Reagan and Wentworth

FAMILY COURT OF AUSTRALIA

REAGAN & WENTWORTH

[2017] FamCA 392

FAMILY LAW – CHILDREN – Best interests – Undefended – Where there is no appearance by or on behalf of the mother – Where the mother has been given adequate notice of the proceedings – Where it is appropriate to proceed with hearing the matter on an undefended basis – Where there is one child who is six years of age – Where the Independent Children’s Lawyer supports the father’s application – Where orders are made in terms of the father’s application that the child live with the father and spend time with the mother as agreed.

Family Law Act 1975 (Cth) ss 60CA, 60CC

M v M (1988) 166 CLR 69

APPLICANT:

Mr Reagan

RESPONDENT:

Ms Wentworth

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW - Parramatta Family Law

FILE NUMBER:

PAC

5760

2015

DATE DELIVERED:

22 May 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATE:

22 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

McIntosh McPhillamy & Co Legal Services

RESPONDENT:

There was no appearance by or on behalf of the Respondent

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW –
Parramatta Family Law

Orders

Notation

The Court Noted that there was no appearance by or on behalf of the mother and the following orders were made on an undefended basis.

Orders

The father shall have sole parental responsibility for the child M, born … 2010 (“the child”).
The child shall live with the father.
The child shall spend such time with the mother and on such conditions as the parents may agree upon in writing.
The Court Noted that for the purposes of the hearing listed to commence today, the father proposed that in default of agreement between the parents, the child should spend time with the mother:
a.including time over alternate weekends and an afternoon in the intervening week during school terms, overnight time during school holidays and on specified special days;
b.with that time being supervised by a supervisor agreed between the parties and in default of agreement by the Inter-relate Contact Centre at C Town and that the supervision of the mother’s time with the child would continue until such time as the mother can demonstrate by way of a report from her treating psychologist that:
i.      she has complied with any medication prescribed to her; and
ii.     she has engaged in at least 15 sessions with a clinical psychologist in a period of 12 months; and
iii.     she has completed all psycho-educative courses recommended by her treating medical professionals; and
iv.     she undertakes and completes a circle of security parenting course; and
v.      she has demonstrated psychological stability for 12 months consecutively.
The parents shall communicate about the ongoing care and welfare of the child by text or email only with such communication being respectful and shall be in relation to topics regarding the child’s care only.
Each parent and all family members shall be at liberty to attend any school, sporting or extracurricular event to which the child attends regardless of where the child is that day living or spending time.
Each parent shall have authority as is necessary to obtain information as would normally be available to a parent from any professional, body or organisation that holds information about the child including but not limited to doctors, hospitals, schools and sporting associations.
Each parent shall forthwith notify the other at the earliest opportunity if the child is required to attend upon a doctor or a hospital for any reason.
Each parent shall forthwith notify the other of any medical, therapist, school or any such other appointment concerning the child at the earliest opportunity but not less than 24 hours prior to that appointment.
Each parent shall forthwith notify the other of any major health issue concerning the child which comes to the attention of that parent whilst he is in his or her care.
That each parent shall be restrained from denigrating the other parent or a member of his or her household to or in the presence of the child and from permitting another person to do so.
That each parent shall keep the other informed or his or her current landline and mobile telephone number.
In the event that a parent proposes to change the place where the child normally lives then he/she shall provide the other parent with not less than 21 days prior written notice of the new address.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Reagan & Wentworth 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: PAC5760 of 2015

Mr Reagan

Applicant

And

Ms Wentworth

Respondent

EX TEMPORE JUDGMENT

These are parenting proceedings. The matter was listed for hearing over seven days commencing today. The proceedings relate to M (the child”), who is six years of age. The applications of the parents were reciprocal applications. Each of them sought that they would have sole parental responsibility; that the child would live with them and have supervised time with the other parent.
When the matter was called on this morning, the father and the Independent Children’s Lawyer (“ICL”) were represented by counsel. The mother did not appear when the matter was called. I was asked to read a letter addressed to the solicitor for the father, being a letter dated 18 May 2017. Evidence is available that the letter was delivered to the father’s solicitor’s offices by another solicitor or by another firm. Omitting the formal parts, the letter which is apparently signed by the mother, reads:
I’m writing to inform you that I do not intend to appear at Court at the hearing of the parenting matter relating to [the child]. I have exhausted all of my finances and am bankrupt. I cannot afford to be legally represented, and I feel that I will not be able to adequately represent myself so that my case is properly made in Court. I cannot afford any further costs in this matter. I feel disempowered by the Court process and subjected to further control and abuse by [Mr Reagan] (that is the father).
I have lately tried to settle this matter by agreement with [Mr Reagan], in an effort to avoid there being further costs. I offered to agree to the majority of the orders that he was seeking. However, [Mr Reagan] completely refused to negotiate with me and try and avoid this matter going to the hearing. I feel that this is yet another example of how [Mr Reagan] has tried to control me and not make decisions that were in [the child’s] best interests.
I want to be able to have a meaningful relationship with [the child] and spend time with him, like any other mother wants with their child. the child was in my care for the first six years of his life and was safe and well. I have always tried to act in [the child’s] best interests and think about what he would want. This whole Court matter has turned mine and the child’s lives upside down. Yours sincerely, [Ms Wentworth].
The matter was called, and there was no appearance by or on behalf of the mother. I asked the ICL to telephone the mother, to ensure that the mother was determined to take no part in the proceedings. It is topical at the moment that victims of domestic violence have difficulty in defending themselves or in representing themselves.
This Court has policies aimed at attempting to assist with that process. They are advertised in the Registry in posters and on the Court’s website. They include safety plans for access and egress to and from the Registry. They include the facility for a witness or a party to attend at a hearing from a remote location or from a proximate location by video link. There are mechanisms that would assist a litigant in person with the processes of cross-examination. For example, a judicial officer can ask questions on behalf of a party, or perhaps, properly instructed, the ICL might be able to address matters of particular concern.
I say all that not because there is any evidence that the mother is a victim of domestic violence but just to address the issues she has raised in her material. At the end of the day, these are proceedings that were commenced in 2015. A huge investment has been made in these proceedings, emotional and financial, on behalf of the parties and on behalf of the taxpayer. The matter was listed for hearing over seven days, starting today. Vanishingly few cases are listed for more than a week in this jurisdiction. The mother has been extremely discourteous in abandoning the proceedings at such a late stage. There is no suggestion as to why she could not have given notice earlier and saved some of the costs associated with this final trial.
In any event, that is the situation. The father has given notice in an amended application of the orders he seeks. The ICL would normally identify proposed orders over the course of the trial, with the assistance of the testing of evidence and so on, but does not oppose, and indeed supports, the thrust of the orders sought on behalf of the father. The mother has notice of the issues in the proceedings. In my view, this is an appropriate matter to be dealt with on an undefended basis against her.
As I said to the parties, this does not represent a hearing on the merits in the sense that there is any testing of the evidence. Should the mother belatedly or at some time in the future feel as though she is able to have carriage of her own matter or press her Response to the father’s application, then subject to issues of notice and fairness and other matters, there could be a hearing on the merits of those claims.

Short History

The short history has the father born in 1984. He is 32 years of age. The mother was born in 1984 and is also 32 years of age. The parties commenced their relationship in September 2005 and separated on a final basis, there having been several intermediate separations, in December 2013. The child was born in 2010 and is six years of age. The father and his current partner have a child, D, born in 2016.
On 16 November 2015, the father commenced family law proceedings in the Town B Local Court and on 19 November, those proceedings were transferred to this Court. On 22 December 2015, orders were made to allocate the matter to the Magellan program and an ICL was appointed. On 22 February 2016, a Magellan report was provided to the Court. On 14 March 2016, on the application of the father, orders were made, pending an interim hearing, that the child live with the father at the home of the paternal grandmother.
On 16 March 2016, orders were made granting leave to the Secretary of the Department of Family and Community Services (“the Department”) to intervene in the proceedings. By consent, the orders of 14 March were extended to 24 March. Orders were also made providing for the child to spend specific times with the mother, supervised by the maternal grandmother.
On 24 March 2016, orders were made by consent, including orders appointing Ms A, a clinical psychologist, as a single expert in the matter and providing that the child live with the father and spend time with the mother from 3.00 pm to 6.30 pm each Thursday and from 3.00 pm Friday to 9.00 am Monday every second weekend. The mother’s time was to be exercised in the presence of a person approved by the Department and she was to live with her mother or with another person approved by the Department. As at the date of those orders, the mother was living in Town B and the father lived with his partner in Town N.
The mother commenced spending time with the child largely in accordance with the orders, under the supervision of one of four supervisors approved by the Department. On 30 March 2016, an application for an Apprehended Violence Order (“AVO”) against the father, was withdrawn. On 6 September 2016, the expert report, Ms A’s report, was released.
On 3 November 2016, the father was notified that the Department had withdrawn its approval for the current supervisors. Thereafter the child did not spend overnight time with the mother until late November 2016. The father gave evidence that he facilitated extra daytime visits. On 13 December 2016, trial directions were made, including for the filing of the parties’ evidence. An order was also made permitting the father to enrol the child at Town N Public School for the start of the 2017 year and to provide for time with the mother over the Christmas/New Year holiday period.
As I say, in 2016, D was born to the father and Ms D. On 30 January 2017, the child commenced attending at Town N Public School. On 27 April 2017, the Department withdrew from the proceedings. Sadly, the mother has not spent time with the child since 5 February 2017.

Parenting Proceedings

The legislation covering these proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider primary and additional considerations. The sequence of decision-making starts with parental responsibility. And there are issues of presumptions that arise in certain circumstances.
I will identify the proposals, refer to what findings might be available, consider those findings, make a decision about parental responsibility, and make findings relevant to living arrangements.
The parties had reciprocal propositions, as I indicated. The father had sought that he have parental responsibility, that the child live with him. The father sought that the mother have time as agreed, but in default of agreement, that there be time during the school term, one afternoon each alternate week, and over the weekend each alternate week. He sought time on the middle weekend of each of the shorter school holidays, two periods of three nights during the Christmas school holidays, and orders for special days. He sought that those times be supervised, and again in default of agreement, through an agency at C Town. The mother does not seek any orders in these proceedings.
In relation to evidence, I have read the father’s trial affidavit. I read the mother’s trial affidavit. There is no one here to rely on that document but Mr Guterres on behalf of the ICL asked me to read it.
As to the primary considerations, the first consideration is the benefit to a child of having a meaningful relationship with both of the child’s parents. A “meaningful relationship” or a “meaningful involvement” is one which is important, significant and valuable to a child.
That inquiry is prospective. It requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that directive, this consideration requires the Court to think of the benefit to the child of having a meaningful relationship with both parents. Even if that benefit is established, it must still be weighed along with the other relevant factors.
Each of the parents sought orders that the child spend time with the other parent. The father says in his affidavit that he knows that the mother and the child love each other and he does not wish to prevent the child from having a meaningful relationship with his mother. Ms A refers to her observations of the child with each of the parents. In my view, each of the parties has a meaningful relationship with the child, and subject to the issues of safety and other considerations, any orders made should support those relationships.
The second of the two primary considerations is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The father makes some allegations in relation to the mother’s mental health, and in particular expresses concern about the impact on the child of allegations made by the mother against him.
That probably does not fall within the definition of “abuse or violence”. “Abuse” is defined as an assault, including a sexual assault; I summarise: the use of a child for sexual purposes; causing a child to suffer serious psychological harm, including but not limited to when the harm is caused by a child being subjected to or exposed to family violence; or serious neglect. And I do not know that the father’s allegations fall into those categories.
As to violence, it means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”. Examples include an assault, sexual assault, stalking, derogatory taunts, damaging property, causing death or injury to an animal, unreasonably denying the family member the financial autonomy he or she would otherwise have, withholding financial support, preventing a family member from keeping connections with family, unlawfully depriving a family member or any member of the family member’s family of his or her liberty. And what it means to “expose” a child to family violence is also defined in the legislation.
In M v M (1988) 166 CLR 69, the High Court distinguished the role of this Court as against the role of Courts dealing with criminal activity in making findings about abuse or violence. The concern identified there is a concern arising from risk rather than the requirement to find that defined events have occurred or have not occurred. In the past I gather the mother has made all manner of allegations against the father. Her trial affidavit contains general statements such as:
Any mental health issue I suffered in the past was due to the emotionally, sexually and psychologically abusive relationship I was in with [Mr Reagan].
The only specific allegation contained in that affidavit is that on 16 February 2017, at 3.20 pm, during a phone call from the father to the mother, he said:
Even if you are able to prove what I did to you at the trial, you won’t get the child back. He will go into foster care and he won’t have either of us. Do you want this to happen to him, [Ms Wentworth]?
The mother was acting for herself. Had she appeared I might have asked her about this issue. If the mother made serious allegations in the proceedings, she was obliged to file a Notice of Risk to identify allegations made by her. Presumably there would have been an affidavit on file that contained detailed allegations. Ms A has referred to some allegations made by the mother. The father addresses what he imagines are the mother’s allegations. He says that most of the allegations made against him by the mother are simply untrue and that other incidents are being completely misrepresented or taken out of context.

In particular, he says he has never been verbally or physically abusive towards the mother and he has not sexually assaulted her. He said that he has neither forced or encouraged the mother to engage in sexual acts with him or other people. He did not make the mother work in a brothel or as a stripper. He deposed:
I have not urinated on her, abused her, isolated her, prevented her from maintaining friendships, attending social events, seeing her family or engaging in employment.
He said that he did not restrict the mother’s food intake, humiliate her about her weight or act in a controlling manner. The father deposed that he had not been physically abusive towards the child or hit or struck him in any way. He has not kicked the child for not running fast enough. He has not exposed the child to sexual contact between Ms D and himself. He has not intentionally harmed an animal.
Ms A opines that there is limited support for the mother’s allegations that the father perpetrated violence upon her, was abusive or that he neglected the child. It is Ms A’s opinion that the child is not at any appreciable risk of harm in the care of the father; rather, he is at risk of psychological harm in the mother’s care should she continue to make allegations against the father, subject the child to the conflict between her and the father or withhold him from the father. Ms A is of the opinion that the allegations made by the mother against the father may have been made up in the context of her jealousy of the father’s new relationship.
In summary there are no allegations of substance against the father. There is one allegation in relation to a telephone call. The father has not had an opportunity to address that, because the mother is not here to be cross-examined on her affidavit. It may be that he denies the substance of the phone call or denies that it occurred at all. But for the allowance from Mr Guterres, I would not even know of that allegation. In terms of the primary consideration, there are no relevant allegations. Were there relevant allegations, the Act provides that protecting the child would have priority over a meaningful relationship with his parents.
Nextly there are additional considerations, firstly any views expressed by a child and factors such as the child’s maturity level or understanding that the Court thinks are relevant to the weight that should be given to those views. Ms A recorded that the child told her he would like to see his mother more, and not just on weekends. She summarised the child’s wishes: that he would like to spend time with both his parents, including more time with his mother than he currently spends. Ms A said that limited weight could be placed on his wishes due to his age, maturity and ability to understand the concept of what he wants.
In the Magellan report, concern was expressed by the Department in relation to the child’s responses to departmental officers. It was noted that he would not answer questions about his activities with his mother. He appeared to have difficulty remembering “what he should say” in relation to his time with his father; that he showed pride when he could remember what he was to say and concern when he could not. I understood the import of those comments to be that the departmental officers considered that the child was coached or otherwise influenced to be critical of his father.
As to the nature of the relationships of the child with each of the parents and others, Ms A recorded her observations of the child with the mother. She said that he was excited to see her and appeared to enjoy spending time with her. He sought out the mother’s attention, proximity and affection and displayed a desire to stay with her at the end of the session. She observed the child to be polite and cooperative with the maternal grandmother.
Ms A observed the child to be comfortable and at ease with both the father and Ms D. They have strong bonds. She reported the child used them as a secure base from which to explore. Similar to the mother, the child sought out the father and Ms D’s attention, proximity and affection.
As to the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making, spend time with the child and communicate with the child, the history refers to an application for an AVO in August 2015 but does not actually say there was an AVO. I assume there was. If there was, then I gather that prevented the father from having contact with the child from that time until the 14 March 2016 orders. There is no evidence that the father has failed to take any opportunity subsequent to that to spend time with the child or communicate with the child. Since February 2017, the mother has failed to take her opportunities to spend time with the child, as I have indicated.
Some criteria do not seem to be particularly relevant and I will skip over them. As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or others, Ms A reported that the child would benefit from ongoing stability in his parenting arrangements. I think what she meant there was it would be good for the child if there was stability in his parenting arrangements. There has not been much stability, in a sense, because he was denied time with his father for seven months and then he has had no time with his mother since February of this year. Ms A said that despite the child expressing the view that he would like to spend more time with his mother, she felt that he would adapt (to less time).
This is a very serious and concerning aspect of the case. Under the current regime, the mother is to have supervised time. She addressed in her affidavit her ambivalence about that or a quandary about that. If effect, she cannot manage it. Nothing is going to change. The father proposes, for reasons that seem well-supported, that the mother’s time be supervised for the time being. The conditions that he foreshadowed in his application would run for at least 12 months. He talked about the mother being compliant with medication, having a therapeutic relationship with a psychologist for 12 months, attending certain courses and having in effect a clean bill of health after that time from the psychologist. The mother is on record as saying that she cannot manage supervised time.
The most likely outcome at the moment is that the child will not have any contact with his mother for the foreseeable future. That is of grave concern. In certain circumstances, of course, such a separation is necessary. If a parent dies or a parent moves overseas then it is just not practicable for there to be close contact and communication between a child and a parent. But children need relationships with their parents, as a general proposition. It can have an adverse impact on a child’s development if that contact is lacking.
As to the practical difficulties and expense of a child spending time with or communicating with the other parent, it does not really arise at the moment. There would be some cost if there is a commercial supervision arrangement but at the moment the mother cannot agree to supervision. I gather that the supervision arrangement that was curtailed by the Department was one involving significantly or totally relatives of the mother or contacts of the mother. Such an arrangement is unlikely to be agreed to by the father. Otherwise, the mother lives and works in Town B and the father is at Town N with the child. So there is some physical distance. But that is not the main problem in the case.
As to the capacity of the parents, in the Magellan report it was revealed, arising out of action commenced by the Department on 30 December 2015, that the Department considered the child to be a child in need of care and protection due to concerns with the mother’s mental health and the impact that that might have on her capacity to provide consistent, reliable care for him. They also held concerns for the potential psychological harm to the child from being exposed to the mother’s continual allegations against the father. A risk of psychological harm was identified, although not at the level of a risk of serious harm. The assessment also referred to concerns in regard to the allegations made against the father by the mother. But the Department had insufficient evidence to substantiate those allegations.
Finally, the Department reported in December 2015, significant concerns about the long-term negative impact of a continued separation between the father and the son, which had operated up until that time. And the Department formed the view that the child’s ongoing development and wellbeing would be positively impacted by re-establishment of his relationship with his father as soon as possible.
In her report, Ms A referred to the father’s criminal history, which included possession of unauthorised firearms, receiving stolen goods and “supply drugs”, all from 2006, and a mid-range “drive under the influence” from 2014. She noted the absence of convictions for violence offences. That would be relevant, I gather, to some of the allegations that had been made by the mother.
She described the father as having a sound understanding of children’s needs, appropriate parenting practices, and a child-focused approach to parenting. She was, however, concerned as to the mother’s capacity to prioritise and meet the child’s emotional needs, and that the mother’s lack of insight into her own condition may impair her capacity to adequately discharge the responsibilities parenthood entails.
She noted that the history given by the mother did not match the history she had reported to other professionals. She recorded that the mother has a lengthy history of mental health problems that have affected her parenting of the child and place him at risk of harm. She expressed a view that in light of the mother’s past actions, there is a concern as to her ability to promote the father positively to the child and encourage a close relationship between the father and the child. On the other hand, she was of the opinion that the father is child-focused, could continue to be so and is able to facilitate and encourage a relationship between the child and the mother.
In the mother’s affidavit, she says that she did not accept the recommendations and observations of Ms A. And for example, it was her contention that Ms A had wrongly linked the mother’s tattoos with self-harm and anger. The mother deposed that the father has tattoos which include the words “remember the pain” written on his chest in the style of knife slashes and blood-drops.
The mother addressed Ms A’s concerns in her affidavit. She deposed that she did not intentionally speak badly about the father in the presence of the child and that if she had done that by accident, she apologised. She will not do that in the future, she said. She had undertaken recommended parenting courses including Relationship Australia’s Parenting after Separation and the six-week program Managing Strong Emotions. The mother had learnt from those courses that speaking badly about the other parent is not appropriate around small children. She says she has never tried to brainwash the child against his father.
The mother has not spent time with the child since February 2017. In her affidavit, she responded to the criticism made about her failure to spend time with the child, saying:
I do not know what is best for my son in this terrible situation.
She said that while understanding the impact on the child’s emotional development and her relationship with him, she felt that she had become completely disempowered as his mother by the restrictions imposed on the mother-and-child relationship by the Court-ordered supervision. She quoted a series of questions posed to her by the child about the need for supervision, about their inability to stay overnight together and to share more flexible activities. She referred to him asking about going to the beach.
There is nothing particular about the maturity, sex, lifestyle, background of the child. No particular ethnicity or Aboriginal connection.
As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, it is difficult. On the face of it, the mother has in effect abandoned the child. Who knows what the circumstances are. She has a very odd case. Her affidavit says she does not have any mental health issues and yet in effect, even her representation to the ICL today she said that she could not take part in the hearing because of her mental health.
Parenting throws up some quite complicated issues. Perhaps it is the labels that the mother has rejected. She rejects that she has ever been diagnosed as having bipolar disorder. The background evidence suggests that the mother has had compromised mental health. That is the conclusion of Ms A. It seems to be supported by the mother’s attitude to the trial. That is not something that she can be criticised for. Mental health conditions can be very debilitating and can affect the capacity of a person to accept treatment. There may be no successful treatment available. The mother cannot be criticised if that is the case. At the moment, the mother says, she is just not in a position to take up her responsibilities.
I have referred to what I know about family violence. In the background, there are obviously a raft of allegations made against the father. I know more about them from what he said in denying them than I do about what the mother has said in making them. The categories of things that he has raised in his rejection of the allegations are very serious. If a Court was satisfied that anything like those things had been done by him, the Court would be very concerned about his capacity to care for the child. Again, the allegations are not even made and so cannot be subject to any scrutiny or testing.
As to parental responsibility, there is a presumption about parental responsibility being equally shared. That presumption probably applies in the odd circumstances of this case, because the allegations of the parties do not seem to fall within the definitions of “abuse” and “violence”. But on any view, it is not practicable for the parties to share parental responsibility. They do not communicate in any effective way. Whereas the father has to have parental responsibility because the child will be living with him under the only application that is before me, I cannot see a way of the mother sharing parental responsibility with him. On the mother’s own evidence, she is completely disempowered or destabilised by the father. They are not going to be able to engage in any meaningful process. The parental responsibility will fall to the father. In terms of the other orders – I have distributed a draft of what I was proposing to the legal representatives.
I propose to order that the child live with the father and that the child spend such time with the mother and on such conditions as the parents may agree in writing. As I have noted it may be that the father would take a slightly different view of his proposed orders, as a result of the mother not taking part in these proceedings or he might take a slightly different view at some time in the future.
That is a matter for him, but at least the father’s proposals makes clear on the record that the father’s application was that the mother have time with the child; that it be meaningful overnight, regular time, school term and school holidays; that it be supervised, but that the supervision not be limited to supervisors that are connected with the father only. I appreciate you cannot have alternate weekends supervised by the Interrelate Centre at C Town. But these are the father’s proposals.
I have also taken up the ancillary orders that the father sought: that the parents’ communication be by text or email and be polite; that the parents and family members are at liberty to attend school, sporting or extracurricular events; that the parents, each of them, can get information from a school or hospital or whatever – I think that just states the general position at law; that the parents notify each other of any problems – that really bears on the father rather than the mother; that he give notification of important appointments, health issues; that the parents not denigrate each other; that there be information for telephone communication and changes of address.
I note that there was no appearance by or on behalf of the mother and that the following orders were made on an undefended basis.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the extempore judgment of the Honourable Justice Loughnan delivered on 22 May 2017.

Associate:

Date: 7 June 2017

[2017] FamCA 392

22 May 2017

Key Legal Topics

Areas of Law

Family Law