WENDEL & DABNEY

[2018] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

WENDEL & DABNEY [2018] FCCA 2212

Catchwords:
FAMILY LAW – Father’s application for sole parental responsibility – where mother omitted serious criminal behaviour from disclosure – where mother has a history of drug related offences – where children expressed desire not to see mother in Child Inclusive Conference – where presumption of equal shared parental responsibility is rebutted – consideration of s.60CC factors – where sole parental responsibility in best interests of children – application granted.

Legislation:

Family Law Act 1975, ss.11F, 60CA, 60CC, 61DA

Applicant: MR WENDEL

Respondent: MS DABNEY

File Number: BRC 3360 of 2013

Judgment of: Judge Egan

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Brisbane

Delivered on: 7 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Downes

Solicitors for the Applicant: Baxters Solicitors

Respondent:	No appearance
Solicitors for the Independent Children’s Lawyer	Dooley Solicitors

IT IS ORDERED ON A FINAL BASIS:

1. That all previous parenting orders be discharged.

2. That the father shall have sole parental responsibility for the major long term decisions of the children, [X] born 2004 and [Y] born 2006 (“the children”).

3. That the children shall live with the father.

4. That pursuant to s 68B of the Family Law Act 1975, the mother be restrained from entering upon or approaching within 100 metres of:

   (a)The father’s residence; and

   (b)Any school attended by any of the children.

5. That the father shall take all reasonable steps to ensure the children are able to communicate with the mother in the following manner:

   (a)By the mother being able to send an email to the children on or about dates proximate to their birthdays and Christmas Day; and

   (b)By the father promptly sending to the mother:

   (i)An email acknowledging receipt of the mother’s communication, and

   (ii)Any email communication that the children, or any of them, wish to be conveyed to the mother.

6. That each parent shall forthwith inform the other in writing, and keep the other informed of, their respective email address.

7. That each parent be restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

8. That the father shall authorise and request the principals of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

9. That the children shall be at liberty to travel overseas with the father for holidays.

10. That the father be permitted to solely apply for, and be granted a renewal of the children’s passports at such times as they are due for renewal.

11. That the father is to hold the children’s passports.

12. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That pursuant to s.65DA(2) 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 are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3360 of 2013

MR WENDEL

Applicant

And

MS DABNEY

Respondent

REASONS FOR JUDGMENT

1. The father filed an amended initiating application on 3 June 2016.  The orders sought in that application have been refined and are set out in the applicant’s case outline filed in these proceedings.  The mother filed a response to the father’s initiating application on 29 January 2016.  The orders sought by the mother are as set out in her response.  It is accepted that, at the time that the mother filed her response, she failed to disclose the fact that she had been charged previously with seventy-five (75) criminal offences. 

2. The independent children’s lawyer in this matter, Mr Dooley, tendered a bundle of both subpoenaed documents and other documents of relevance to the proceedings.  It was marked exhibit 1.  The bundle relevantly discloses on pages 17 to 19, inclusive, that, on 18 January 2018, the mother was charged with at least three drug-related offences, namely, possession of a dangerous drug, being methamphetamine, a second charge of possession of a dangerous drug, being cannabis, and, thirdly, possession of a dangerous drug, being Alprazolam. 

3. The criminal history of the mother discloses that she had previously been granted bail, a condition of which was that she would not re-offend.  It seems clear that, to the extent that she was charged with the drug offences in January 2018, that that made her liable to a breach of bail, most likely necessitating her re-incarceration in respect of previous convictions.  In any event, the mother has failed to attend today’s court proceedings.  The children are, respectively, aged 14 and 12 years.  The older boy last saw his mother on or about 27 November 2015.  The younger boy last saw his mother on or about 12 February 2016. 

4. The latest external commentary from a family consultant is that contained in a CIC memo issued to the court pursuant to the making of an order under section 11F of the Family Law Act1975 (Cth) (“the Act”). It is clear from a reading of that memo that the children do not wish to see their mother. Each of the children were recorded as having relayed to the family consultant certain events which justify the children’s expressions of wishes in that regard. It should be added that the children seem to be well aware of the mother’s drug history, and directly relate her drug abuse to their wish not to see her. The children are attending High School, and their report cards record that they are proceeding satisfactorily. The father is doing a good job in rearing the two children.

5. As to parental responsibility and parenting orders, it is considered that it is appropriate that all previous parenting orders be discharged. The mother has shown little interest in the welfare of the children for at least two and a half years. She has not prosecuted any claim to see the children, and it is likely that her drug abuse has played a part in that. In all of the circumstances, it is appropriate that the presumption of equal shared parental responsibility imposed by section 61DA of the Act ought to be rebutted pursuant to the provisions of section 61DA(4) of the Act. It is not considered that it would be in the best interests of either child to have their future welfare and wellbeing jointly determined by the father and the mother.

6. Not only does the court consider that the mother, based upon the material filed in the proceedings by the father and the Independent Children’s Lawyer (“ICL”), is incapable of arriving at rational decisions concerning such future welfare and wellbeing, but also, if any such order was to be made, it would be likely to lead to ongoing court proceedings due to disagreements between the parties, and such course ought not to be left open.  In all of the circumstances, therefore, it is ordered that the father have sole parental responsibility for the two children. 

7. As to the considerations outlined in section 60CC of the Act, the matters referred to in subparagraph (3) thereof are dealt with as follows:

   a)Each of the children have expressed a wish that they not have contact with their mother.  The mother has demonstrated a total lack of insight in relation to the rearing of the children, and also has presented as a risk to the welfare of the children.  There is evidence that she was at least prepared to commit arson in relation to a dwelling which was, at the time, occupied by the children. 

   b)Each of the children have a good relationship with their father.  He cares for them and ensures that they are well educated and otherwise socially connected.  The mother has had no involvement with the children for a number of years, and her non-appearance today is another example of her lack of interest in them. 

   c)The father has shown diligently a desire to do the best for his children, whereas the mother has taken no or little interest in the children for years. 

   c)(a) The father has maintained and fulfilled his obligations to maintain each of the children, whereas the mother, on the other hand, has failed dismally in that regard. 

   d)It is inconceivable that either child would be safe in the care of their mother, and it would be negligent for any such course of action to be undertaken or condoned. 

   e)It is unknown whether the mother is presently incarcerated or not.  In any event, the practical difficulty of the children spending time with the mother is evident from the CIC memorandum.  It is likely that, if the children were required to spend time with their mother, that they would run away from her. 

   f)The father is able to, and has demonstrated his capacity to, care for the needs of the children, including their emotional and intellectual needs.  The mother has not demonstrated any such capacity. 

   i)The children recognise that their mother, through her drug use, is incapable of caring for them and otherwise carrying out the responsibilities of parenthood. 

   j)There has been family violence and abuse as set out in the CIC report.  The mother is clearly inappropriate in her dealings with the children, as is evident from the notes of the family consultant.  Also, the preparation of an act of arson is shocking in itself. 

   l)The making of a final parenting order in the current circumstances will be least likely to lead to the institution of further court proceedings. 

8. In all of the circumstances, therefore, it is considered, pursuant to the provisions of section 60CA of the Act, that the best interests of the children, being the paramount consideration in making any parenting order, are best served by an order that each of the children live with the father. The court has been handed a draft order which is the subject of agreement as between counsel for the father and Mr Dooley, the independent children’s lawyer.

9. Costs orders are discretionary.  It’s likely that any costs order will not be able to be satisfied by the mother, and, in the circumstances of this case, it is best that all court proceedings between the mother and the father are finalised, including on the issue of costs.  It’s a downhill spiral that the mother is on, which, in the court’s view, is unlikely to improve in the future.  The forceful submissions made by counsel on behalf of the father in relation to the future enforceability of costs orders are noted, but, in all of the circumstances, it is not appropriate that any such order be made. 

10. Regard has also been had to the provisions of section 60CC(ii) insofar as the primary considerations relating to the determination of what is in a child’s best interests when making a parenting order. It is in the best interests of the children to have an ongoing meaningful relationship with their father.

11. In terms of subparagraph (b) of section 60CC(ii) of the Act, it is considered that there is a need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence, and, in that regard, an order which does not comprehend the children having any contact with the mother is in the best interests of the children in that regard.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 19 September 2018