VICKERY & PROUT

[2015] FCCA 562

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERY & PROUT [2015] FCCA 562

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – sole parental responsibility – where mother did not attend court – where child is living with father – drug issues – allegations of family violence.

Legislation:

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

Applicant: MR VICKERY

Respondent: MS PROUT

File Number: SYC 7767 of 2014

Judgment of: Judge Scarlett

Hearing date: 2 March 2015

Date of Last Submission: 2 March 2015

Delivered at: Sydney

Delivered on: 2 March 2015

REPRESENTATION

Solicitor for the Applicant: Ms Steiner

Solicitors for the Applicant: Steiner Legal

Respondent: No appearance

ORDERS

1. The Applicant Father is granted leave to proceed ex parte.

2. All earlier parenting orders are discharged.

3. The Father is to have sole parental responsibility for the child [X] born [omitted] 2004.

4. The child [X] is to live with the Father.

5. The child is to communicate with the Respondent Mother at times nominated by the child.

6. Any time that the Mother spends with the child is to be supervised by a responsible adult.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7767 of 2014

MR VICKERY

Applicant

And

MS PROUT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a boy named [X] who is ten years of age. [X] has been living with his father since 27^th November 2014. The Father is concerned that the Mother has not been taking care of the child adequately because of her addiction to illicit drugs.

2. The Mother has neither attended court nor filed any documents.

Background

1. The Father commenced a relationship with the Mother in about 2000. There is one child of the relationship, [X], who was born [omitted] 2004. The parties separated when the child was about four years of age.

2. The Father commenced spending time with the child every second weekend by informal arrangement between the parents. There are no parenting orders in force.

3. The Father deposed in his affidavit of 3^rd December 2014 that the Mother had an ongoing addiction to the drug crystal methamphetamine hydrochloride, commonly known as “Ice”. She has spent various periods of time in rehabilitation facilities but her addiction continues.

4. On 27^th November 2014 the Department of Family and Community Services contacted the Father and advised him that the child was at risk, because the Mother’s drug addiction had worsened and she had abandoned the child, leaving him in the care of her mother. An officer of the Department advised the Father to collect the child and take him into his care.

5. The Father drove to Newcastle and collected the child from school. He took him back to live with him and his wife. The Father deposed that he advised the Mother by telephone that he had taken the child into his care. She informed him that she did not consent to the child living with him.

6. The Father believes that the Mother is currently in Queensland.

Procedural History

1. The Applicant commenced proceedings by filing an Application for parenting orders, a Notice of Child Abuse, Family Violence or Risk of Family Violence and a supporting affidavit on 10^th December 2014. The Application was returnable on 2^nd February 2015.

2. On the return date, as the Applicant had been unable to serve the Court documents personally, he was granted leave to proceed ex parte. The Court also made interim orders that:

   a)the child was to live with the Father; and

   b)the Father was to have sole responsibility for decisions about the schooling of the child and have sole responsibility for liaising with schooling authorities, school teachers and receiving school reports, so that the child may be enrolled at a school closer to the Father’s home. 

3. The Application was adjourned to 2^nd March 2015. On that date, the Father’s solicitor, Ms Steiner, provided affidavit evidence of her unsuccessful attempts to contact the Mother on her mobile telephone between 23^rd and 27^th February. The Father also affirmed an affidavit on 2^nd March 2015 deposing that:

   a)He saw on the Mother’s Facebook page a post on 29^th November 2014 confirming that she was at the [omitted] Tavern in Queensland;

   b)The Mother sent the child a Facebook message in December 2014 advising that she was in Mackay in Queensland; and

   c)He sent the Mother an SMS message on her mobile telephone number advising her of the Court proceedings.

4. The Mother did not attend Court.

5. The Father gave short oral evidence about the arrangements that he had made for the care of his son.   

Applications for Parenting Orders

1. When the Court is hearing an application for parenting orders, it must consider the matters set out in sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth).

2. All of those matters have been considered where they are relevant.

Parental Responsibility

1. There is a presumption in s.61DA(1) of the Act that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. However, as the mother appears to have left the child in the care of her mother and there is evidence about her addiction to crystal methamphetamine, I am satisfied that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.

2. I will order that the Father is to have sole parental responsibility for the child [X].

The best Interests of the Child

1. The best interests of the child must be the paramount consideration. Section 60CC of the Act sets out the primary considerations and the additional considerations for the Court to determine what the child’s best interests are.

2. The primary considerations are set out in s.60CC(2) of the Act. On the one hand, the Court must consider the benefit to the child of having a meaningful relationship with both of his parents. On the other, the Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The Father has given evidence that he has made arrangements for the child to live with him and his wife and he has enrolled him in school. The Mother has provided no evidence at all.

4. The Father has also given evidence, not only about the Mother’s ongoing drug addiction, but about acts of violence perpetrated by the Mother on the child. It is disturbing that the Department of Family and Community Services had to contact the Father to advise him to take the child into his care because of the Mother’s apparent neglect of the child.

5. I am satisfied that it is in this boy’s best interests to reside permanently with his father.

6. If the Mother wishes to apply to vary these Orders or set them aside, she will need to make an application in accordance with Rule 16.05.  

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 March 2015