named G, was born in 2013.

13. The father and the child were granted permanent residency in Australia in August 2013.

14. The parties separated on a final basis in October 2013 and all three children continued living with the mother in the former family home.  The father spent some time with the children at the home by agreement with the mother until early December 2013.

15. On 9 December 2013, there was an incident at the parents’ home which resulted in the father being charged with assault and a provisional ADVO being made for the protection of the mother against the father.  The father contested the assault charge which was dismissed in the Local Court in August 2014.

16. Following the incident in December 2013, the father did not see the children for some months until he commenced these proceedings.

17. The father commenced parenting proceedings in March 2014 in the Federal Circuit Court, which were transferred to the Family Court in April 2014.  Consent orders for the father to spend time with the children were made on 14 April 2014 but this time did not commence until September 2014.

18. The father was charged with breaching the ADVO on 24 April 2014 and in May of that year was convicted and fined in respect of that offence. Subsequently he appealed against the conviction, which was annulled and the charge was dismissed following a re-hearing.

19. In January 2015 a family consultant interviewed family members for the purposes of a Family Report.  That report dated 24 June 2015 was released on 26 June 2015

20. On 17 November 2015 the father was charged with stalking or intimidating the mother with intention to cause her to fear physical harm . He was placed on conditional bail, which included conditions that he not approach or contact the mother by any means except through his legal representative. Police records and the mother’s affidavit indicate that it is alleged that shortly before midnight on 11 November 2015 the mother answered her mother’s mobile phone and recognised the father’s voice. It is alleged he said to her “It’s you bitch, the kids are mine” and “If I don’t get them I will kill you, I will kill them, your mother, your brother, everyone”. The mother says she recognised the father’s phone number on the screen of the phone. The mother alleges that the father also said to her “I’m coming to burn the house down” and she then hung up. It is alleged that about a minute later the mother’s brother rang the number that had been used for the calls to verify that it was the father. The mother then contacted police to report the incident and while speaking to police the father rang again.

21. The father then sent nine text messages to the mother which included a text which said

    The law was shit for shit from zoo like ur sister

22. When police attended they advised the mother that the father would be arrested but this did not occur for a number of days. In the meantime, the mother complains that she saw the father driving at a slow pace in the vicinity of her home, which made her feel unsettled and had a similar effect upon the child the child.

23. Following the father’s arrest on 17 November the mother instructed her solicitor to inform the father’s solicitor that she would not be facilitating contact because of the recent events.

24. Police records indicate that when he was arrested and interviewed the father agreed that he did contact the mother’s brother at the time and date alleged but denied ever speaking with or making threats towards the mother.

Contested Facts

1. In addition to the undisputed facts there are many matters in dispute between the parties which are highly relevant to the best interests of the children.

2. In addition to different accounts regarding the history of the relationship and marriage, it is of particular significance that the mother alleges ongoing violence by the father towards herself to which the children were exposed and also violence towards the child.  She gives detailed accounts of numerous incidents in which she make serious allegations of violence against the father, a number of which resulted in his arrest and provisional ADVO’s being made.  The father gives a completely different account of these many incidents and denies that he has been violent on any occasion. 

3. In relation to the most recent incident on 17 November 2015 which resulted in his arrest and the mother’s application to suspend the parenting orders, while the father agrees that he had telephone contact with the mother’s brother on that occasion and sent messages to the mother he denies that he was threatening towards her in any manner. 

4. Although these are significant matters of dispute, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13.

5. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).

   [2] [2013] FamCAFC 182.

   [3] [2011] FamCAFC 82.

6. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

7. If the allegations made by the mother were proven, there is in my view no doubt that the impact of those events, (that is, ongoing violence perpetrated by the father against the mother in the presence of the children), would be of great significance when assessing the question of risk to the children. The nature of the mother’s allegations against the father are very serious and include physical abuse, sexual abuse and psychological abuse and threats to kill herself, the children and other people.  The most recent allegation includes a verbal threat to kill the mother, family members and burn the house down.  As noted by the family consultant these allegations are consistent with “ the cohesive controlling typology of family violence” and if the mother account is accepted concerns are raised about the children being at an unacceptable risk of harm in the father care both physically and psychologically. 

8. However, so far as an assessment of the likelihood of the occurrence of those events is concerned, in my view to a very large extent this will depend upon the credit of the parties. 

9. There is some evidence to support the mother’s contention about the father’s aggression. It is significant in my view that the father has admitted to pushing the mother on an occasion which resulted in his arrest, although it appears that this charge against him was not proved as the mother did not give evidence against him for reasons which are in dispute.  The father also informed the family consultant that he had pushed the mother on this occasion and on another occasion had kept the mother out of the house during an argument in Country D in winter.  Generally, the family consultant was of the view that the father provided unclear and inconsistent information about instances of conflict and violence with the mother.  The contact centre records also indicate that the father was demanding and argumentative towards centre staff on 22 October 2015 which caused staff members to feel intimidated and which resulted in the father being sent a warning letter in respect of his behaviour. 

10. However, while proof of an offence to the criminal standard is not determinative when considering risk of harm, it is in my view of some significance that, although the father has been charged with assaulting the mother or contravening an ADVO for her protection on a number of occasions, he has not ever been found guilty of assault and has been found guilty contravening an ADVO on only one occasion.  This offence appears to fall at a lower degree of seriousness for offences of this kind as in respect of the offence in February 2012 a conviction was not recorded. In my view this history is more consistent with the version of events set out in the father’s affidavit.

11. Further, although the contact centre records relied upon by the mother indicate that the father’s behaviour previously has on occasions been described as “aggressive”, it is of significance that the contact service has confirmed that it is prepared to resume the children’s time with their father if that is ordered by the Court. 

12. So far as the most recent allegations against the father are concerned I accept the submission made on his behalf that the content of the text messages is more consistent with being directed at the mother’s brother than at the mother as he contends.

13. In my view, on the limited evidence available, it appears that the children have been exposed to a highly conflictual relationship between the parents and that there has been at least one incident in which the father has perpetrated violence against the mother.  On at least one occasion the father has also breached an apprehended violence order in place to protect the mother but having regard to the penalty that breach does appear to have been of a particularly serious nature. 

14. Although the mother does not make allegations that the father has been abusive towards the two younger children the issue of family violence perpetrated against the mother and the child are significant factors in determining what is in the best interests of all of the children.  If it were the case that Court was satisfied that the father had perpetrated physical violence on the child, it may be that he imposes an unacceptable risk of harm to all of the children if they were to spend unsupervised time with him.  However, if the mother’s application were to be dismissed as the father seeks, a continuation of the current interim orders would not result in the children spending unsupervised time with him.  Bearing in mind that this is an interim application and the issue of family violence has not been determined on a final basis, it would appear that the supervision of the father’s time with the children under the current orders is sufficient to address the risk of harm that may arise to the children on this basis.

15. The other area of particular dispute between the parties relates to the father’s relationship with the child.  The parties give significantly varying accounts of the father’s relationship with the child. The reasons for the breakdown in the relationship between the child and her father are a significant matter in dispute.  It is the father’s case that the mother has poisoned the relationship between the child and himself whereas the mother alleges the father has been aggressive and violent towards the child. 

16. The narrative given by the child to the family consultant on interview impressed the family consultant as being very similar to the account of the mother given to the family consultant and in her affidavit.  The family consultant was also of the view that the child’s presentation was suggestive of having been prepared for the interview and or there being extensive communication between the mother and the child about the allegations.  However, the family consultant was of the view that this does not dismiss the possibility that the child had been exposed to significant family violence and had been assaulted by the father.  She noted particular features such as the child’s narrative being detailed and her affect being consistent with the content and that the child provided “two separate accounts of her physiological reactions to matters related to [the father] which were consistent with her verbal description of her feelings”.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286; [2006] FamCA 1346; (2007) 26 Fam LR 422.

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways including:

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

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

3. The principles underlying these objects include:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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

5. In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  The proceedings have been ongoing for almost two years and trial directions have been made so that trial dates may be allocated.  On 14 December 2015 I made an order that the final hearing of the matter be expedited.  As I understand it, it is likely that the hearing will take place in the first half of 2016.  Under the mother’s proposal the children will not spend any time with their father during this period.

1. Goode (supra) sets a framework for the conduct of interim proceedings.  The court must identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested facts.  For the reasons given the Court must also give some consideration to the matters in dispute especially those which relate to a risk of harm.

2. So far as other orders are concerned, the Court must make such orders as are in the best interests of the child/children as a result of consideration of the matters set out in s 60CC.

3. In relation to the mother’s application concerning the child the child, s 65C of the Act provides that persons other than parents, including any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The mother in these proceedings would undoubtedly be such a person, and is therefore able apply for parenting orders pursuant to this section.

Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court is to consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

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

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

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. In this matter, when applying the primary and additional considerations in relation to the child, the Court must not treat those considerations which specifically relate to parents as if they equally apply to a non-parent party, in this case the mother. 

4. In Donnell & Dovey[5], the Full Court made it clear that if the subject matter of a best interests factor, which is referable only to a parent under section 60CC is also relevant to a non-parent, this should be addressed under section 60CC(3)(m) (“any other fact or circumstance that the Court thinks is relevant”), rather than erroneously treating the non-parent as a parent.  Where such a factor is being considered by me as relevant to the mother, I will do so by application of s 60CC(3)(m).

   [5] [2010] FamCAFC 15.

5. In relation to the first of these primary considerations (relating to the child having a meaningful relationship with both parents), the authorities make it clear that this section does not assume that there is a benefit to the child having a meaningful relationship with each parent but requires the court to assess whether the child will receive the benefit of having a meaningful relationship with each parent. Although the meaning of meaningful relationship is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[6] 

   [6] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

6. In this matter the result of the mother’s application would be that the children would not have a relationship with their father until the matter is determined which will not occur for at least six months.  Having regard to the younger two children’s age (four and two respectively) and in circumstances where so many factual matters remain in dispute, I exercise great caution in making orders which would deny the children such a relationship for this period of time.

7. So far as the child is concerned however, there is no dispute between the parties that she has not spent any time with her father or had any contact with him for some time and the relationship is currently fractured.  There are currently no orders in place with respect to the child.  Currently there are no prospects that this arrangement will change and there will be no practical difference between making the orders sought by the mother with respect to the child or dismissing that application (with the result that there are no orders in place with respect to the child).  Neither proposal will result in the child having a meaningful relationship with her biological parents.

8. It appears from the undisputed facts and the family consultant’s assessment (albeit that that assessment is untested) that the child is estranged from both of her biological parents which the family consultant opines is “unlikely to be in [the child’s] best interests”. However, the family consultant also says “ it is not recommended that [the child’s] parenting order prioritises her need to have a relationship with a biological parent over her physical or psychological well-being.

9. The suspension of the orders for the younger children’s time with their father as proposed by the mother is to large extent based upon the primary consideration of the need to protect the children from psychological harm from being exposed to family violence.  In particular as the mother’s change of attitude towards the children’s time with their father resulted from the incident in November 2015 which led to his arrest.  For the reasons previously given I am unable determine the veracity of each of the parents’ accounts. Given the father’s concessions about some violent conduct in the past, some concerns do arise in this regard.

10. So far as the child is concerned, the family consultant is of the view that if the father had assaulted her on a number of occasions “it may be highly distressing” for the child to spend time with the father.  The family consultant expressed the view that even if the court found that there was no veracity to the allegations of family violence, the child appeared to believe that the father posed risk of harm to her and that therapeutic assistance would be required to assist the child feeling comfortable spending time with him.  It appears that interim orders have been made in relation to the child participating in family counselling to address her relationship with the father but at the time of the hearing I had no information about whether this had occurred.

11. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. I will refer to those which are relevant in this case.

Any views expressed by the children and any factors underlying their views

1. The child expressed very negative views concerning her father to the family consultant.  She said definitely to the family consultant that she would not go if it was decided that she should spend time with her father.  When explained that an order may be made to this effect she said

   I will go but I won’t talk to him or anything. 

   She also told the family consultant that she did not want to see her father ever again.

2. The family consultant was of the view that given the child’s age and development, only some weight should be placed on her view about parenting arrangements.

3. The younger two children F and G were not interviewed due to their age and their views are unknown. 

The nature of the relationship of the children with each of their parents, and other significant persons

1. It is clear from the family consultant’s report that the child believes that the mother in these proceedings is her mother.  The family consultant describes the mother as the child’s “psychological parent for much of her life…. and… her primary care giver for some time”.

2. Although the family consultant did not recommend that much weight be attached to the child’s views, she noted that the child’s narrative “was indicative of the state of her current relationship”.  As previously noted, it does not appear to be in dispute that the child has not spend any time with the father for a significant period and that their relationship has broken down, although the cause of the breakdown is in dispute.  The family consultant recommends that the Court place significant weight on the state of the child’s relationship with the father when considering the most suitable parenting orders. 

3. At the time of the family report interviews in January 2015 the father appeared to the family consultant to be in the process of re-establishing his relationship with F and G through spending time with them at the contact centre.  This continued to occur on a two weekly basis until November 2015 when the children’s time with their father was suspended by the mother following his arrest.  The family consultant observed comfortable interactions between the parties’ younger children and the father during the observation session.  These interactions were consistent with observation made by staff at the contact centre.  The family consultant expressed the opinion that “it would appear that, from a relational perspective, [F] and [G] would be able to tolerate to unsupervised time with the [father]”.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the children

1. The father has consistently sought to spend time with the children following separation.  There have been some failed attempts to have the child spend time with him which appear to have failed to a large extent due to the child’s lack of cooperation and the way the father approached the matter.  The father did regularly spend time with the two younger children prior to the contact centre suspending the orders. 

2. The mother appears to have effectively made all of the decisions in relation to the children since separation, though the reasons for this occurring are in dispute. 

3. So far as the child is concerned, it is of significance that neither of her biological parents have been making decisions relating to her and that even though the father has held responsibility akin to sole parental responsibility for many years he has not exercised it since separation.  If the Court declines to make an order with respect to parental responsibility for the child, she will be left in the unsatisfactory circumstance in which she is living with a person who she perceives as her parent and who makes all decisions concerning her, but does not hold legal parental responsibility and that the person who holds responsibility for her is estranged from her.

Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived

1. If the order suspending the two younger children’s time with their father is made as proposed by the mother, there will be no change in their circumstances other than that they will not spend time with their father for a couple of hours each fortnight for approximately another six months.  Having regard to the age of these children there is a risk that this will damage their relationship with their father which took some time to rebuild.

2. So far as the child is concerned, as stated above, there will be no practical change in her circumstances in the event that the mother’s proposed orders are made or her application is dismissed.

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

1. The mother has demonstrated that she has been a capable parent and primary care giver for her children and been the child’s psychological parent and caregiver exclusively since separation. 

2. The family consultant was of the opinion that the father appeared to be “highly preoccupied with ideas about [the mother’s] relationships with men” when discussing the child and was of the opinion that he had limited ability to focus on the child’s needs.  His narrative of events in the proceedings is consistent with this opinion.

3. The issue of parenting capacity will undoubtedly be of significance in the final hearing. However, at this stage when the court is only required to consider whether limited supervised time with the younger two children is in the children’s best interest and where the child will continue to remain living with the mother and spending no time with her father regardless of the orders made, this consideration is of less significance.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. These factors will be of significance in the final proceedings but are not particularly weighty in the application in respect to interim orders.

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

1. Although in the opinion of the family consultant the mother does appear to have exposed the child and possibly the other children to negative views about the father, if the court accepts the allegations of family violence, some of her behaviour may be considered protective towards the children and responsive to their needs. 

Any family violence involving the child or a member of child’s family

1. Family violence is of particular significance in these proceedings.  The mother makes extremely serious allegations against the father of abuse perpetrated against her to which the children have been exposed and that he has physically abused the child.  It will undoubtedly be a matter of great significance in the final hearing. 

2. On an interim stage when matters of credit cannot be assessed, it is not possible to make any findings.  However, it is to be noted that even on the father’s version of events he has been found guilty on one occasion of breaching an ADVO and admits to having pushed the mother. The application at this stage only relates to the younger two children having supervised time with their father and the risk of harm is significantly mitigated by supervision.

Parental responsibility

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

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

3. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. The presumption does not apply if:

   ·There are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s  61DA(2)) or

   ·When the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)).

5. At this interim stage, in my view, it would not be appropriate in the circumstances to apply the presumption under s 61DA(1) of the Act that it is in the best interests of the younger children for the parents to have equal shared parental responsibility for them as so many critical facts relating to their best interests are unknown or in dispute (s 61DA(3)), and there seems to be no capacity for them to currently make joint decisions with respect to the children. So far as the child is concerned, her mother is not participating in the proceedings and her father is estranged from her.

Conclusion

1. Prior to the contact centre suspending the younger children’s time with their father in November 2015, that time was the only way in which their relationship with their father was promoted.  A reinstatement of that supervised time would give the children the benefit of having some relationship with their father at a stage where I am unable to positively find that there is no benefit to them of that relationship.  The supervised setting would also ensure that the children are protected from harm from being subjected to or exposed to abuse or family violence. 

2. The likely effect of the children continuing to have no relationship with their father, having regard to their age, is that that relationship will deteriorate over the next months in which the suspension will continue.  Having regard to the nature of relationship between the father and the two younger children, in my view it is important and in their best interests that such a relationship be supported in a manner which also ensures the children’s protection from harm until the proceedings are determined on a final basis.

3. So far as the child is concerned, for the reasons given, in my view it is not currently possible for the child to have a relationship with either of her biological parents and her physical and psychological wellbeing must be prioritised.  The reality is that the mother in these proceedings is the only adult taking responsibility for the child with whom the child has a parent-like relationship. The mother is undoubtedly a person who is “concerned with the care, welfare or development of the child”. For these reasons the orders made on 14 December 2015 with respect to the child were made. 

4. For the reasons set out in this Judgment, I dismiss the mother’s application that the orders of 14 April 2014 with respect to F and G with their father be suspended.  However, as I am of the view that there is some risk to the mother to which the children may be exposed if the father comes into contact with the mother, I am therefore of the view that it is appropriate to make the order sought that the father be restrained from attending at or being within 200m of the residence or place of employment of the mother.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered 22 January 2016.

Legal Associate: 

Date:  22 January 2016