TESORIERO & SONORA

[2017] FamCA 674

FAMILY COURT OF AUSTRALIA

TESORIERO & SONORA [2017] FamCA 674

FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from proceedings – Where there are allegations the father hits the child – Where the father plead guilty to assault of the child – Where there was an apprehended domestic violence order in place protecting the child from the father – Where the child has expressed fear of the father – Where 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’s legal representatives were unable to contact him and withdrew – Where it is appropriate for the matter to proceed on an undefended basis.  

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Tesoriero

RESPONDENT: Mr Sonora

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Family Law Parramatta

FILE NUMBER: PAC 2329 of 2016

DATE DELIVERED: 1 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 2 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watson Law Pty Ltd

SELF REPRESENTED RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Family Law Parramatta

Orders

1. That the mother, Ms Tesoriero, have sole parental responsibility for the child, B born … 2005.

2. That the said child live with the mother, Ms Tesoriero.

3. That the father, Mr Sonora, shall spend no time with the child.

4. That the father, Mr Sonora, is restrained from molesting, harassing or abusing the mother and/or the child and from entering upon the mother and/or the child’s place of residence, place of employment or at any other place where they may be from time to time and from approaching or entering upon the child’s school and from going within 100 metres or loitering within the vicinity of any of the aforesaid premises.

THE COURT NOTES THAT

1. There is no application for costs by the Independent Children’s Lawyer.

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 Tesoriero & Sonora 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: PAC 2329 of 2016

Ms Tesoriero

Applicant

And

Mr Sonora

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by Ms Tesoriero, the applicant mother, by Initiating Application filed 24 May 2016 in the Family Court of Australia.

2. The application concerns 11 year old B (“the child”) born in 2005, the child of the mother, and Mr Sonora, the respondent father.

Context

1. The mother is aged 48 and the father is aged 41.

2. The parties commenced a casual relationship sometime in 2004 and ended this relationship sometime in 2005 before the mother became aware of her pregnancy. This relationship was not a committed or ongoing one and the parties never cohabitated.

3. On 19 July 2016 a Registrar made orders that the mother effect substituted service of her Application on the father by way of post, text message and Facebook message.

4. On 27 September 2016 orders were made:

   (1)appointing an Independent Children’s Lawyer (“ICL”);

   (2)for the father to file a Response to the mother’s Initiating Application; and

   (3)for the parties to attend on a Family Consultant for Children and Parents Issues Assessment interviews.

5. On 20 December 2016 the parties and the child attended for those interviews and the subsequently produced Memorandum dated 20 February 2017 was released to the parties on 23 February 2017.  

6. When the matter was next before the Registrar on 3 April 2017 it was noted that the father had not contacted his legal representative since the release of the Memorandum. The matter was adjourned to the judicial case management list on 13 June 2017.

7. On 13 June 2017 there was no appearance by or on behalf of the father and orders were made for the matter to proceed to an undefended hearing with the ICL to notify the father of these orders. 

8. On 2 August 2017 there was again no appearance by or on behalf of the father. On that date the Court was satisfied that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis.

Procedural fairness

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (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.

   (3)…

2. In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the father’s involvement and leave uncertain the circumstances of the child.

3. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

4. Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

5. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

6. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the three young children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

7. Such is the case presently for consideration.

8. In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:

   197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:

   If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)

   …

9. The Full Court then said:

   201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:

   Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.

   202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.

   …

   204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.

10. On 2 August 2017 the Court was satisfied that all appropriate attempts had been made to notify the father of the consequences of his nonappearance and that he had been given ample opportunity to engage in the proceedings. In the circumstances it was appropriate for the matter to proceed on an undefended basis.   

11. Orders were made, as sought by the mother and supported by the ICL, for the mother to have sole parental responsibility, for the child to live with the mother and spend no time with the father and that the father be restrained from approaching or harassing the mother and child. Reasons for judgment were reserved. These are those reasons.

The Mother’s Documents

1. The mother relied on:

   a)her outline of case filed 27 July 2017:

   b)her affidavit filed 14 July 2017.

The Mother’s Evidence

1. The mother deposes to the child spending time with the father by agreement following the child commencing Kindergarten in 2011. This involved the mother taking the child to see the father for a few hours once per week and her remaining present during this time.

2. Upon the child turning seven in September 2012 the father commenced spending one day each weekend with the child without the mother being present and subsequently this time increased to alternate weekends and half school holidays.  

3. The mother deposes to a number of times when the child returned from time with the father with bruising and/or reporting that the father had hit him. These incidents are as follows:

   a)On 9 January 2016 the child returned from spending one week with the father with red marks on his lower back. When asked what happened the child replied “dad slapped me across the back with his hand”.

   b)On 22 January 2016 the child returned from spending one week with the father with bruising on his legs and left hand and indicated to the mother that “dad kicked me and squeezed my hand”. The mother questioned the father about the marks via text message and the father indicated he was unsure how the child got the bruises but that they might be from martial arts training. 

   c)On 15 April 2016 the mother asked the child if he had received any smacks from the father and the child responded “dad smacked me across the face”.

   d)On 16 April 2016 the mother noticed bruising on the child’s stomach, back and under his arm. When questioned, the child stated “dad did it, he kicked me”.

4. On 16 April 2016 the mother took the child to a police station and both she and the child made statements to police. A provisional Apprehended Domestic Violence Order (“ADVO”) was issued as a result.

5. On 23 May 2016 the father was charged with two counts of common assault and two counts of assault occasioning actual bodily harm.

6. On 17 August 2016 the father plead guilty to one charge of assault occasioning actual bodily harm and was sentenced to a nine month good behaviour bond. On that date a final ADVO was made against the father naming the child as the protected person for a period of 12 months.

7. The child began attending on a psychologist in July 2016. 

8. The child currently lives with the mother in a granny flat on the maternal grandparents’ property. The mother is in full time employment in administration.

9. The child is currently in year six and will be attending high school next year.

10. The mother says the child is fearful of the father and is having no contact with him. She says the child’s nightmares and teeth grinding have improved since time with the father ceased in April 2016. 

Children and Parents Issues Assessment

1. It was identified during the Assessment that the Family Consultant had previously interviewed the father in relation to proceedings relating to the father’s child from a subsequent relationship.

2. The mother reported to the Family Consultant that she lived with the child in a granny flat on a property owned by the maternal grandparents and that she was in full time employment with the child being cared for by the maternal grandparents after school on the three days per week. 

3. The father reported to the Family Consultant that he lived in a rental property in Suburb C with his partner and that he is a stay at home parent to their two young children, D and E.

4. The father further reported that he does not currently spend time with his seven year old son, F, from a subsequent relationship despite orders being in place for him to do so.

5. After interviewing the child, the Family Consultant relevantly reported the following:

   [The child] said that he lives with “my mum, my nan and my pop”. When [the child] was asked whether he has a dad, he responded “yes”. When [the child] was asked whether or not he sees his dad, he indicated he did not see him. When [the child] was asked about the reasons for this, he said “I’ve got an AVO on him”. When [the child] was asked how he feels about this, he said “I don’t know how to feel, I can’t think how to put it in words”.

   [The child] said that previously he had seen his father every second weekend. He described that as “OK”. When [the child] was asked how he would feel if someone decided that he should start to see his dad again, he responded “I’d just be scared”. When [the child] was asked more specifically about this he said “he keeps smacking me, that’s why I’m scared”. [The child] reported no fears or worries in relation to [his mother].

   [The child] says that he calls [the father’s partner] “[Ms G]”. When he was asked whether he ever feels scared or worried with [the father’s partner], the child responded “a bit”, but did not provide any further detail about this. the child identified that he has a younger “half-sister”, [D], and a younger “half-brother”, [E], who live with [the father] that he now does not see. He said that he misses seeing them. [The child] said that he also has a “half-brother”, [F], who he sees occasionally when their mothers agree to meet at a park.

   When [the child] was asked how he would feel if it is decided that he will live with his father and see his mother on alternate weekends; he replied “more scared than I am now”. [The child] reported that previously [the father] had asked him whether he wanted to live with him; he said that he responded “yes” to his father, but explained that this was to stop his father from continuing asking.

   When [the child] was asked about things he likes doing with his father, he responded “going out to certain places, like the city or bowling”. [The child] said that the last movie he had seen with his father was “SpongeBob”. When [the child] was asked whether there were things that he does not like doing with his father; he responded “the karate he’s been making me do”. When [the child] was asked further about this he said that his father smacks him when he does not do things correctly.

   When [the child] was asked about things he likes doing with his mother, he said going to the movies. [The child] said that Finding Dory was the last movie he had seen with his mother. He also identified going to the beach and the skate park as activities he enjoys with his mother. When [the child ]was asked about things he did not like doing with his mother, he said “going to her work” because it is “boring there” and grocery shopping.

6. The child spoke positively about school and the mother reported to the Family Consultant that his performance at school had improved since the child stopped spending time with his father.

7. The mother also reported that the child was seeing a psychologist under a mental health plan.

8. No other issues of family violence were reported by either party other than the mother claiming that the parties had argued a lot and sometimes she was “scared” of the father.

9. The father expressed a concern about the mother’s excessive consumption of alcohol. The mother indicated that she had been convicted of “mid-range” drink driving prior to the birth of her son but that she was currently drinking a lot less than she was at that time and drinks in moderation.   

10. The mother expressed no concerns as to the father’s alcohol consumption but the father did admit to undertaking three drug and alcohol “detox” programs in 2015. He failed to answer further questions about his need to participate in such programs. 

11. Both parties reported concerns about the mental health of the other parent. Neither parent admitted to having any diagnosed mental health condition but the Family Consultant did report the following about the father:

    [The father] was visibly distressed in response to the feedback from the Family Consultant that [the child] had said that he was scared of [the father] during his interview. [The father] reported that he has the ability to move things with his mind and said that previously he had started to teach [the child] these skills.

1. The Family Consultant also relevantly reported the following about possible child abuse by the father:

   [The mother] said that she had become concerned about [the child] returning with bruises from spending time with [the father]. [The father] said that he had entered a guilty plea to a charge of assaulting [the child] because he had caused the bruising on [the child]. [The father] explained, however, that it had not been his intention to harm [the child].

2. Ultimately, the Family Consultant came to the following conclusions:

   Currently [the child] appears to have a well-established and generally positive relationship with [the mother] and a very strained relationship with [the father]. This is in a context of [the father] having been convicted (with a guilty plea) of assaulting [the child] and an enforceable Apprehended Domestic Violence Order in place. It is possible that [the child] finds [the father’s] approach to teaching martial arts aversive. It is possible that the current situation reflects [the child’s] response to the very acrimonious relationship between his parents.     

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled in Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

   (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. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, 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. The presumption relevantly does not apply:

   a)If there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

2. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent, the Court may, but is not required to, consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.

3. Given the father’s conviction for assaulting the child and his disengagement from these proceedings, it is clear in this matter that upon a consideration of the best interest considerations (s 60CC) it is in the best interests of the child that the presumption not apply.

4. Accordingly, there is no need to consider equal or substantial and significant time. Appropriate time will be determined according to the best interest considerations. 

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The child’s relationship with the father is strained as evidenced by his reported fearfulness of the father to both his mother and the Family Consultant, the father’s conviction for assault of the child and the fact that the child has not spent time with his father since April 2016. By virtue of his disengagement from these proceedings, the father is taken to be forsaking any opportunity to repair his relationship with the child. 

4. It is, otherwise, clear that the child has a positive and meaningful relationship with the mother, who has been his primary carer since birth, and it is important that this relationship continue.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the father’s assault conviction and the child’s expressed fears of the father, this consideration is substantially determinative of the present application.   

2. This consideration, which is given primacy, is supportive of the orders sought by the mother and the ICL.

The additional consideration: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

   m)Any other fact or circumstance that the court thinks is relevant. 

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The child has expressed the view to the Family Consultant that he is scared of his father and he would be “more scared” if the Court made orders for him to live with his father. Given the child’s age significant weight should be afforded to his views.

4. It is clear from the evidence that the child has a positive relationship with the mother but a strained relationship with the father. The child expressed to the Family Consultant that he misses his half-siblings (his father’s three younger children) and it is unfortunate that he no longer has any contact with them. It is encouraging that the child reports seeing one of his half siblings occasionally when their mothers arrange to meet.

5. By virtue of his disengagement from these proceedings, the father is taken to be abandoning the right to spend time with or participate in long term decision making for the child. In addition to the father’s disengagement, his failure to provide any financial support for the child and his conviction for assault of the child indicate a poor attitude towards his responsibilities as a parent.  

6. There is no practical difficulty associated with the orders proposed by the mother and the ICL as they essentially maintain the current circumstances of the child.

7. There are serious questions raised about the father’s parenting capacity in light of his pleading guilty to assault of the child. Those questions remain unanswered given the father’s failure to engage with these proceedings. 

8. Orders as sought by the mother are unlikely to lead to the institution of further proceedings given the disengagement of the father.   

9. Each of the above considerations supports the orders as sought by the mother and supported by the ICL and such orders are, for the reasons set out above, clearly in the best interests of the child.

10. Orders will be made accordingly

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 September 2017.

Associate: 

Date:  1 September 2017