Zenabi and Zoulek
[2016] FamCA 834
•21 October 2016
FAMILY COURT OF AUSTRALIA
| ZENABI & ZOULEK | [2016] FamCA 834 |
| FAMILY LAW – CHILDREN – Undefended parenting – Where the father has withdrawn his Application – Best interests of the children –Where the father has perpetrated family violence – Benefit of a meaningful relationship with each parent – Coercive and controlling conduct – Need to protect the children from harm – The mother have sole parental responsibility for the children. |
| G & C [2006] FamCA 994 | ||
| ||
| APPLICANT: | Mr Zenabi |
| RESPONDENT: | Ms Zoulek |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Assoc |
| FILE NUMBER: | PAC | 2010 | of | 2012 |
| DATE DELIVERED: | 21 October 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 3 June 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | A J & Associate Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Wilkins |
Orders
All previous orders be discharged.
The mother shall have sole parental responsibility for the children B born … 1999, C born … 2002 and D born … 2008 (“the children”).
The children shall live with the mother.
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 Zenabi & Zoulek 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 |
FILE NUMBER: PAC 2010 of 2012
| Mr Zenabi |
Applicant
And
| Ms Zoulek |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of the parties’ three children, B, who is 16, C who is 14 and D who is eight.
The parties were married in the Middle East in 1998 and separated in June 2010. The children lived with the mother and spent limited time with their father following separation.
The parents divorced in 2012 and the father has remarried
The father initiated the proceedings, seeking parenting orders, including equal shared parental responsibility and time with the children. On the day of the final hearing the father withdrew his application and it was dismissed.
The mother continues to seek parenting orders. She proposes in her response that she have sole parental responsibility for the children, that they live with her and spend four hours with the father each alternate Sunday at a public location.
The father did not file any affidavit in accordance with trial directions and the application for orders as sought by the mother was dealt with on an undefended basis with respect to the father. The mother’s affidavit contains many allegations about the father’s conduct which is uncorroborated.
The question for me to determine is whether I am able on the available evidence to make any finding about the best interests of the children and in particular about whether the orders proposed by the mother are in the best interests of children.
Background
The father, who is 52 and the mother who is 40 were born in the Middle East. They married in 1998, and their first child, a daughter named B was born in 1999. In April 2002 the parties immigrated to Australia. Their second daughter C was born in 2002.
On various occasions throughout the marriage police were involved in disputes between the parents and on some occasions the father was charged by police. On numerous occasions the mother and children moved to a refuge. These occasions include September 2003, April 2004, December 2006 and sometime in 2007. It appears that the parties reconciled from time to time and the mother returned with the children to the family home until she alleges she was assaulted and left the home again.
From time to time the police also sought Apprehended Domestic Violence Orders (ADVO)s for the protection of the mother against the father.
Following a separation in 2007, the father commenced family law proceedings for parenting orders but the parties subsequently reconciled.
The parties’ third child, a son named D was born in 2008.
The father was arrested following a domestic violence incident in September 2008.
From around September 2009, the mother made allegations to police that the father was also violent towards the children. On September 2009 she alleged that the father hit the children on the bottom with a shoe, and in May 2010 alleged that he hit B across the face.
The final incident between the parties occurred in June 2010. The mother and children again went to a refuge and approximately one week later the parties separated for the final time. The children remained living with their mother.
In 2011, the father met his new partner, Ms E who is of European heritage.
The mother experienced some difficulties in the management of B in 2011 and services were provided through the Brighter Futures program to assist with this issue.
In August 2012, the parties divorced.
In 2014 the father married his partner Ms E. They live together in a two bedroom apartment that they share with another person. The children have only met Ms E on a couple of occasions.
In March 2014 the father commenced parenting proceedings which were subsequently withdrawn at the final hearing in June 2016.
On 21 July 2014 interim orders were made with the consent of the parties that the parents have equal shared parental responsibility for the children, that they live with the mother and spend time with the father for two hours each Friday and four hours each Sunday.
The father’s time with the children has not occurred in accordance with the orders and appears to have occurred on an ad hoc basis.
On 25 August 2015 a Family Report was prepared following assessment and observation of the family in previous months.
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 considerations and additional considerations 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 children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children 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[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3]. 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”.
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
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 Full Court in McCall & Clark (supra) 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 mother proposes that the children live with her and spend time with their father each alternate Sunday from 10am to 2pm. The father’s proposal at the time of the final hearing was unknown, though he has consistently stated that he wishes to play a role in his children’s life and have some relationship with them of significance.
While the time the mother proposes that the father spend with the children is very limited, it is with reasonable regularity. It seems implicit in her position that she recognises that there will be a benefit to the children in having a relationship with their father.
Each of the children told the Family Consultant that despite their complaints about their father they wished to have some relationship with him. Similarly, although the mother made many allegations about the father’s conduct to the Family Consultant and although her position with respect to the father’s time with the children has changed over time, she did concede to the Family Consultant that the children could have “contact” with their father. She also maintained that the father should play some role in the children’s life though it appeared that she could only nominate this role should be one of financial support and a general statement that the children could see him.
I am unable in these circumstances to make a positive finding that there is no benefit to the children in having a meaningful relationship with their father. However, I am concerned that given the father’s history of non–compliance with court orders and attitude toward them, the children’s relationship with their father will not necessarily be fostered by making the orders sought by the mother.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
There is insufficient evidence from which I could make a finding that the children have been neglected or abused in the care of either parent having regard to the definition of abuse in the Act, [4] or that there is any risk that this would occur in the mother’s household. The one instance of alleged abuse of B by the father (the incident in which B is said to have broken her tooth) is vague and unclear in the mother’s affidavit and there is no other evidence from which I could make any findings.
[4] s 4 of the Family Law Act 1975 (Cth),
So far as neglect is concerned, according to the Magellan Report in 2003 after the mother was assaulted by the father, there was no bedding in the home for the mother and children. There are no other allegations of neglect.
Both parents allege that the other parent was a perpetrator of family violence in the household during the relationship. On numerous documented occasions, the mother and children left the family home and lived for some time in a refuge and on some occasions the father was charged and ADVOs were ordered against him for the protection of the mother.
The Magellan Report also records that many complaints have been made between May 2003 to October 2009 that the children were exposed to violence in their home. None of these allegations were investigated by Community Services except for an occasion in October 2009 where it was found that the children were in need of care and protection as they had been exposed to family violence. The majority of these complaints to Community Services allege violence perpetrated by the father against the mother and record that on occasions the father was arrested and charged with assault on the mother and AVO’s were issued. There is also a vague and general allegation of mistreatment of the children by the mother in March 2007 and an allegation in September 2009 that the father physically disciplined the children by hitting them with a shoe on their bottoms.
The Magellan Report also sets out allegations of concerns about alleged emotional abuse by the father during the time he spent with the children in August 2014. It is alleged that the father threatened to physically harm B and was denigrating her and that he grabbed D firmly by his arm as D did not want to see his father. This matter was also not investigated by Community Services as the Department was of the view that was not required.
The mother makes broad statements about the father’s alleged violence and also provides specific details of an incident when she was “bashed up” and “punched in the face causing bruising, which resulted in an ADVO for 12 months against the father for the mother’s protection. The mother says in her affidavit that in 2007 the father “really seriously bashed” her by punching her leaving bruises all over her body and says that on other unspecified occasions the father choked her and hit her in the ear causing pain. The mother also says the father “beat [her] in the face and all over [her] body” when she was pregnant with D. Unfortunately, records that were produced under subpoena and were available to the Family Consultant from Community Service, NSW Police and other agencies were not tendered in the proceedings.
The Family Consultant noted that the records produced on subpoena from Community Services indicate that the finding that the children were in need of care and protection was made in September 2009 on the basis that domestic violence perpetrated on the mother by the father was likely to continue and that the mother was likely to change her mind and return to the father. In these circumstances the children were likely to be exposed to domestic violence and harmed as a result.
The Family Consultant noted that the documents produced on subpoena by Community Services and NSW Police included multiple allegations of the father being the perpetrator of violence toward the mother and on one occasion perpetrated violence against B. The Family Consultant says that there were also allegations of the mother perpetrating violence towards the father and B, charges being laid and ADVOs being sought for the protection of [unspecified family members] against the mother.
When interviewed by the Family Consultant the father denied that he was a “violent person” or that he had instigated any physical violence and alleged that he was the victim of violence perpetrated by the mother and said that he would only ever “hit back”. The family report records that the father “conceded that he “probably might have kicked [the mother] as she did him” and conceded hitting his wife Ms E but described it as “not a serious slap, not an argument type of slap”.
The father also told the Family Consultant about attitudes that in my view could support a finding of the father’s coercive and controlling conduct. He told the Family Consultant that although he and the mother were legally divorced, they had not been divorced within the Islamic religion. He said it was “his right to give a divorce” and he was “not going to give it to her” adding “she can live like that forever”.
When assessed by the Family Consultant the mother maintained that she and the children were “beaten” by the father when living together as a family. The Family Consultant said that a perusal of the affidavit filed earlier in the proceedings by the mother, and documents produced on subpoena by police and Community Services “all suggest [the mother] had been subjected to violence and isolation since approximately 2003”. The mother told the Family Consultant that she does not communicate with the father because his threats and abuse cause her to feel unsafe. The mother also alleged to the Family Consultant that from 2003 the father would leave her alone and not give her any financial support.
According to the Family Report, when the Family Consultant asked the mother about her proposed orders, the mother did not refer to her concerns about the children having been exposed to family violence in the past and concerns about this occurring in the father’s household in the future. The Family Consultant said [at paragraph 59]
[the mother] elected to remain silent on the issue of who the children should live with, though she said that she did not think [the father] was responsible enough, if the court decided that the children would live with him in any sought (sic) of live with arrangement. [the mother] said while it was good for the children to “see their father” she said it raised stress for her as “the father does not follow” the orders…
60.[the mother]’s rational as to why her proposal was in the children’s best interest, initially focused on her needs to remain stress free, and that she and the children had experienced physical violence perpetrated by [the father]. When she was refocused to address why it was in the each child’s interest [the mother] said it was because she was the one “who has provided all the day to day care; the one attending to their needs; [she] did not work outside of the home; [that the father] is now remarried with someone from another background”; and she was “not having fun, and had sacrificed” for the children
In other words, while the mother had raised concern about the father’s violence in the past, it was not suggested to the Family Consultant that there was an unacceptable risk of harm to the children in the future due to exposure to family violence in the care of the father. The mother’s proposal was also not based on this contention in the final proceedings.
When interviewed by the Family Consultant, the father’s wife Ms E denied that there was any physical violence in her relationship with the father. She told the Family Consultant however, that on one occasion the father prevented her from leaving their home when she went to leave “out of kindness” because “it was dangerous” for her to leave at the time she wanted.
When assessed by the Family Consultant B who was almost 16 said that she could remember that when the family lived together, her parents fought, shoved each other and she had seen bruising on her mother’s chest. B also reported that when her father becomes angry he insults and denigrates the children or the mother and that she and her siblings would defend the mother which would lead to an argument.
C who was 13 when interviewed told the Family Consultant that her parents fought all the time and did not talk but screamed. She spoke of her father hurting her mother.
C reported to the Family Consultant that her father yells at B when spending time together and that he “gets mad and shouts at us if we say something wrong”.
D who was seven when interviewed could not remember when his father and mother lived together. D reported that his father says mean things about his mother and that he wished his parents would stop fighting.
Although there is no independent corroboration of the mother’s account of the family violence, I am satisfied that the father has been the perpetrator of family violence throughout the parents’ relationship to which the children have been exposed. There is no dispute that the father has been charged by police on occasions for assaulting the mother (though the outcome of those charges is unknown), and that AVOs have issued for the protection of the mother against the father on more than one occasion. Further, on the one occasion that Community Services investigated the allegations of family violence, Departmental officers were satisfied that the children were exposed to family violence in their home perpetrated by the father against the mother and that the mother was failing to protect the children from it as she continued to return to the family home. There appears to be no dispute that on a number of occasions the mother moved with her children to a refuge. Each of the children also told the Family Consultant about fights between their parents and both girls alleged that the father hit their mother. Further, the father conceded to the Family Consultant that he had kicked the mother though he claimed that this was in response to the mother initiating violence.
I am also satisfied that the mother has on occasions used some level of violence in the household. I accept with the conclusion of the Family Consultant that “the children appear to have grown up in a household where there was violence, and appear to continue to be exposed conflict (sic) by both their parents.”
In my view, there appears to be a risk that the children will continue to be exposed to at least a high level of conflict between their parents if the parents are required to come into contact with one another.
The mother’s proposed orders that the father spend time with the children each alternate Sunday for four hours in a public place, but do not provide for any mechanism for changeover from the care of one parent to another. The orders also require that if the father “cannot” comply with these orders that he is to notify the mother seven days prior to spending time with the children.
So far as changeover is concerned, D is only eight years old and the mother proposes that the father only spend time with him when also spending time with the older girls. There is no dispute that in the past the father was on occasions unreliable and did not spend time with the children under the orders and expressed that the children, rather than himself should be “flexible”, in these circumstances. The parents also both seem to have required B’s assistance in managing their own conflict associated with the father’s time with their children and B seems to have accepted this role. The two younger children complain about their father yelling at B and D reported to the Family Consultant “he shouts at my sisters and one time hit [B]”.
In these circumstances and when the father has withdrawn his application and can be taken to be no longer pursuing a relationship with his children, I am of the view that there is an unacceptable risk that the children will be exposed to ongoing conflict between their parents if I make the orders as sought by the mother in relation to the father’s time with them.
While I am unable to make a positive finding that there is an unacceptable risk that the children will be caused to suffer psychological harm from being exposed to family violence if they spend any time with their father, there is no alternative proposal as to the father’s time and the mother’s orders do not provide any or sufficient safeguards to minimise the risk.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations 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 children and factors underlying those views
Each of the children expressed the view that they did not wish to spend any more time with their father than they were spending with him at the time of the assessment and in particular did not want overnight time.
Although B had unhappy memories of the family living together especially in relation to the level of conflict to which she was exposed, she still had positive things to say about both parents.
At the time of the assessment B described her father as “nice most of the time” and said when he was nice “he jokes around and stuff and takes us to interesting places and buys stuff”. She did not like it when he became angry and shouted at her and her siblings and denigrated her mother. When assessed B said that she had been spending time with her father mostly on Sundays from 10am to 2pm (as proposed by the mother in the future) and told the Family Consultant she would prefer to spend time with her father on Fridays and not the Sunday. B was adamant that she did not want to spend over night with her father and did not want her younger siblings to spend time with him without her as she said she would “worry for them”. She said that spending time with her father was “comfortable the way it is”.
C also referred to her parents fighting all the time when the family were together and police being called to the home, though she could remember occasions where there was no fighting.
C said some positive things about her father that he “is fun to be around, sometimes”. C also complained that when her father became angry he yells, especially at B and also said that she did not like the fact that her father did not follow the schedule for time with the children set out in the orders. She said there were “some weeks he would not come and send a message; and that on Fridays he does not come very often”. C was also clear that she did not want to spend overnight time with her father.
Given the age of B and C and their exposure to conflict between their parents and involvement in the parental dispute, I am of the view that significant weight should be given to their views. Both children wish to continue to live with their mother and would like spend some time with their father which does not include overnight time or amount to much of an increase in the current level. Both appeared to want a set regime and for their father to reliably comply with that regime. B would prefer to spend time with her father on a Friday than a Sunday.
D who was seven when interviewed found difficulty finding anything positive to say about his father. He said that he did not see his father frequently and told the Family Consultant that when he is with his father, his sisters are responsible for making sure he did not get hurt. He also told the Family Consultant that he did not want to see his father anymore as his father “says mean things about mum”. I attach some weight given D’s age to his view that he feels that his sisters make him feel safe when in his father’s care.
Nature of the children’s relationship with each parent and other significant persons
Each of the children appear to have a secure attachment relationship with their mother who has been their primary carer throughout their lives. Their relationship with her may however have been affected by the ongoing exposure to family violence throughout their lives and there are indications that the mother has had difficulties in her relationship with B.
The nature of the children’s relationship with their father is strained. The Family Consultant said that “the children also appear to be offended by comments their father has made about their mother, which appears to have strengthened the children’s alignment with their mother”.
None of the children have a relationship with the father’s wife and none of them even spoke of her as being their father’s wife. None of the children want to form a relationship with her. The mother’s proposed orders for the father’s time with the children include an order that the father shall ensure that no other person is present during that time. It will not be possible under the mother’s proposed orders for the children to develop a relationship with their father’s wife.
Nothing is known of any of the other children’s relationships.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Although it is not entirely clear, it appears that the mother has made all of the significant decisions for the children following separation. She seeks for this arrangement to continue, in that she seeks sole parental responsibility for the children in her proposed orders.
While the father has previously sought equal shared parental responsibility for the children, he can be taken as no longer wanting the opportunity to participate in long term decision making by withdrawing his application for parenting orders.
Following separation, the father has sought to spend time with and communicated with the children following the regime under court orders to some extent. However, he has made it clear through his actions that he should not be bound by the orders of the court with respect to his time with the children. After the orders were made in July 2014, the father inconsistently complied with them though he did spend some regular time with the children. Despite the poor capacity for communication and joint decision making and ongoing conflict between the parties, it appears that the father did negotiate from time to time alternative arrangements with the mother with respect to his time with the children. It also appears that the mother anticipates that this will occur in the future as she seeks an order about the father’s notification to her in the event that he “cannot comply” with the orders for his time.
So far as past compliance with court orders is concerned, the father told the Family Consultant that he had not always been able to collect the children on the days ordered or that it was “not worth it”. He also told the Family Consultant that the children who “are sitting at home”…. “should be flexible” and questioned why he should be flexible. He told the Family Consultant that he did not accept that it was the role of the parent to be flexible for the children. He also told the Family Consultant that he “was over” the then current orders and if his time with the children were to remain the same he “would be cutting it off”.
The father can be taken, in withdrawing his application to have abandoned an interest with spending time with the children. He has also indicated through his remarks to the Family Consultant that he will not be complying with a regime for time similar to that which existed at the time of the assessment. In my view this is a particularly important consideration in this matter. I do not have any confidence in these circumstances that the father will comply with the orders proposed by the mother which are similar to the regime in place at the time of the assessment.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
There is no clear evidence concerning this issue.
The mother’s statements to the Family Consultant that the only role the father should play in the children’s lives is to provide financial support for them seems to suggest that the father is currently not financially supporting the children.
The father told the Family Consultant that B only wanted to see him for money though he also suggested to the Family Consultant that he was the “sole provider for the family”.
Likely effect of change in the children’s circumstances
The orders proposed by the mother would bring about little change in the children’s circumstances. They would continue to live with the mother. In all likelihood, even if orders were made for defined time with the father as proposed by the mother, he is likely to exercise this time on an irregular or ad hoc basis. This is not a case where, in my view, given the history of the matter defined orders will make any difference to this pattern of the father spending time with the children. Defined orders have been in place in the past and these have not been complied with, and the mother even anticipates in her proposed orders that the father will not comply with them in the future.
If no orders are made for the father’s time and the mother has sole parental responsibility for the children, it will be up to her to negotiate with the father over the children’s time which has effectively occurred in the past. The risk of harm associated with the children’s exposure to parental conflict will occur regardless of whether the court makes orders for defined time for the father.
Practical difficulty or expense involved in spending time with and communicating with the other parent
One practical difficulty that arises is that the mother claims that due to a cultural practice, it is inappropriate for her to contact the father since her divorce. This has meant on a practical level that B has been used by both parties as an intermediary. This is not only in my view unreasonable, but unsustainable in the future. B will turn 18 in twelve months’ time and may not continue to spend time with her father in accordance with the orders. Arrangements will need to be made for D at least for many years and even on the mother’s proposal she anticipates receiving some level of contact from the father in relation to the arrangements. While there should be no practical difficulty with the reasonably simple and limited time with the father as proposed by the mother, the past history of the matter indicates that it has been fraught with a number of practical difficulties.
Capacity of each parent to provide for the children’s needs
The mother has been the primary carer for the children and has met their essential day to day needs. It would appear that she has provided an appropriate level of food and shelter and ensured that the children have attended school regularly, where they appear to be progressing satisfactorily. The mother has received virtually no assistance from the father.
Complaints made to the (“Community Services”) referred to in the Magellan Report indicate that on occasions the mother has appeared to be isolated and had limited support and that the mother and children have been at risk of homelessness. There is also no dispute that at some stage the family were referred to the “Brighter Futures” program. However, the Magellan Report does not set out the reason for this referral nor why the outcome of “case plan goal achieved” was made in April 2013. It seems from the report that while the behaviour management difficulties the mother had with B in October 2012 were dealt with under the “Brighter Futures” intervention this was not the initial reason for the involvement of that service.
Although the father claimed to have superior capacity to meet the children’s needs to the Family Consultant, this has not been demonstrated.
Both parents show shortcomings in their capacity to shield the children from their ongoing conflict.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Both parents are of Muslim heritage and the children have been raised within this tradition. The children will continue to receive the benefits of their culture and traditions within the mother’s household.
There is some dispute between the parents in relation to cultural traditions which has not been clarified and I am unable to make any findings in this regard.
While it appears that each parent maintains that their culture and traditions are important to them, it is curious to note that the father has married a much younger woman of European heritage who is not a Muslim. Each of the children seem to be aware of these characteristics of their father’s wife and express no interest in getting to know her.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Each of the parents clearly loves their children and was able to identify positive characteristics about them to the Family Consultant.
In my view, the mother has shown a much greater degree of responsibility towards the children, in particular taking on the entire responsibility for their care following separation.
The father seemed to the Family Consultant to be irritated at the suggestion that he should be financially responsible for the children. He also has demonstrated in my view a particularly irresponsible attitude towards the children in not only failing to comply consistently with the previous orders made with respect to his time but in withdrawing his application on the date the matter was fixed for final hearing.
Family violence
This matter has been dealt with when considering the need to protect the children from harm.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In circumstances where the father has withdrawn his application for parenting orders, it is unlikely that he will institute further proceedings in relation to the children.
The father’s application for orders that the children live with him at all times seemed half hearted and clearly impracticable. The father lived with a new wife who had no relationship with the children in a two bedroom apartment which they shared with another person. He did not at any stage have any plan as to how this parenting arrangement or any arrangement in which the children would live with him would operate at a practical level. It is not likely that he will seek orders that the children live with him in the future.
The father’s motivation for seeking an order in relation to equal shared parental responsibility is unclear but seemed to be based on his perception of his superior parenting capacity.
While it may be assumed that the mother’s attempt to have some certainty in relation to the father’s time with the children may reduce the likelihood of further proceedings, I am of the view that the orders she proposes will not lead to this occurring. The father has previously indicated his weariness with the idea that he should comply with court orders, telling the Family Consultant that he is “over it” and regularly being non–compliant in any event. As he has withdrawn his application for orders, in my view, there will be little practical difference between making the orders sought by the mother as to the father’s time and making no order.
There is a small risk that if orders are made as the mother seeks, the father will seek to enforce them through contravention proceedings. The risk will not exist if no orders are made for the father’s time.
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.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
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)).
As there are reasonable grounds to believe that the father has engaged in family violence, the presumption does not apply.
In this matter, the mother seeks sole parental responsibility and the father has withdrawn his parenting application. 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 the father would have none of the duties, powers, responsibilities and authority with respect to the child.
The only proposal before the court is for the mother to continue to have the care of the children and for them to live with her. In circumstances where she has effectively held parental responsibility for many years since separation and the father can be taken to have abandoned his application, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Conclusion
I have not found that there is no benefit to the children in having a meaningful relationship with their father. The children themselves seem to seek some sort of relationship with their father and even the mother through her proposed orders acknowledges that there would be a benefit to the children in spending limited time with him. However, the father has put no evidence before the court, withdrew his application for parenting orders and pursued no proposal to the court about the children’s time with him.
In these circumstances while it may be tempting simply to make the order concerning the father’s time as sought by the mother, I have no confidence that the father would spend time with the children in accordance with these orders.
Having regard to the father’s lack of participation in these proceedings, his remarks to the Family Consultant about his attitude towards orders with respect to his time in the past and his pattern of attending, it is likely that the father will spend time with the children when he wishes to do so regardless of any orders that are made. This is likely in my view, to lead to further conflict between the parents, the involvement of the children in the parental conflict and the children suffering emotional and psychological harm associated with that conflict.
These risks are not of such a magnitude in my view that it is in the children’s best interest to make an order that the father spend no time with the children. However, in the absence of any concrete proposal that is in the best interest of the children, in my view, it is appropriate to make no order with respect to the father’s time with the children.
Having regard to all of the considerations referred to above, I am of the view that it is in best interests of the children to make orders that the mother have sole parental responsibility for them and that they live with the mother.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 October 2016.
Associate:
Date: 21 October 2016
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Family Law
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