Xu and Xu
[2018] FamCA 255
•26 April 2018
FAMILY COURT OF AUSTRALIA
| XU & XU | [2018] FamCA 255 |
| FAMILY LAW – CHILDREN – Where the father has disengaged from proceedings – Where it is appropriate for the matter to proceed undefended – Where there are concerns about the parenting capacity of both parents – Where the mother is a disengaged parent with limited insight – Where the mother is supported by her older son and partner in caring for the child – Where the child’s maternal half sibling is a significant emotional support for him and assists in the child’s care – Where the father does not have the relational skills to develop a relationship with the child – Where the child has expressed the view that he wishes to spend no time with his father – Where the Family Consultant is of the opinion the child has decided that any benefit of spending time with the father is outweighed by the emotional pressure placed on him by the mother – Where it is in the best interests of the child to spend no time with the father – Orders made as sought by the mother. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| G & C [2006] FamCA 994 | ||
| APPLICANT: | Mr Xu | |
| RESPONDENT: | Ms Xu |
| INDEPENDENT CHILDREN’S LAWYER: | Shedden & Associates |
| FILE NUMBER: | PAC | 5571 | of | 2011 |
| DATE DELIVERED: | 26 April 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 25 January 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Opal Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Shedden & Associates |
Orders
That the mother have sole parental responsibility for the care, welfare and development of the child of the relationship, B born … 2005 (“the child”).
That the child live with the mother.
That the father be at liberty to telephone the child on the mother’s mobile number (to be provided to the father by SMS text message within seven (7) days of the date of these orders) from his mobile number …, with such number to be displayed on the caller identification on one occasion per week being 9am each Saturday or at such other time as agreed between the parties.
That the mother will not prevent, interfere with or restrict such telephone calls unless the child chooses not to speak with the father.
That the father be at liberty to send to the mother at a PO Box address (to be provided to the father by SMS text message within seven (7) days of the date of these orders) gifts and cards to the child for his birthday and Christmas.
That the mother shall provide to the child such items received pursuant to Order (5) above and acknowledge receipt to the father by way of SMS text message.
That the mother shall keep the father informed as soon as practicable of:
(a) any major event relating to the child’s health; and
(b) any change in her mobile phone number.
That the child’s name be removed from the Family Law Watchlist.
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 Xu & Xu 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 5571 of 2011
| Mr Xu |
Applicant
And
| Ms Xu |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 13 year old the child, B of Ms Xu (“the mother”) and Mr Xu (“the father”).
The parents commenced their relationship in 2004 and separated in 2008.
When the father initiated these proceedings in November 2011 he sought orders that the parties equally share parental responsibility for the child, that the child live with him and spend alternate weekends and half school holidays with the mother and that the father be named as the child’s father on his birth certificate. The father has never amended his application.
The mother originally sought that she have sole parental responsibility for the child, that the child live with her and spend no time with the father and the parties submit to parentage testing.
The father ceased engaging in these proceedings in late 2017 following the release of an Updated Family Report.
On 18 October 2017 the Court was informed by the father’s solicitors that they had been unable to get instructions from their client. They were given leave to withdraw and directions were made for the matter to proceed to an undefended hearing.
On 25 January 2018 there was no appearance by or on behalf of the father. On that date the mother sought orders that she have sole parental responsibility for the child and that the child live with her and spend no time or communicate with the father. The Independent Children’s Lawyer supported the orders sought by the mother and sought further orders that the child be placed on the Family Law Watchlist (previously known as the Airport Watchlist) but notwithstanding that order the mother be allowed to travel overseas with the child.
Judgment was reserved. The question for me to determine is what parenting arrangements are in the best interests of the child.
Background
The mother, who is 46 and was formerly known as Ms C, met the father, who is 52, in 2001. They commenced a relationship in 2004 which ended in 2008.
The mother has one child from a previous relationship, Mr D, aged 25.
The parties never lived together and the father was married to another woman, with whom he has two daughters, throughout the course of his relationship with the mother. The father is now separated from his wife and his two daughters live with their mother and spend time with him.
The parties’ child (“the child”) was born in 2005.
Following separation the father rarely spent time with the child and the mother alleges that when he did spend time with the child it was only for a few minutes on each occasion.
The mother alleges that the father was violent and aggressive towards her both during the relationship and subsequent to separation. She briefly details a couple of incidents in her affidavit in which the father spoke in a derogatory manner towards her in front of the child, threatened to kill the child, entered her home without permission, damaged her property and twisted her arm.
In March 2010 the father entered the mother’s home and assaulted her. This incident resulted in the police being called and an application made for an Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother and Mr D against the father.
The father ceased spending time with the child altogether in October 2010, when the child was five.
A final six month ADVO was made for the protection of the mother and Mr D in November 2011.
On 28 November 2011 the father commenced proceedings in the Federal Circuit Court of Australia.
On 8 February 2012 orders were made for the mother to file a Response and for the child to be placed on the Family Law Watchlist.
An ICL was appointed in June 2012 before the matter was adjourned so the mother could file her Response.
An order was made by consent on 9 August 2012 for the parties to undergo parentage testing. The testing confirmed that the father was the biological parent of the child.
On 19 December 2012 orders were made by consent for the parties to participate in an intake assessment with a contact centre.
On 4 October 2013 the parties were ordered to attend on a Family Consultant for the purposes of participating in a Child Inclusive Conference. The mother did not attend the scheduled interviews with the child and a second Child Inclusive Conference was scheduled in December 2013 for the mother and child.
Following the mother and child attending the Conference, the matter was transferred to this Court in April 2014.
On 13 June 2014 the mother was required to do all things necessary to facilitate the child commencing spending time with the father at a contact centre. Orders were also made for a Family Report to be prepared.
On 22 July 2014 orders were made by consent for the mother to take the child to a psychologist for the purposes of obtaining a mental health plan.
The child commenced spending weekly time with the father at a contact centre in September 2014.
In November 2014 a Family Report was ordered. The parties attended on a Family Consultant for interviews in May 2015 and the Report was released to the parties in November 2015.
Following the release of the Family Report the parties attended mediation. The ICL requested the matter be relisted for directions in September 2016 following mediation being unsuccessful.
When the matter was next before the court on 13 December 2016 an updated Family Report was ordered. It was noted that there was some urgency due to the fact that the staff at the contact centre at which the child had been spending time with the father was reconsidering the capacity to offer the service as they were of the view that supervision of the father’s contact with the child for this duration of time was outside their guidelines.
The father, the mother and her partner, the child and Mr D, the mother’s older son, were interviewed again in July 2017 by a Family Consultant.
In August 2017 the mother was notified by the contact centre that the father would be overseas in August and September 2017 and contact between the child and the father would resume at the contact centre in early October 2017.
The Updated Family Report was released to the parties on 5 September 2017.
On 7 October 2017 the mother and child attended the contact centre to facilitate the child’s time with the father but the father did not attend and the mother was told to take the child home. The mother deposes that the father has not sought to have contact with the child since this date.
The mother was advised by the contact centre by way of letter dated 11 October 2017 that the decision had been made to suspend the father’s time with the child at the contact centre due to the father’s “lack of commitment”.
On 18 October 2017 the father did not attend court and his solicitor advised the court that he had been unable to obtain instructions from his client and sought to withdraw from the proceedings. Leave was granted to the father’s solicitor to withdraw and directions were made to prepare the matter for undefended final hearing. Interim orders were made for the mother to have sole parental responsibility for the child and for the child to live with the mother and spend no time with the father.
On 25 January 2018 there was no appearance by or on behalf of the father and the mother and the ICL sought that the Court proceed to deal with the matter to finality in the father’s absence.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(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.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, the father’s affidavits will not be read.
The family reports
Two Family Reports have been completed in these proceedings.
The first Report was completed in November 2015. In that Report the Family Consultant recommended that parental responsibility be held by whichever parent with whom the child was to reside. She also recommended that unless the child was found to be at unacceptable risk of harm in the mother’s care should the child reside with the mother and consideration be given to the child spending time with the father and the father’s two daughters (the child’s half-siblings) initially under supervision. It was also suggested that the mother attend on a psychiatrist for a review of her mental health and the child undergo a paediatric assessment prior to trial.
In the Updated Family Report dated 4 September 2017 the Family Consultant observed that the child presented as having some form of developmental delay and gave minimal non-descriptive answers to her questions. He spoke positively of his mother and her partner and his half-brother and his interactions with them were also observed to be positive. The child’s half-brother was again reported to likely be the main source of emotional support for the child.
The child reported spending time with the father was boring and the child did not respond to or engage with the father even when directly questioned during the observation session. The Family Consultant observed that there was very little warmth between the child and the father.
In light of the child’s strong bond with his half-brother and his poor relationship with his father the Family Consultant recommended that the child continue to reside with the mother. She could not recommend that the father spend time with the child but opined that consideration could be given to the father being allowed to send gifts and cards to the child.
The Family Consultant reported that there was little likelihood that the chronic parental conflict the child had experienced for most of his life would improve. Given the parents’ inability to communicate the Family Consultant was of the opinion that the mother should hold sole parental responsibility for the child.
The Family Consultant is a qualified social worker with a number of years of experience as a Family Consultant with the Family Court. Both the mother and the ICL accept the evidence of the Family Consultant and her Reports were not challenged. For these reasons I accept the evidence of the Family Consultant and attach significant weight to her Reports, particularly her recent Updating Report.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary matters and additional matters to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Benefit to the child in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
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”.
The orders sought by the mother would not see the child develop a meaningful relationship with his father.
However, this consideration has not been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The child has, throughout the entirety of these proceedings presented as having a fractured relationship with his father. He has consistently expressed the view to the Family Consultant that he does not want to spend time with his father and his relationship with his father has not improved despite spending weekly supervised time with the father over a number of years. It is clear that the child does not presently have a meaningful relationship with his father.
Of greatest significance is that the father chose not to continue spending time with the child from October 2017 and has now disengaged from the proceedings. The father can be taken from his disengagement to accept that the child will not receive a benefit from having a meaningful relationship with him in the future.
Although the Family Consultant held concerns that the child not spending time with the father may negatively affect the opportunity for the child to feel loved and cared for by the father and to develop a relationship with his half-sisters which he may have enjoyed, the father’s disengagement from these proceedings makes this an impossible task in any event.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
While the mother has made allegations that the father perpetrated family violence against her, at times in the presence of the child, there are no allegations that either parent currently poses an unacceptable risk of harm to the child.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional matters the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
The child presented to the Family Consultant in July 2017 as having some form of developmental delay, gave short non-descriptive answers to questions asked of him and was extremely reserved socially, showing minimal affection.
During his interview with the Family Consultant in July 2017 the child reported positively about his mother, his half-brother Mr D, and his mother’s partner whom he referred to as “Dad”.
The Family Consultant reported the following about child’s views of the father:
[The child] said that [the father] can be “kind” to him. He reported he sees [the father] at the contact centre and remarked that it is “boring at the contact centre.” [The child] said that he does not want to spend time with [the father] any more, even if it was outside the contact centre. When asked why this is the case, [the child] stated, “It makes Mum upset.”
[The child] went on to explain that [the mother] is not angry that he sees [the father] but is angry that she has to organise to take him to the contact centre on a regular basis. When asked if he would like to see [the father], if it could be arranged that this occur without any inconvenience to [the mother], [the child] stated, in a matter of fact tone, that he does not want to do this. [The child] was asked if he would want to see [the father] if the visits involved spending time with his half-sisters and he indicated that he does not particularly care for this but that, if there were other children to play with, it would make the visits more enjoyable. [The child] was asked about overnight time with [the father] and he denied that he was in any way fearful of doing this but stated, “it would just get boring”.
Given the child’s age and that his views have been expressed in unequivocal terms some weight can be placed on those views. However, given the Family Consultant’s opinion that the child may suffer from some form of developmental delay and his presentation as an extremely compliant child, less weight will be placed on the child’s views than might usually be for a child of his age.
Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)
The child has a very limited relationship with his father which is to be expected given the limited time they have spent together throughout the child’s life. It appears this relationship has not progressed in any significant way in the almost year-long period in which the child spent time with the father each week at the contact centre.
The Family Consultant observed that there was very little interaction between the child and the father and made the following comments about the relationship:
… It is noted that [the child] had also reported that continuing to spend time with [the father] causes [the mother] to be upset, which likely places emotional pressure on [the child]. It appeared likely that [the child] is aware that [the mother] does not view him having a relationship with [the father] positively and that he may have been influenced by this, but it does not appear that this is the sole reason why [the child] is saying that he does not want to spend time with [the father] in the future. Based on information available in this updated assessment, and taking into account the information available from past assessments, it appears possible that [the child] has assessed that he does not gain sufficient enjoyment from his time with [the father] to outweigh the emotional pressure placed on him by [the mother’s] negative reaction when he goes to spend time with [the father] and this may explain why he acknowledges that [the father] is kind but he does not appear to desire an ongoing relationship with him.
It is the opinion of the Family Consultant that given the father’s lack of success in developing a relationship with the child in the contact centre there is unlikely to be greater success if the child were to spend time with the father outside the contact centre unless other circumstances, such as the level of parental conflict and the father’s parenting capacity, also change.
The child appears to have a positive but somewhat disengaged relationship with his mother. He was observed to speak very little with the mother although appeared more comfortable with her, and enjoyed his time with her more, than with his father.
The child also has established relationships with the mother’s partner, who appears to have become a much more prominent part of the child’s life in the last couple of years, and the child’s half-brother Mr D. The child appeared to enjoy the attention of his mother, her partner and Mr D during the observation and was observed to smile and laugh with them despite not speaking a great deal.
The Family Consultant expressed the opinion in both Family Reports that Mr D is the child’s primary emotional support and it is likely that the child would be distressed to live separately from him.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother has been the primary carer, with the assistance of Mr D, for the child his entire life.
The father has never been a consistent presence in the child’s life, particularly as the parents never lived together, and he has not been involved in day-to-day care or decision making for the child. He has not paid any child support or supported the child financially.
Although the father has pursued his application for the child to live with him for a number of years since first initiating these proceedings in 2011 he has now disengaged from these proceedings and has ceased spending time with the child at the contact centre. In doing so the father can be taken to be forfeiting the opportunity to be involved in decision making for the child and to spend time with the child.
I attach significant weight to these matters in determining these parenting proceedings.
Likely effect of change in the child’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
As the child has always lived with the mother and has not spent time with the father for over six months the mother’s proposed orders will not result in any changes to the child’s current circumstances.
Given the complete inability of the parents to communicate and cooperate there are significant practical difficulties associated with the child spending time and communicating with the father. The parents have been unable to communicate without the assistance of the contact centre and they live a significant distance apart. Any orders for the child to spend time with the father would require the parents to have significantly greater communication and cooperation than they have demonstrated thus far in order to facilitate changeovers and other activities for the child. However, as there is no current proposal that the father spend time with the child this is not a weighty consideration.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
Concerns have been raised by each party and the Family Consultant in both Family Reports as to the parenting capacity of the mother and the father.
The father has limited parenting skills and this has been clearly demonstrated in his inability to develop a relationship with the child under supervision. In her Updated Family Report, the Family Consultant said:
[The father] presented as desiring a relationship with [the child] but significantly lacking the relational skills to successfully build a relationship with [the child]. Records obtained under subpoena from [the contact centre] suggest that, while [the father] has shown some perseverance by regularly attending visits with [the child] there, difficulties have arisen with regard to his regular lateness and his prioritising talking on his mobile phone rather than spending time with [the child], to the point that formal written warnings have been issued on several occasions by the contact centre. In addition, those same records show that staff identified [the father] as showing very limited parenting skills and little interest in taking up suggestions by contact centre staff about how to remedy this. This is consistent with [the father’s] presentation at interview and in observations.
As to the mother’s parenting skills, the Family Consultant opined:
[The mother] continues to present as a somewhat disengaged parent, who shows little insight into [the child’s] attachments, his emotional needs and possibly also his developmental needs. It is of concern that she does not appear to have any meaningful contact with [the child’s] school but it is possible that this is because language barriers pose communication difficulties.
The father had previously raised concerns about the mother’s mental health and its negative effect on her ability to care for the child. The father has now disengaged from these proceedings.
The only evidence as to the mother’s mental health can be found in the first Family Report dated 4 November 2015 in which the Family Consultant states that the mother has been diagnosed with “depressive episode with psychotic features”. The Family Consultant noted that the mother’s presentation indicated improved mental health in comparison to her earlier presentations when interviewed for the Child Responsive Program.
The Family Consultant is of the opinion that the presence of Mr D, and to a lesser extent the mother’s partner, in the mother’s home “may act as a protective factor for any negative impacts on [the child] if [the mother’s] mental health is found to negatively impact her parenting capacity”. It is likely that their presence in the home also augments the mother’s limited parenting skills.
Mr D acts as the child’s primary emotional support and has shown insight into the child’s emotional and intellectual needs. He has indicated a willingness in these proceedings to assist his mother with care of the child or take over the child’s primary care if necessary.
Neither parent has demonstrated that they have the capacity to care for the child unassisted. However, with the support of her older son Mr D, who is the child’s primary emotional support, and her partner, the mother is the more capable parent.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Both parents are of Chinese background and there is no dispute that the child will experience traditions and practices of this culture in the mother’s household.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The mother has demonstrated a positive, if not proactive or insightful, attitude to the responsibilities of parenthood in her care of the child to date.
While the father had been persistent in seeking to spend time with the child in these proceedings, his lack of development of his parenting skills and unwillingness to take direction from contact centre staff are not suggestive of a positive attitude towards the responsibilities of parenthood.
The father’s lack of commitment to spending time with the child at the contact centre since mid-2017 and his disengagement from these proceedings also demonstrates a poor attitude to those responsibilities and is a matter to which I attach significant weight.
Family violence relating to the child or a member of the child’s family
While the mother contends that the father was violent towards her during and after the relationship and there was an ADVO in place protecting the mother and Mr D from the father in 2011 family violence has not been a prominent issue in these proceedings.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
The mother seeks orders that the child spend no time with the father which will eliminate physical contact between the parties and reduce the parental conflict to which the child is exposed. Given the father’s disengagement from these proceedings, it is in the best interests of the child for the matter to be finalised.
It is to be noted that the Family Consultant suggested the Court give consideration to allowing the father to send cards and gifts to the child on special occasions to which the child would not be obliged to respond so that the child is aware the father is interested in a relationship with him if the child decides to pursue this in the future.
Any other fact or circumstances the Court thinks relevant
The child’s half-brother Mr D, while not a parent, has demonstrated a remarkable attitude towards caring for the child and assisting the mother in raising the child and is to be commended. It is important that the child’s meaningful relationship with Mr D continue and I attach significant weight to the opinion of the Family Consultant that the child would be distressed were he to live apart from his half-brother.
The ICL seeks an order that the child’s name be placed on the Family Law Watchlist but, notwithstanding that order, the mother be allowed to travel internationally with the child. No concerns have been raised by the Family Consultant that the child might be at risk of being taken out of the country by the father and the mother does not seek an order restricting the child’s travel outside of Australia.
The previous order for the child to be placed on the Watchlist was made in 2012. None of the parties sought that the order be renewed subsequent to its expiry in February 2013.
In circumstances where the father has now disengaged from these proceedings and there are no concerns held that he may abscond with the child, an order will be made removing the child’s name from the Watchlist. An order maintaining the child’s name on the Watchlist while simultaneously allowing the mother to travel internationally with the child is not practical or enforceable in any event.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). I am satisfied that the father has engaged in family violence so the presumption does not apply.
The mother seeks an order that she be granted sole parental responsibility for the child. The ICL is supportive of such an order being made.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.
Given the father has disengaged from proceedings, the only proposal before the court is for the mother to have sole parental responsibility. In these circumstances I am easily satisfied that it would be in the child’s best interest for the mother to have sole parental responsibility for him.
Conclusion
Having regard to all of the relevant matters I am of the view that it is in the best interests of the child to spend no time with the father. However, in light of the Family Consultant’s suggestion and the nature of the relationship between the child and the father I am of the opinion that it is in the best interests of the child for the father to be able to send gifts and cards to the child and have some telephone contact with the child if the child is amenable to that occurring.
As discussed earlier in these Reasons, an order will be made that the child’s name be removed from the Family Law Watchlist. Orders will be made for the mother to have sole parental responsibility for the child which will allow the mother to travel outside Australia with the child in any event.
Accordingly, I make orders as set out in the mother’s Case Outline Document filed 19 January 2018. Those Orders are set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 April 2018.
Legal Associate:
Date: 26 April 2018
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