SALIBA & SALIBA
[2018] FamCA 210
•5 April 2018
FAMILY COURT OF AUSTRALIA
| SALIBA & SALIBA | [2018] FamCA 210 |
| FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from the proceedings – Where the father has perpetrated family violence against the mother and children – Where there are concerns about the father’s mental health and substance abuse – Where the children are negative or indifferent towards the father – Where there are serious concerns about the father’s parenting capacity – Where the father poses an unacceptable risk of harm to the children – Orders made as sought by the mother. FAMILY LAW – PRACTICE AND PROCEDURE – Undefended Hearing – Where the father has disengaged from the proceedings – Where the father has been given appropriate opportunity to participate in the proceedings – Where it is appropriate for the matter to proceed on an undefended basis. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65Y, 68B, 68C, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| G & C [2006] FamCA 994 | ||
| APPLICANT: | Mr Saliba | |
| RESPONDENT: | Ms Saliba |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith Family Law |
| FILE NUMBER: | MLC | 11547 | of | 2014 |
| DATE DELIVERED: | 5 April 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 16 November 2017 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | CBD Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith Family Law |
Orders
That the children B born … 2009 and C born … 2011 (“the children”) live with the mother.
That the mother have sole parental responsibility for all decisions relating to the children.
That the children spend no time with the father, other than such specified times as agreed with the mother in writing.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from approaching, entering or remaining within 100 meters of:
(a) the place of residence of the mother and the children;
(b) the children’s or either child’s school and any before/after school care centre attended by the children; and
(c) the venue of any extra-curricular activity and/or the place of therapeutic counselling that the mother or the children are involved in;
other than in the course of spending time with the children pursuant to the mother’s written agreement.
In the event the father does not comply with Order (4) and a police officer believes, on reasonable grounds, that the injunction has been breached then such police officer is authorised to arrest the father without warrant pursuant to section 68C of the Act.
That the children’s names be removed from the Family Law Watchlist (previously known as the Airport Watchlist).
That the mother may apply for an Australian travel document for the children or either of them without first obtaining the consent of the children’s father.
Pursuant to section 65Y of the Act the mother is authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
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 Saliba & Saliba 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: MLC 11547 of 2014
| Mr Saliba |
Applicant
And
| Ms Saliba |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in relation to two young boys aged eight and seven.
The father began these proceedings in May 2015 in a Local Court. The proceedings were subsequently transferred to the Federal Circuit Court (“FCC”) and then ultimately to this Court, forming part of the Magellan Program[1].
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In May 2016 orders were made for the children to live with the mother and spend supervised time with the father. This time did not occur as the contact centre was not prepared to offer its services unless that the father completed a men’s behaviour change program.
Following assessment by a Family Consultant in June 2017 during which significant concerns were raised about the father’s violence, mental health and drug and alcohol use the father disengaged from these proceedings.
The proceedings were ultimately heard on 16 November 2017 in the absence of the father on an undefended basis.
The mother seeks orders that she have sole parental responsibility for the children, that they live with her and spend no time with the father and that he be restrained from contact with them. The father’s most recent application sought that he and the mother equally share parental responsibility for the children and that they live with him and spend time with the mother as deemed appropriate by the court. It can be taken from the father’s disengagement in the proceedings that he no longer seeks any orders in relation to the children.
The Independent Children’s Lawyer (“ICL”) supports the mother’s proposal. The question for me to determine is whether the orders proposed by the mother are in the best interests of the children
Background
The father, who is 37, is of Country D heritage and was born in Australia. He and the mother, who is 28 and was born in Country D in the Middle East, are cousins. They met in Country D in 2005 when the father was on holidays. Although the mother was aged 16 (and the father aged 24) at the time the parties became engaged approximately one month after meeting.
The parties married in Country D in 2007 and the mother moved to Australia in March 2008 to live with the father in the paternal grandparents’ home.
The mother alleges that the father has been violent and threatening to her throughout their entire relationship and makes specific allegations about his assaults against her when she was pregnant with the parties’ first child in 2009.
The parties’ first son was born in 2009.
The parties moved to a home that they had purchased together in 2010.
The mother alleges that the father continued to be violent towards her including on an occasion in June 2011 when she was pregnant with the parties’ second child.
The second child, also a boy, was born in 2011.
From June to September 2012 the mother travelled with the children to Country D while the father remained in Australia.
Following the mother’s return to Australia she observed the father sniffing a white powder and spoke to the paternal grandparents about the incident. The mother also alleges from around this time that the father was often heavily intoxicated and regularly forced the mother to have sex with him when intoxicated.
In October 2013 the younger child who was two years old was found wandering in the street at a time when he was in the care of the mother.
In April 2014 the older child suffered a severe asthma attack and was hospitalised, spending some time in intensive care. The mother alleges that the father struck the child when at the hospital and threatened to kill her when she sought assistance from a social worker.
The mother alleges that there was a further argument in December 2014 when the father assaulted her. She fled from the house and travelled to Melbourne with the children where she stayed with a family member. She also contacted her family in Country D and informed them of what was happening in her marriage. The father and a paternal aunt came to the mother’s relatives’ home and threatened them, resulting in police being called.
The father filed an Initiating Application in the FCC in Melbourne seeking the return of the children in December 2014.
Other extended family members became involved in negotiating a reconciliation between the parents.
The parties reconciled and moved back to Sydney as a family in January 2015. The mother says that within two weeks the father began verbally abusing and threatening her again. The father also continued to misuse drugs and alcohol and in February 2015 assaulted the mother when he returned to the family home at around 4.00 a.m.
In April 2015 the mother left the family home with the children and sought assistance from the paternal grandparents.
On 1 May 2015 the mother told the father that she wanted a divorce and he threatened to shoot her if she entertained such a thought. A few days later the mother alleges that the father hit the younger child when out to dinner, drove erratically to the family home and dropped the mother and children home saying that he was going to the casino. When the father did not return home the mother telephoned the paternal family who lodged a missing person’s report.
Family members located the father two nights later in a car and returned him home. The mother alleges that the father continued to behave in an erratic and threatening manner. On one occasion the father masturbated and asked the mother to engage in sexual activity in the presence of the children and on two further occasions in May 2015 he arrived home in the early hours of the morning and threatened the mother.
On 18 May 2015 the father’s application to the FCC in Melbourne was dismissed.
The mother left the home with the children for the final time on 19 May 2015 with the assistance of police and a domestic violence service and moved to a women’s refuge. The following day a provisional Apprehended Domestic Violence Order (“ADVO”) was made for her protection. This was subsequently made as an interim order in a Local Court approximately one week later.
On 30 May 2015 the father commenced family law proceedings in a Local Court in New South Wales. The proceedings were then transferred to the Federal Circuit Court and a location order in relation to the mother was made.
In August 2015 the father came to the attention of police as he appeared to be under the influence of the substance known as “ice” and was expressing suicidal ideation.
In October 2015 the parties participated in a Child Dispute Conference. As a result of the Family Consultant’s observations the matter was subsequently transferred to this Court and placed in the Magellan Program.
In a report dated 31 March 2016 an officer of the Department of Family and Community Services (“the Department”) expressed that the Department held significant concerns about the father’s alleged alcohol and drug use, that he had driven the children under the influence of an illicit substance, his reported abuse of the mother and the children including sexual, physical and verbal violence and threats towards the mother in the presence of the children. In the same report it was recorded that concerns were raised in relation to the mother’s mental health and ability to meet the needs of the children. It was noted however, that the information did not suggest that the children were at risk of harm with the mother as she had left the relationship with the father and engaged with appropriate services to protect herself and the children.
When first listed before this court in May 2016 the father was ordered to undertake urine drug screening and a liver function blood test with respect to alcohol misuse.
Following an interim hearing later that month orders were made that the children live with their mother and spend supervised time with their father at a nominated children’s contact centre and that the father’s time be suspended in the event that the urine and drug screen or liver function blood test produced positive or abnormal test results. The father was also required to attend drug and alcohol counselling and follow all treatment directions and each parent was to enrol in a parenting skills course.
In August 2016 the children’s contact centre declined to supervise the father’s time with the children on the basis that he posed an unacceptable risk to the safety of the mother and children. It was suggested to the father that if he were to complete a men’s behaviour change program the centre may reassess the application for supervision services.
In March 2017 there was a final hearing in a Local Court in relation to an application for variation of the ADVO made against the father for the protection of the mother. The ADVO was varied by including an order that the father surrender all firearms and extending the orders for a further 12 months from this date.
In June 2017 a Family Consultant assessed the parents, members of the paternal family and children for the purposes of a Family Report. The Family Consultant recommended that the mother hold sole parental responsibility for the children, that the children continue to live with her and that the children’s time with the father depend upon the court’s findings with respect to the risk of harm posed by the father.
Following release of the Family Report there were further court events on 15 August 2017 and 17 October 2017 at which the father did not appear in person or through a legal representative.
There was again no appearance by the father when the matter was before the court on 16 November 2017 and the mother and the ICL sought that the matter proceed on an undefended basis.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[2], and to the principles for the conduct of child-related proceedings[3], in my view, it is in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[2] [2014] FamCAFC 14
[3] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Following the hearing proceeding on an undefended basis on 16 November 2017, judgment was reserved.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(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; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary matters and additional matters to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6].
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
This matter has not been interpreted to mean that there is a presumption that children do receive a benefit from having a meaningful relationship with both parents. The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The orders proposed by the mother do not provide for the children to spend any time with their father except with the agreement of the mother. Although it is possible that the mother may at some time in the future agree for the children to spend time with the father this is unlikely given the history of the parental relationship to date. However, the orders sought by the mother do allow for the possibility of the children having some relationship with the father if the mother considers that this could be done with safety.
The recommendations made by the Family Consultant in her report of June 2017 with respect to the father’s time with the children depend upon the court’s findings in relation to the risk of harm posed by the father. For reasons I will come to when considering the need to protect the children from physical or psychological harm and the issue of family violence I am of the view that the father does pose an unacceptable risk of harm to the children. In the event of this finding the Family Consultant recommends that orders be made that do not provide for the children to spend time or communicate with the father.
Having regard to all of the matters in relation to the best interests of children required to be considered I am of the view that this recommendation is appropriate and that it is not in the children’s best interests to have a relationship with their father.
Although the orders proposed by the mother do provide that the children may spend time with the father with the agreement of the mother, as opposed to being totally silent as to this issue, I am satisfied that the mother would only give consent to this occurring if she was of the view that the children would receive some benefit from this contact. She does not seek any other orders with respect to the father’s time and I am satisfied that there will be no positive benefit to the children by the court attempting to craft any other orders to foster a relationship with their father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
There is a great need in these parenting proceedings to protect the children from the physical and psychological harm from being subjected to abuse and neglect and exposure to family violence.
I am satisfied that the mother has been the victim of family violence perpetrated by the father throughout the relationship. The detailed allegations in this regard are set out in the mother’s affidavit which was unchallenged considering that the father did not participate in the final hearing. Although the father denied being the perpetrator of family violence to the Family Consultant when assessed for the purposes of the Family Report he adduces no evidence in these proceedings to support that contention.
There is also support for the mother’s version of events in various documents produced under subpoena and tendered in the proceedings. Although the mother did not report her allegations about the father’s conduct to police or any other authority prior to separation in May 2015, she gives a detailed version of a number of the specific instances of violence which are corroborated by documents from various sources.
For example, according to the mother’s affidavit, in the course of a violent incident in 2009 the father assaulted her in their home in the presence of paternal family members. The mother says that the following occurred “[The father] proceeded to punch me, but when he punched I had moved out the way and [the father]’s hand went through the glass window. [The father]’s father and sister took him to [E] Hospital. I understand that [the father] severed a nerve in his hand. After that the family were screaming at me.” Records produced by E Hospital indicate that the father underwent surgery in November 2009 to repair a tendon on his right forearm following a laceration sustained from a glass window. He reported that this had been an injury sustained following a slip.
The mother also alleges that on one occasion when the younger child was hospitalised with asthma the father was very aggressive with the child during that admission and pushed her and slapped the child in the face when attempting to administer medication. She says that a doctor who became concerned about the father’s conduct arranged for a social worker to interview her. She said that the social worker asked her to have a private conversation and that the father was in the room and said to her “I’m gonna kill you if you open up your mouth and say one word”.
The mother deposes that when the social worker asked her questions about the father she did not tell the truth as she was afraid of repercussions from him and reported that he was a good father who treated the family well. According to the records of the F Hospital produced on subpoenaed the father was reported as being very rough with the child and according to the social worker’s notes the mother reported being very isolated and unable to leave the house as the father does not let her but denied domestic violence and was very clear that she was safe to go home and had no concerns regarding the children’s safety.
The mother’s complaints about the father’s violence and controlling behaviour towards her and abusive conduct towards the children in her police statements, affidavit and in interview with the Family Consultant are detailed and consistent and provide context which are all matters, in my view, that suggest they are reliable.
I am of the view that the decision made by the children’s contact service declining the referral for supervised contact in August 2016 is also relevant in assessing the likelihood of the mother’s account with respect to the father. In a letter to the mother dated 22 August 2016 the coordinator of the service states that the service believed that facilitating visits would pose an unacceptable risk to the safety of the mother and the children and noted that there was a history of serious domestic violence perpetrated by the father against her and the children “with evidence-based indicators of increased lethality” and that the father also demonstrated “a high level of blame towards the mother and no acknowledgement of abusive behaviours or reform”.
There is also a history of ADVOs having been made after separation and having been varied by adding additional orders for the mother’s protection. The most recent order was extended until 3 March 2018. The making of these additional orders by a Local Court suggests that there were ongoing concerns about the father’s conduct that required additional protection, consistent with the mother’s account.
For all of the foregoing reasons I am satisfied that the father poses an unacceptable risk of harm to the children.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
When interviewed by the Family Consultant the oldest child required significant reassurance that the father had left the building before he would separate from his mother. He reported that the father had hit him and his brother with a belt and that he did not remember any nice things about his father. The oldest child immediately became distressed upon being informed he would be spending time with his father.
The younger child did not identify his father as part of his family when interviewed by the Family Consultant. He, like his brother, reported that his father hit him with a belt. When asked by the Consultant how he would feel about seeing his father soon he shrugged his shoulders.
Both children spoke positively about their mother.
While the Family Consultant acknowledged the possibility that the children’s views had been influenced by their mother she stated that “[h]ow ever the children have come to arrive at their views, their current perception of their father, is likely to impede their ability to build and maintain a meaningful relationship with him”.
Given the children’s ages and the need to protect them from the father, their views will be given little weight in any event.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
The children have well-established and positive relationships with the mother. There are no concerns about her capacity to care for the children or provide for their needs
In the Family Consultant’s opinion the oldest child has a negative relationship with the father and the younger child is relatively indifferent to the father and the extended paternal family.
During the observation session between the children, the father, the paternal aunt and the paternal grandparents the children were reluctant to receive affection from the paternal family.
The oldest child appeared anxious and uncomfortable throughout the observation while the younger child was uncertain at times but willing to interact with the paternal family to a greater extent than his brother.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
The Family Consultant made the following comments about the father:
In interview, [the father’s] responses were often evasive, and he tended to minimise his part in any difficulty in the family. When he was asked about the various allegations made by [the mother], he claimed that all allegations made by her are fabricated and he tended to reply with a counter allegation against [the mother]. [The father] also presented as having little capacity to consider the children’s needs. He was dismissive of any possibly (sic) difficulty identified in his parenting capacity and was more focused on the perceived entitlement he is owed as a parent. [The father] maintained that, he has a positive relationship with the children, and said that they would enjoy spending time with him. This did not appear consistent with the children’s interviews and the observation of the children’s time with him.
[The father] appeared to have difficulty engaging the children in their observation session, and for the most part he remained sitting on the couch watching the children. [The father] asked the children for reassurance of their love for him. [The father] only interacted with the children upon invitation, encouragement and guidance from [the paternal aunt], who appeared to understand and be responsive to the children’s needs. [The paternal aunt] was child focused, and attempted to engage in appropriate play and conversation with [the children] to reduce their anxiety and to provide a positive time for the children during this brief time with them.
On the basis of the information available to this assessment, [the father] did not clearly demonstrate the capacity to engage with the children in a sustained manner. It is possible that this represents a limited ability on his part to meet and manage the children’s engagement with him and their subsequent physical and emotional needs associated with this. It is possible that, given the length of time in which [the father] has not seen the children, he may have felt overwhelmed or unsure of how to interact with them. It is also possible that, his difficulties may be related to him potentially having a limited role in the prior parenting of the children, and it may be indicative of the nature of his relationship with the children when living with them. Concerns are therefore raised regarding [the father’s] ability to appropriately engage [the children], and to also manage any level of distress experienced by either or both children if they were to spend time with him …
The father’s violence towards the mother and the children, the allegations made by the mother regarding the father’s erratic behaviour and substance abuse and the Family Consultant’s opinion of the father’s parenting capacity all raise serious questions about the father’s capacity to care for the children were he to spend time with them. The risks posed by the father to the children are substantially determinative of this application.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In perpetrating family violence against the mother and the children the father has displayed a poor attitude to the responsibilities of parenthood. The father does not currently provide any support in maintaining the children, the mother alone has at all times provided for the children since separation.
The father has also failed to take opportunities to spend time with and participate in decision making for the children. For example, despite it being a condition of him spending time with the children at a contact centre, the father was dismissive of the suggestion that he attend a men’s behaviour change program and told the Family Consultant that he did not intend to enrol in such a program. The father’s refusal to consider this suggestion is the reason the children have not spent any time with him at the contact centre since interim orders were made in May 2016 and does not reflect positively on his attitude towards patenting and spending time with the children.
In disengaging from these proceedings the father can be taken to be forfeiting any opportunities for him to participate in decision making or spend time with the children.
Likely effect of change in the children’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
If orders are made as sought by the mother there will be no change in the children’s current circumstances. Accordingly, there is no practical difficulty or expense associated with the implementation of those orders.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Both parents are of Country D heritage. The children have contact with their maternal family, some of whom reside in Country D, and it is anticipated that the mother will facilitate the children experiencing Country D culture in the future.
Family violence including any family violence order relating to the children or a member of the children’s family
The father’s violence towards the mother and the children, including the ADVOs taken out against him for the protection of the mother, has been discussed earlier in these Reasons.
Both children reported to the Family Consultant that they had been exposed to family violence, including seeing the father push their mother into a wall and the father hitting them with a belt. The Family Consultant opined that “[if] the children have experienced [the father] as abusive, even if this was not directed at them, they may have found this traumatic and experienced [the father] as an unpredictable and unsafe carer.”
As previously stated, the risks posed by the father to the children on the basis of family violence
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that 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. 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 (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
Given the father has disengaged from these proceedings, the only proposal before the court is for the mother to have sole parental responsibility for the children. In circumstances as outlined earlier in these Reasons and where the ICL is supportive of such an order being made I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Conclusion
Having regard to all of the factors in relation to the best interests of the children, in particular that the father poses an unacceptable risk of harm to the children in regards to the family violence perpetrated by him against the mother and the children, I make orders as sought by the mother.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 April 2018.
Legal Associate:
Date: 5 April 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Standing