VIETH & VIETH

In the matter of *Vieth & Vieth*, heard by McClelland DCJ, the proceedings concerned applications relating to the child X, born in 2011. The mother sought orders for the child to live with her and have no contact with the father. The Independent Children’s Lawyer (ICL) supported these orders and also sought ongoing support for the mother. The father, who was incarcerated and serving a sentence for maintaining a sexual relationship with a young person, did not participate in the proceedings despite being notified.

The court was required to determine whether to proceed on an undefended basis, given the father's non-participation. It also had to consider the paramountcy of the child's best interests, the need to protect the child from harm, and whether the presumption of equal shared parental responsibility applied. The court needed to balance the potential benefit of a meaningful relationship with each parent against the risks of harm to the child, particularly in light of allegations of family violence and the father's criminal conviction.

McClelland DCJ reasoned that the father's incarceration and conviction for serious sexual abuse rendered the presumption of equal shared parental responsibility inapplicable. The court found that there was an unacceptable risk of harm to the child if any time was spent with the father, and that no benefit would accrue to the child from a meaningful relationship with him. The court was satisfied that attempts had been made to contact the father and that he had been notified of the proceedings, allowing the matter to proceed undefended. The court applied the principles of protecting children from harm and prioritising their best interests in making its orders.

Consequently, the court made orders that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend no time with and not communicate with the father. The mother was also ordered to comply with recommendations regarding her mental health treatment and to engage with counselling services for herself and the child, particularly in light of alleged family violence and the child's lack of protective behaviours. The mother was also required to enrol in a parenting separation program.