SIMONS & HEADON
[2012] FamCA 192
•2 April 2012
FAMILY COURT OF AUSTRALIA
| SIMONS & HEADON | [2012] FamCA 192 |
| FAMILY LAW - CHILDREN - With whom a child lives - Child to live with the father and spend time with the mother as agreed by the mother and father FAMILY LAW - CHILDREN - Parental responsibility - Father to have sole parental responsibility for the child |
| Family Law Act 1975 (Cth) |
| Goode and Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Simons |
| RESPONDENT: | Mr Headon |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
| FILE NUMBER: | NCC | 1702 | of | 2007 |
| DATE DELIVERED: | 2 April 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 April 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | Wiggins Cheffings Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Commission of New South Wales |
Orders made 20 april 2009
That all prior parenting and restraining orders are discharged.
That the child S born … February 2005 (“the child”) live with the Respondent Father.
That the Respondent Father have sole parental responsibility for the child.
That the Applicant Mother spend time with the child as agreed by both the Applicant Mother and Respondent Father.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 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.
That all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons & Headon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1702 of 2007
| Ms Simons |
Applicant
And
| Mr Headon |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to S born in February 2005 (“the child”). The applicant in these proceedings is the child’s mother Ms Simons (“the mother”). The respondent is the child’s father Mr Headon (“the father”).
The parties separated in mid-2005 when the child was a few months old. The parties reconciled for a brief period at the beginning of 2007. Both parties sought orders for the child to live with them. The mother raised allegations of family violence and abusive behaviour by the father, as well as his alcohol abuse. The father raised issues of drug use by the mother, and questioned her mental health following an alleged suicide attempt on 1 July 2007.
The mother failed to attend an appointment with the single expert witness for the purposes of interview for the Expert’s Report. She also failed to attend court on numerous occasions (despite her solicitors being present on each occasion and she being aware the matter was listed).
On 12 March 2009 the mother’s solicitors were granted leave to withdraw from the proceedings upon notifying her in writing of the orders made on this date and serving upon her a Notice of Ceasing to Act. Orders were also made which suspended her time with the child pending further order and her application filed 28 May 2007 was struck out.
The matter was listed for an undefended hearing before me on 20 April 2009. There was no appearance by or on behalf of the applicant mother. Copies of orders which listed the matter were sent to her address and not returned. I am satisfied that the mother was aware that the matter was listed for final hearing but has chosen not to participate. Final orders were made as set out above for which these are my reasons.
Background Facts
The father was born in 1975.
The mother was born in 1980.
In early 1994 the mother commenced living with Mr C.
On 2 September 1995 Y, the mother’s and Mr C’s son was born.
In November 1995 the mother and Mr C separated.
The mother and father commenced living together in April 1997.
In February 2005 the child S was born.
The parties separated on 15 June 2005.
When the parties separated the mother moved out of the parties’ rented home and took the child and Y with her. The father says that he regularly spent time with the child, including every weekend. He says he would collect the child from the mother’s residence at about 1 pm on Friday afternoon and return him on Sunday between 8.30 and 9.30 pm. During the week he visited the child every day. He would go to the mother’s home after work at approximately 4 pm and leave between 8 pm and 8.30 pm.
In April 2006 the father moved in with the paternal grandparents.
In early January 2007 the mother told the father that two men broke into her home, raped her and threatened to kill her and her two children if she reported the rape to police. Around mid-January 2007 the parties reconciled for about two months and he stayed at the mother’s home every night. During those months, the father says the mother’s friend and her boyfriend would visit every Friday evening and, along with her, they would smoke ice, while the father and the child were in another room.
In March 2007 the father ended the relationship with the mother. He says that the mother subsequently reduced his contact with the child, and on many occasions his requests to spend time with the child were denied. Around the time the parties separated the father says he found a note on the mother’s kitchen table in her handwriting saying she was going to kill herself. A copy of this letter is annexed to the father’s affidavit filed 5 July 2007.
On 15 March 2007 the father took the child. He says the mother had used ice. The father says the mother sent him a text message asking if he wanted to see the child and that she would be at Mr D’s home in ten minutes. The father agreed, and when he arrived, he heard the mother say to Mr D ‘can you go down and get me two grams of ice’. The mother and Mr D then left, leaving Y and the child behind. The father left with the child. On 16 March 2007 he reported this incident to the police. That day the mother came to the paternal grandmother’s home where she grabbed the child, raced to the car and raced away.
On 28 May 2007 the mother filed an Application in the Federal Magistrates Court seeking, in summary, the following orders as both interim and final orders:
1. That the child lives with the mother.
2. That the mother and father have sole parental responsibility for the child’s day to day care, welfare and development when the child is with them respectively.
3. The parents shall confer with each other as necessary and make decisions on major health and welfare issues concerning the child on a joint consultative basis.
4. The child spend time with the father as agreed by the parties and failing agreement as follows:
a)Each alternate weekend from 5 pm Friday until 5 pm Sunday.
b)Half of all school holidays.
c)On special days.
On 14 June 2007 an interim Apprehended Violence Order was made for the mother’s protection from the father at the Local Court. The mother alleged that during the relationship the father was often violent after consuming alcohol. On one occasion he allegedly pushed her to the ground and jumped on top of her while he held her arms so she was unable to get up.
On 20 June 2007 the father filed a Response to an Application for Final Orders seeking, in summary, the following final orders:
1. That the child lives with the mother.
2. That the child spend time with the father as agreed by the parties and failing agreement:
a)Each alternate weekend from 5 pm Friday until 8.30 pm Sunday extending to 8.30 pm Monday if Monday is a public holiday, commencing the first weekend after the date of this order.
b)Every alternate Tuesday and Thursday from 4pm until 8.30pm commencing the second week after the date of this order.
c)For half of all school holidays.
d)On special days.
3. That the child’s full name [… … Headon] be noted on all identifications, forms and other records.
4. That the mother be restrained from moving the child further than a 50 km radius outside of the [Town N] Local Government Area.
5. Agrees with the mothers final orders sought in relation to parental responsibility, namely:
a)That the mother and father have sole parental responsibility for the child’s day to day care, welfare and development when the child is with them respectively.
b)The parents shall confer with each other as necessary and make decisions on major health and welfare issues concerning the child on a joint consultative basis.
In June 2007 Y was taken from the mother by Ms L and Mr M, who are his paternal grandparents. Y’s paternal grandmother collected him from school having received a call from the school advising that Y had chicken pox. Y did not want to go back into the mother’s care and he remained with his grandparents. The mother says she has not seen Y since. Y’s father and his paternal grandmother say that since June 2007 the mother has not contacted them to arrange to see Y or to ask him to go back to live with her. Y’s father lives with Y’s paternal grandparents and uncle in a five bedroom home at Town L.
On 1 July 2007 according to the father, the father received a text message from the mother asking him to collect possessions and to have dinner with the child. The father arrived at her home around 4.15pm. The child was in the driveway and the front door of the house was open. The father picked up the child and called out to the mother but there was no response. The father walked into her bedroom and found the mother hanging from a power extension cord around her neck. A washing basked had been kicked away from under her feet. The father lifted the mother and removed the cord from around her neck and laid her on the floor. The father then went outside to get a mobile phone from his friend Ms A who was waiting outside. While the father was on the telephone to emergency services, the mother picked up the child, attacked Ms A then got in her car and drove off with the child. The father went to the Town N Police Station and reported this incident. He also reported it to the Department of Community Services (DOCS). DOCS sent out a response team to look for the mother.
The father returned home from the police around 5.15 pm. About the same time he received a text message from the mother informing him that she was out of petrol, was vomiting blood and needed an ambulance. The father and his sister went looking for the mother.
Around 9.30 pm that evening the father and his sister went to the Town N Police Station where they were advised that the mother had been located by police and taken to Town N Hospital Psychiatric Unit. The child had been put in foster care for the night. At 11.30 pm a DOCS officer telephoned the father to advise that the child was in foster care and that he should ring her. The father contacted DOCS and collected the child later that afternoon.
According to DOCS records the mother admitted attempting suicide. The mother was detained at Town N Hospital until 5 July 2007. The Discharge Referral notes state that ‘she was brought in by Police after alleged attempted hanging. Nil ligature marks found on neck.’
On 5 July 2007 the father filed an Amended Response seeking, in summary, the following orders as both interim and final orders:
1. That the child lives with the father.
2. That the father have sole parental responsibility for the child’s day to day care welfare and development and for all care, medical and other costs incurred for his benefit.
3. That the mother have supervised time with the child on two weekdays each week, at times nominated and supervised by [B Contact Centre].
4. Each party is to arrange with the said contact centre an assessment for suitability for supervision and attend such assessment.
5. Each of the parents must pay one half of the supervision fees.
On 6 July 2007 the matter came before a federal magistrate and the following interim orders were made by consent, in summary:
1. That the child lives with the father.
2. That the father have sole parental responsibility for the child’s day to day care, welfare and development and for all care, medical and other costs incurred for his benefit.
3. That the mother spend supervised time with the child every Wednesday from 12 noon to 2 pm at the paternal grandmother’s home [address deleted], such time to be supervised by the paternal grandmother [name deleted], and that whilst the mother is spending time with the child she does so without bringing any other person with her with the exception of ....the maternal grandmother.
4. That the paternal grandmother has the discretion to suspend the time that the mother spends with the child if she believes that the mother is behaving in such a way that may cause physical or psychological harm to the child.
On 2 and 3 August 2007 the matter came for an interim hearing before a federal magistrate in relation to which judgment was delivered on 9 August 2007. In summary, the following orders were made:
1. That until further order the child lives with the father, on the condition that the father continues to reside at the home of his parents.
2. That the father enable the mother to spend time with the child on Tuesday and Friday of each week commencing on 10 August 2007 between 9 am and 5 pm, such time to commence and conclude at the [Town N] Family Resource Centre.
3. That all competing applications be adjourned for consideration of issues relating to a Family Report and the independent representation of the child before Coakes FM on 20 August 2007.
On 20 August 2007 Coakes FM ordered that the matter be transferred to the Family Court, and that the child be separately represented.
On 13 February 2008 the mother commenced proceedings at the Federal Magistrates Court in relation to Y, seeking a recovery order for the return of Y to her care and orders for Y to live with her.
On 28 March 2008 Y’s paternal grandmother filed a Response seeking orders for Y to live with her and spend time with the mother supervised by the maternal grandmother at a location, time and place as agreed or ordered by the Court.
On 14 April 2008 Y’s father filed a Response seeking orders for Y to live with him, spend time with the paternal grandmother by agreement, and spend time with the mother by agreement. He also sought an order for the child to be known and identified by the name [Y’s full name with the same surname as Mr C].
On 29 May 2008 interim orders were made for the mother to spend time with Y at the paternal grandmother’s home every Sunday commencing 8 June 2008 from 10 am until 11 am for four consecutive Sundays and thereafter every Sunday from 10 am to 12 noon, such time to be spent in the presence of the father and/or the paternal grandmother.
Proceedings in relation to Y were transferred to the Family Court on 19 September 2008.
On 7 November 2008 I made orders by consent for Y to live with his paternal grandmother and for the grandmother to have sole parental responsibility for Y subject to an obligation to confer with the parents in relation to any decision concerning Y’s education, medical or other related issues and religious or spiritual instruction.
On 10 November 2008 the father filed an Application in a Case seeking, in summary, the following interim orders:
1. That the orders made by Lindsay FM on 9 August 2007 which provide for the mother to spend time with the child be suspended until further order and that instead the mother spend supervised time with the child at [B Contact Centre], two weekdays each week at times nominated by the said contact centre.
2. That the mother pays fees for supervision.
3. Until the mother commences spending time with the child at the contact centre she shall spend time with the child at the paternal grandmother’s home between 10 am and 2 pm each Tuesday and Friday commencing 14 November 2008, such time to be supervised by the paternal grandmother.
The father’s Application in a Case was listed for hearing before me on 11 November 2008. The father was concerned that the mother had no fixed address and he had no idea where she took the child while spending time with him. The father was also concerned about the mother’s drug use and fears for the child’s emotional and physical safety.
On 11 November 2008 the mother filed a Response to an Application in a Case seeking that orders made on 9 August 2007 be confirmed, except that changeover take place at Hungry Jacks Restaurant at Town N instead of the Town N Family Resource Centre. In the alternative, if the court deems that her time with the child needs to be supervised , the mother proposes the following:
1. That the mother spend time with the child:
a)Each Tuesday from 9 am to 5 pm, such time to be spent in the presence of the maternal grandmother or the maternal grandfather, except during travel to and from the maternal grandmother or maternal grandfather.
b)Each Friday from 10 am and 2 pm in the presence of the paternal grandmother, and unless otherwise agreed such time is to be spent at a place other than the paternal grandmother’s home.
2. That changeover take place at Hungry Jacks Restaurant at Town N.
On 12 November 2008 I made the following orders:
1. That Order 2 dated 9 August 2007 [which provides for the child to spend time with the mother] made in the Federal Magistrates Court is suspended.
2. That the Mother spend time with the child [S] as follows:
(a)each Tuesday commencing at 9.00 am and finishing at 5.00 pm upon condition that the child’s maternal grandmother is substantially present and collects and returns the child.
(b)each Friday commencing at 10.00 am and finishing at 2.00 pm in the presence of the Paternal Grandmother.
3. For the purpose of 2(a) the Maternal Grandmother shall collect the child from the Father, or his nominee, at Hungry Jacks Restaurant at [Town N] and return the child to the same place.
4. For the purpose of Order 2(b) the Mother’s time with the child is to be spent at the Paternal Grandmother’s home or such other place as the Paternal Grandmother and Mother agree.
5. To the extent practicable, the Father shall request that the Paternal Grandmother, Mother and child are the only persons present whilst the Mother is spending time with the child pursuant to Order 2(b).
6. The Father is restrained from being at the Paternal Grandmother’s home whilst the Mother is spending time with the child. This is an order for the Mother’s personal protection.
7. In the event the Maternal Grandmother is unable to be substantially present as required by Order 2(a), including personally present at changeover, on those occasions the conditions upon which the Mother spends time with the child shall be in accordance with Order 2(b).
8. That Order 1 dated 9 August 2007 is varied so as to attach to it a condition that the Father commences drug and alcohol counselling forthwith and if he cannot immediately start then weekly attendance at Alcoholics Anonymous.
9. That Order 2 above is conditional upon the Mother immediately commencing drug and alcohol counselling and if she cannot immediately start then attending weekly Narcotics Anonymous meetings.
10. In the event the parties, so as to comply with above orders, attend either Alcoholics Anonymous or Narcotics Anonymous they shall each maintain a written record of their attendance and at each meeting obtain the convenors written acknowledgement that the party was present.
11. Pursuant to Rule 15.5 Family Law Rules, [Dr W] Psychiatrist, undertake a psychiatrist assessment of the mother Ms Simons and for this purpose is appointed as a single expert witness for the purposes of preparing a report.
12. That the Independent Children’s Lawyer be granted leave to photocopy evidence produced on subpoena and supply to the Single Expert Witness for the purposes of preparing the report.
13. That the Mother undertake all acts to ensure attendance upon the Single Expert Witness as arranged by the Independent Children’s Lawyer.
14. That within 21 days the Mother obtain a letter from her treating general practitioner addressed to the Independent Children’s Lawyer advising
(a) her current medication;
(b) her current diagnoses; and
(c) the frequency of attendance upon her general practitioner.15. That subject to the Independent Children’s Lawyer obtaining funding for the purposes of preparing the report, the costs of the report are to be paid by the Legal Aid Commission NSW.
16. In the event of Order 15 not being satisfied, the Independent Children’s Lawyer may re-list this matter before a Registrar for directions.
17. That proceedings numbered NCC373 of 2008 and NCC1702 of 2007 are consolidated [proceeding relating to Y and proceedings relating to S].
On 22 December 2008 Y’s father filed a Notice of Discontinuance.
An appointment was scheduled for the mother to attend upon Dr W on 26 February 2009 which she did not attend. Dr W prepared an Interim Report/File Review which is dated 26 February 2009 in which he suggested that a psychiatric assessment of the mother should be undertaken before the matter proceed.
On 12 March 2009 the matter came before me and the following orders were made:
1. I give the Respondent Father leave to make an oral application to suspend Orders 2, 3, 4, 5, 6, 7 and 9 dated 12 November 2008.
2. Pending further order that Orders 2, 3, 4, 5, 6, 7 and 9 dated 12 November 2008 are suspended.
3. That the Mother’s Application filed 28 May 2007 is struck out for want of prosecution.
4. That the Father’s Response is listed for hearing on an undefended basis commencing 10.00 am on 20 April 2009.
5. In the event the Father seeks orders different to those contained in his Response, he shall provide notice of the amended Orders to the Mother within 14 days.
6. That the Father file and serve any affidavit upon which he relies by 4.00 pm on 10 April 2009.
7. That the solicitor for the Mother notify the Mother in writing of the Orders made today and at the same time serve upon her a Notice of Ceasing to Act.
8. Upon compliance with the above order the solicitor for the Mother’s application for leave to withdraw from the proceedings is granted.
On this date, the mother’s Application filed 13 February 2008 was struck out and all outstanding applications in relation to Y were dismissed.
On 24 March 2009 the father filed a Further Amended Response seeking, in summary, the following final orders:
1. That the child lives with him.
2. That he have sole parental responsibility.
3. That the mother spend no time with the child, or in the alternative, that the mother spend time with the child as agreed in writing by both the mother and the father.
On 20 April 2009 the matter came before me for final hearing. The mother did not attend and final orders were made in her absence.
The mother’s circumstances
In the most recent affidavit material filed by the mother she said that she resides with the maternal grandmother at the maternal grandmother’s home at Town H. The father however alleges that the mother has no fixed address. The mother is not in paid employment.
The mother says she has not taken drugs since about April 2007. She produced one clear drug screen dated 8 May 2008, results of which are attached to her affidavit filed 11 November 2008. The mother says she does not spend time with drug dealers as alleged by the father and does not allow the child to be in the presence of people who use drugs.
The father’s circumstances
The father resides with the paternal grandparents at Town R. This is a four bedroom home which has a rumpus room and swimming pool. The child has his own room. The child has two cousins, U aged 8 and T aged 7 who visit regularly.
The father is currently employed on a full-time basis. He works on a rotating roster which comprises two weeks rotation between day and night shifts. The father has fourteen days off each month. When the father is on day shift he works from 6.30 am until 4.30 pm. When he is on night shift he starts at 9.30 pm and finishes at 7.30 am. During the time that the father is at work, the paternal grandmother is available to care for the child.
The child attends Day Care at Town R every Tuesday and Thursday from 9.30 am until 4.30 pm. He also attends sport training every Wednesday and Friday from 4.30 pm to 5.30 pm. The child goes to classes on Tuesdays.
The father has attended upon the Drug and Alcohol Service at Town N on 10 February 2009 for assessment. The Counsellor wrote a letter to the Court dated 11 March 2009 advising that “based on this assessment [the father] does not fill the criteria for alcohol abuse or dependence”.
At work, the father is required to undertake random drug and alcohol screens. The results of two such screens, one dated 27 January 2009 and the other 19 February 2009, are attached to his affidavit filed 9 April 2009 and both are negative for alcohol and drugs.
The father says that the mother does not spend time with the child as provided for in the orders. The father says the last time the mother saw the child was on 2 November 2008. This is corroborated by the paternal grandmother. The paternal grandmother says that she and the child attended the changeover venue until it was clear from her non attendance that the mother was no longer interested. Nor has the mother come to the paternal grandparents’ home to spend time with the child on Fridays as provided for in the 12 November 2008 orders. The father says that the mother has only spoken to the child once since 2 November 2008, namely on Boxing Day when he telephoned the mother at the maternal grandmother’s home.
The father receives $12.76 per month child support.
The child will commence school in 2010 and the father has enrolled the child at P School at Town R. This is the same school the child’s cousin T attends.
The father intends to purchase a home in the near future. He is looking for a home near the paternal grandparents home so they can continue to assist with the child’s care when he is at work. The father hopes to move into a new home before the child starts school so the child can settle into his new home and surroundings.
For good reason, the father is concerned about the mother’s drug use and her mental health.
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part 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.
2.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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility where the evidence satisfies the Court that it would not be in the child’s best interests refutes any notion that the Act elevates parents above others in parenting cases decided under the present Part VII.
Applying the law to the facts
This is a sad case where the child’s mother has ceased contact. The last time the mother spent time with the child was 2 November 2008. There is no doubt that paternal grandmother took the child for ordered changeover but that the mother did not turn up. This was upsetting and damaging for a young child, who up until July 2007 primarily lived with the mother. For reasons unknown to the Court she chose not to participate any further in these proceedings.
Both parties made serious allegations against each other. The mother raised allegations of family violence and abusive behaviour by the father, as well as his excessive drinking. The father established serious drug use by the mother, and that she had serious mental health issues. Whether these are related to drug abuse is not known but cannot be discounted.
The presumption of equal shared parental responsibility is rebutted. The child’s best interests will be served if the father has sole parental responsibility. The father has demonstrated a commitment to caring for the child and does his best. When the child came into his care he was not toilet trained, he did not know how to clean his teeth, he was unable to dress himself and his vocabulary was very limited. Since being in the father’s care, the child has been toilet trained, his vocabulary has improved, he knows how to ask for things and say ‘please’ and ‘thank you’, he can dress himself, drink from a cup and he knows how to use cutlery. There is no doubt that he has come along in leaps and bounds. This is to the father’s and his family’s credit.
DOCS reported an improvement in the child since he has been in the father’s care. A DOCS assessment which was completed on 20 February 2008 states:
[The child] was observed on 2 July 2007 when [the father] collected him following [the mother’s] admission to [Town N] Mental Health Unit. [The child] appeared to be unwell and had a number of untreated chicken pox sores on his body. His clothing was dirty and he was not dressed appropriately for the cold weather. [The child] had limited speech and appeared to be sad. In comparison, when [the child] was observed on 2 Jan 2008, he appeared to be a happy and healthy child who’s speech had developed well. [The child’s] child care worker reports that he is a happy child who is at the appropriate stage of development and demonstrates no behavioural difficulties.
The father has also enrolled the child in day care, sport and dancing. I am confident that the father will continue to make decisions that are in the best interests of the child. He has the strong support of the paternal grandparents.
As to the amount of time the child should spend with each parent, considering that the presumption of equal shared parental responsibility is rebutted, I am not obliged to consider equal time and substantial and significant time with both parents. The evidence leads me to conclude that it is in this child’s best interest that he lives with his father. The evidence suggests that the mother leads a disorganised life and is unable to put the child’s needs ahead of her own. According to the father’s and the paternal grandmother’s evidence, the mother has not seen the child since November 2008 nor has she had any other contact with the child, apart from a telephone call on Boxing Day initiated by the father. Orders were made on 12 November 2008 for the mother to spend time with the child but for reasons unknown to the Court, the mother has chosen not to spend time with the child. In light of these circumstances, I do not think it would be appropriate to make orders for the mother to spend time with the child if she will not comply. Therefore, I make an order for the child to spend time with his mother as agreed by the parties. So that it is clear I am satisfied he will agree to the mother spending time if it is unsafe.
For these reasons I am satisfied the orders identified at the start of this judgment are in the child’s best interests.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.
Associate:
Date: 2 April 2012
Key Legal Topics
Areas of Law
-
Family Law
0
0
1