Rickard and Clement

[2008] FMCAfam 865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RICKARD & CLEMENT [2008] FMCAfam 865

FAMILY LAW – Parenting orders – undefended hearing – assistance given by Aboriginal Community Justice Group.

Family Law Act1975 (Cth), 60CA, 60CC

Applicant: MR RICKARD

Respondent: MS CLEMENT

File Number: CSC 117 of 2008

Judgment of: Coates FM

Hearing date: 5 August 2008

Date of Last Submission: 5 August 2008

Delivered at: Cairns

Delivered on: 5 August 2008

REPRESENTATION

Solicitors for the Applicant: Edna Cuthbertson & Co.

No Appearance on behalf of the Respondent

ORDERS

1. The child [X] born in 2006 live with the father.

2. The father have sole parental responsibility for making decisions about major long-term issues for the child.

3. The child spend time with the mother at all times as agreed between the parties.

4. The father and the mother are to keep each other informed of their residential addresses and telephone numbers, both mobile and landline. If there are any changes the other parent should be notified within 48 hours.

5. Each parent shall notify the other on any injury or illness occurring to the child as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Rickard & Clement is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS

CSC 117 of 2008

MR RICKARD

Applicant

And

MS CLEMENT

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father of [X], born in 2006, for orders that the child live with him and further, that he have sole parental responsibility for making decisions about the child's long terms issues, and further, that the mother spend time with the child by agreement.

2. The mother has not taken part in these proceedings although I am satisfied that she has been served with the documents and she was served by either a police officer or an employee at the Palm Island police station and I am satisfied she was served with all the necessary applications and affidavits so that she would know and appreciate what the application was about.

3. Now it appears on the evidence which I accept because the mother is not here to question that evidence or, in fact, not here to challenge that evidence, that the mother unfortunately has an alcohol problem and has, from time to time, left the child in the father's care.  That is unfortunate because, no doubt, a relationship with both of the child's parents would be of great benefit to the child.

4. In any case by way of a little background, the father is aged 43 and the mother is aged 37. 

5. They live at Coen which is on Cape York Peninsula and they had a relationship from about February 2004 until about 19 April 2007. 

6. They met each other in Coen through one of the mother's uncles.

7. From the relationship the child, [X], was born and it appears that while the couple were together there were some issues regarding alcohol but on 19 April 2007, I am told in the evidence, the mother voluntarily admitted herself to rehabilitation at the [omitted] Hospital. 

8. It does not appear on the evidence that the relationship got back on track after that.  In fact, it appears that even before that date there had been problems between the parents and it was unfortunate that in February 2007 there was an incident of domestic violence where the mother allegedly held a knife against the father's throat. 

9. That caused an application for a domestic violence order to be made by police at Coen and that order was granted on 24 May 2007 against the mother.

10. She was ordered to be of good behaviour towards the father and on the evidence put before the state Magistrates Court, an order was made which is in force until 23 May 2009, so it is a two year order which must have suggested to the State Magistrate that it was a serious incident.

11. The Department of Child Safety had been involved with [X] from

    
    25 August 2006

    . The department became involved when there was a car accident and [X] was not restrained in a seatbelt. The department stepped in then and it also stepped in at a later stage to ensure [X]'s safety. That was in January 2007 after a drinking party was held at the parents' house.

12. A safety plan was put into place after a family conference on 10 April 2007 and agreements were reached by the parties. The first agreement was that the father not drink alcohol with the child present and that if he wants to drink, and that's a lawful activity, that he leave the child with another family member and from what I understand she has a large extended family in Coen. The second agreement was that he not take her home until he was sober. There were also other agreements in that safety plan whereby the father will go to those family members to assist in meeting his daughter's care.

13. It seems that he availed himself of that safety plan and in due course the department decided that he was a fit and proper parent to look after his daughter. 

14. When making any parenting order I am to consider, under s.60CA of the Family Law Act1975 the child's best interests as the paramount consideration.

15. To determine the best interests of the child, the Act sets out in s.60CC, the considerations. 

16. Now the primary considerations are in s.60CC(2), looking at the benefit the child can have with both of the parents, that is the benefit of a meaningful relationship and the need to protect the child from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.  Making those considerations the primary consideration is consistent with the objects of the Act at s.60.

17. The objects, briefly, are to ensure the child has the benefit of both parents having a meaningful relationship in her life to the maximum extent consistent with the best interests of the child.  It also means protecting the child from physical or psychological harm, ensuring that the child receives adequate and proper parenting and ensuring the parents fulfil their duties to the child.  The principles are that the child or the children have a right to know and to be cared for by both parents, that they have a right to spend time on a regular basis and communicate on a regular basis with both parents, that parents jointly share the duties and responsibilities of caring for the child and that both parents agree to the future of the parenting for the child and that children have a right to enjoy their culture if there are cultural considerations.

18. It is difficult in this case to make orders for the child to have the benefit of a meaningful relationship with her mother because her mother unfortunately seems to have alcohol problems.  However I am satisfied on the evidence that where possible the father will keep the mother involved with her child if the father decides in the best interests of the child that should occur. In doing that, of course, he is aware that he needs to protect the child from physical or psychological harm which the child could be exposed to if the mother is under the influence of alcohol.

19. I am to look at other considerations. I am to look at any view expressed by the child. This child is far too young to express a view. 

20. I am to look at the nature of the relationship of the child and her parents. It is the father here who has the relationship well in hand. It is the father who is applying for the parenting orders.  It is the father who is the best person placed to look after his daughter at this stage.

21. I am also to look at other people who may be involved, such as grandparents or relatives and the father tells me that the child has a large extended family in Coen and, in fact, they have assisted him through the Coen Justice Group in seeking these orders and, in fact, with looking after the child. 

22. I am to look at any likely effect of changes in the child's circumstances but the child is already in the father's care so that is not an issue which I need to consider. 

23. I am to look at the practical difficulty and expense of the child spending time communicating with the parent. The mother simply places herself at locations without alerting the father as to where she is.  It took a long time for the father and his solicitor to locate the mother.  She was finally served on Palm Island with the documents relating to this case, so it may be that there is a practical difficulty and expense of the child spending time communicating with the mother but that is not an issue which is caused by the father.

24. I am to look at the capacity of each parent to provide for the needs of the child including emotional and intellectual needs. It appears to me that the father is well placed to do that. 

25. I am to look at the maturity and lifestyle and background including any cultural issues and including whether the child is of Aboriginal or Torres Strait Islander heritage.

26. The child's mother is Aboriginal. The Act appropriately directs me to look at that question. The father says this in his affidavit:

    I believe it is important for [X] to see the bush and to be brought up knowing her traditional ways. [X] has a great deal of family that reside in the Cape -

    By that he means Cape York.

    In the past [X] and I have stayed on the outstations of [P] and [S]. [X] and I stayed with the [L] Tribe at a cattle station. Much of the respondent's family reside around the Cape area. I am happy to foster a relationship between [X] and her mother's relatives. I believe that it is important for [X] to be around her Aboriginal heritage and it will be beneficial for her to grow up in that environment.

27. I should just state that Port Stewart is known as an outstation and many of the Coen community members often go there and stay there. 

28. That seems to be an indication from the father that he recognises that it is important and the Family Law Act1975 recognises it is important that he should keep [X] in touch with her Aboriginal heritage.  Once again, to that effect, I note and I asked him whether the Coen Justice Group assisted him, which they did.

29. I am to look at issues of family violence and there is a very serious allegation made against the mother that she held a knife to the father's throat and there is a protection order in place.  I will come back to that issue because it is important in regard to parental responsibility. 

30. I am to look at the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent.  It appears to me that the mother, and it is unfortunate, has failed to fulfil her role as a parent because the Family Law Act1975 is worded so that the child has the benefit of a meaningful relationship with both parents. However if one parent decides not to take part in proceedings or decides not to take part in their child's life there is not much that can be done about that except it places greater strain on the parent who looks after the child, because their days are filled taking care and ensuring that the child is brought up well, nurtured and kept safe from harm.

31. Parental responsibility is always an issue. The father asks for sole parental responsibility. There is a presumption under the Act that there is joint parental responsibility. However the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. In this case I am satisfied that there are reasonable grounds to believe, firstly, on the father's evidence and, secondly, on the existence of the protection order which is exhibit 1 in this proceeding, that the parent of the child, namely the mother, has engaged in family violence. The presumption then does not apply.

32. Where the presumption does not apply I then have to determine whether I will make an order for joint parental responsibility. It would be difficult to make such an order in this case because the mother has not taken part, not only in the Court proceedings, but it seems she is not taking part, at this stage, in the child's life. I am not going to make a joint parental responsibility order. I am going to make an order that the father have sole parental responsibility.

33. If I made a joint parental responsibility order I then must consider equal time but that is just not a question here. In fact, I cannot make any time for the mother to be spending time with the child or rather the child spending time with the mother because she is not taking part in the Court proceedings.

34. On that basis I think it is in the child's best interests that I make the orders as sought by the father. It was raised with me as to whether I would make an order for the father to have a passport issued to the child on his application. I am not going to do that at this stage. He told me that he has no present intention of going anywhere with the child. I think if the issue becomes an issue in the future then it is probably going to be addressed fairly easily.

35. The last thing I am going to say is that this is an important case. The Aboriginal community of Coen, through the Community Justice Group, invited me to go to Coen late last year. The community at Coen wanted me to talk to them and explain the provisions for parenting orders, which can be made under the Family Law Act1975. The Coen Community Justice Group expressed to me in very forthright terms that the community functions well, that they have a number of children through their own arrangements in their own foster care but occasionally they would like orders from a Court to ensure the safety of their children.

36. The Justice Group is very active and has done very marvellous work in assisting the community to tackle head on those issues which cause problems such as alcohol, which has been an issue in this case. The father, in his own evidence, says he has sometimes taken alcohol but he has decided not to take alcohol so that he can raise his daughter properly. From my observations it is the mark of success by the Community Justice Group. 

37. The Justice Group has not dealt with family law issues before but it has always had as its overriding concern the benefit to the community in having the community's children well cared for and safe and they realised that parenting orders are another form of Court protection which they can seek as community members. The Justice group members told me they believed that the whole of the community's future is in their children and they want to ensure that as far as possible they can offer a safe upbringing so the children can reach their full potential.

38. I think, as the Court, I should give due recognition to the group's chair, Mr Peter Peters and to the hard working members of the Coen Community Justice Group, the women and the men who generally represent the community's mothers, fathers, uncles, aunts and relatives for assisting that community to hold the fabric of their community together. To my knowledge this the first set of parenting orders, which have been made with the involvement of the Coen Justice Community Group.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Coates FM

Associate:  Erin Firns

Date:  14 August 2008