SALEM & STRETCH

[2015] FCCA 303

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALEM & STRETCH [2015] FCCA 303

Catchwords:
FAMILY LAW – Children – parenting orders – where Applicant did not attend Court – violence issues – parental responsibility – sole parental responsibility – best interests of the child – one child aged 12 years.

Legislation:

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

Federal Circuit Court Rules 2001, rr.13.03C, 16.05

Applicant: MR SALEM

Respondent: MS STRETCH

File Number: SYC 2167 of 2014

Judgment of: Judge Scarlett

Hearing date: 29 January 2015

Date of Last Submission: 29 January 2015

Delivered at: Sydney

Delivered on: 29 January 2015

REPRESENTATION

Applicant: No appearance

Solicitor for the Respondent: Ms Godden

Solicitors for the Respondent: Resolve Family Law

Independent Children's Lawyer: Ms Moran

Solicitors for the Independent Children's Lawyer: Coast Law

ORDERS

1. The Respondent is given leave to proceed ex parte.

2. The Respondent mother is to have sole parental responsibility for the child [X] born [omitted] 2002.

3. The child [X] born [omitted] 2002 is to live with the mother.

4. The Independent Children’s Lawyer is discharged.

5. No order for costs.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2167 of 2014

MR SALEM

Applicant

And

MS STRETCH

Respondent

REASONS FOR JUDGMENT

Application

1. The proceedings were commenced by an initiating application and supporting documents filed by the Father on 11^th April 2014, and the application was returnable to this Court on 7^th July of that year. 

2. The Father sought interim and final parenting orders. The orders sought that the Father should spend time with his child, [X], in circumstances and at times allocated by the Relationships Australia Children’s Contact Centre at [omitted] in the Central Coast.  As I said, there were affidavits in support.

3. The Mother filed a response supported by an affidavit of her own and an affidavit by her mother.  The parties were ordered to attend a child inclusive child dispute conference, noting the age of this child, who is 12 years.  The Mother had expressed serious concerns about the Father’s behaviour, including allegations of family violence and expressed a fear for her personal safety. 

4. I commented to the Independent Children’s Lawyer this afternoon that the memorandum from the Child Dispute Conference was a very strong memorandum, and as Ms Godden for the Mother pointed out at the conference:

   The father presented as cooperative and articulate but became agitated and aggressive during the final phase of the interview.

5. I also note that the Family Consultant reported that:

   The mother presented as highly anxious and emotionally labile.

6. The report concerns the child, [X], and his interview with the family consultant.  He was described as a cooperative, thoughtful, polite, easy-going child.  He likes school and he is looking forward to attending high school next year.  He described a positive, warm, supportive relationship with his mother.  He indicated that he is aware of the stress she is under and he said he tries to comfort her when she cries.  The family consultant goes on to say:

   [X] appeared agitated, anxious and concerned about the prospect of spending time with his father.  He clearly state a wish not to see Mr Salem.  [X] remembers witnessing domestic violence on Christmas Day 2012.  He appeared extremely distressed and displayed signs of anxiety, such as wringing hands, when recalling the incidents of that day. 

7. That is a most graphic account given by the Family Consultant. The orders that the Mother seeks in her response are that she should have sole parental responsibility for the child [X] and that he should live with her.  She does not seek any parenting orders in favour of the Father. 

8. The Father has not attended Court on this occasion or on the previous occasions.  His solicitor has filed a notice of ceasing to act.  Ms Moran, the Independent Children’s Lawyer, submitted there is nothing to show one way or other whether the Father was aware of the contents of the Child Dispute Conference Memorandum.

Applications for parenting orders 

1. In dealing with this matter, I must consider the matters that the Court always has to consider under section 60B, section 60CA, section 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth), all of which are contained in Part VII of the Act.

Parental Responsibility

1. Dealing with the question of parental responsibility, the mother seeks sole parental responsibility. The allegations of family violence are of themselves sufficient to cause the Court concern about the applicability of the doctrine of equal shared parental responsibility as being in the child’s best interests.  The reactions of the child when interviewed by the Family Consultant, as set out in the Child Dispute Conference Memorandum, strongly supports the view that it would not be in his best interests for the Father and the Mother to have equal shared parental responsibility.

Consideration 

1. I have heard evidence from the Mother and her mother, and I note that the child has not spent time with the Father since Christmas Day 2012, which was marred by an incident of family violence.  The Court has a duty under subsection 60CC(2) to protect children from abuse, from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  That is to be given greater weight than the other primary consideration of the benefit to the child of a meaningful relationship with each of the child’s parents.

2. Under section 60CC(3) paragraph (a), the Court must consider the views of the child and assign what weight to them are considered appropriate. I have clear and independent evidence of the views of the child. He is 12 years of age. I propose to give his views some weight.

3. This is a matter where I am strongly of a view that the evidence points to the Mother having sole parental responsibility for the child, [X], and that he should live with her.  I do not propose to make any parenting orders in favour of the father. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  29 January 2015