SALAMANCA and SHAW

[2018] FCWA 218

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SALAMANCA and SHAW [2018] FCWA 218

CORAM: DUNCANSON J

HEARD: 22 September 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 1899 of 2010

BETWEEN: MR SALAMANCA

Applicant

AND

MS SHAW

Respondent

Catchwords:

CHILDREN - Undefended proceedings - Where it is in the best interests of the children to live with the mother and she have sole parental responsibility for them

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	Ms Woodcock

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Gary Rodgers

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern the children [Child A] born [in] 2006, [Child B] and [Child C], twins born [in] 2009.

2The mother seeks final parenting orders in relation to the children. The father has not recently participated in the proceedings.

3On 3 September 2018, I ordered that the mother file and serve a minute of final orders sought and a short affidavit in relation to the welfare of the children. I further ordered that in the event that the father opposes the orders sought by the mother, he shall file and serve a minute of final orders sought and an affidavit of evidence on which he relies.

4The proceedings were adjourned to 22 October 2018. It was further ordered that in the event that the father fails to file documents or attend the adjourned hearing, subject to any contrary direction of the trial judge the mother have leave to proceed on an undefended basis.

5The orders sought by the mother are contained in a minute of proposed final orders dated 27 September 2018. The mother seeks orders that the children live with her and that she have sole parental responsibility for them.

6The father has not filed any documents and has not attended today.

7The matter proceeds on an undefended basis.

8In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration. I have considered the primary and additional considerations insofar as they are relevant. The children have a meaningful relationship with the mother and it is to their benefit that it continues.

9There is not a need to protect the children from harm in the care of the mother. The children were exposed to family violence during the parties' marriage. The father abused drugs and alcohol at that time. Child A is 12 years of age and Child B and Child C are nine years of age. They have a close and loving relationship with the mother, her husband, their step-brothers and their half-brother. The children do not have a relationship with the father. They have not seen him or heard from him since 2012. The children have a good relationship with extended family including the father's family.

10The father has not sought to spend time or communicate with the children. He has not maintained them. The father spent an extensive period of time incarcerated. He was released earlier this year, but the mother understands there is now a warrant for his arrest.

11The mother is capable of providing for the children on all levels and has demonstrated a responsible attitude to the children and to the responsibilities of parenthood. The father has not done so.

12The children are happy and settled in the care of the mother. The mother describes them as well‑adjusted, polite girls who are popular with their peers and teachers.

13There has been family violence between the parties to which the children were exposed. It would be preferable to conclude these proceedings.

14In all the circumstances, I am satisfied that I should make the orders sought by the mother. There has been family violence between the parties and the presumption that it is in the children's best interests that their parents have equal shared parental responsibility for them does not apply. I shall order that the mother have sole parental responsibility for the children. The children will continue to live with the mother. The mother does not seek orders that the children spend time with the father. Any time they do spend with him will be on such terms and conditions as the mother thinks fit. I will make the orders sought by the mother that the father be at liberty to send letters and cards to the children by registered mail addressed to the mother once a month.

THE ORDERS

1All previous parenting orders be discharged.

2The mother, [Ms Shaw] have sole parental responsibility for the children [Child A] born [in] 2006, [Child B] and [Child C] both born [in] 2009.

3The children live with the mother.

4The father, [Mr Salamanca] be at liberty to send letters and cards to the children by registered mail addressed to the mother on not more than one occasion each month.

5The proceedings otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

6 NOVEMBER 2018