FLAST CASE SUMMARY: Seidel & Dixson 2019: CHILDREN – Undefended final parenting hearing
Seidel & Dixson [2019] FamCA 25 (25 January 2019)
FACTS:
- The parents separated in June 2012 after a seven-year relationship.
- Children X age 12 and Y aged 10.
- FACS removed Child X from both parents when he was 2 months old following the father holding the baby out the window by his clothes. Child X was placed in the care of the maternal grandparents for 8 months.
- FACS returned Child X to the mother when the father was in custody.
- March 2015, the father initiated proceedings in the FCC requesting orders for the children to reside with the mother, and for both parties to have equal share parental responsibility and to also spend alternative weekends, time during school holidays, and on special occasions with the children.
- The mother sought sole parental responsibility and orders and for the children to spend no time with the father. The mother adjusted her application to include allowing her to change the children’s surnames and to travel internationally without the need for the fathers consent to obtain passports.
- The father initially had a lawyer, however the lawyer terminated acting for him in June 2015.The father has an extensive criminal history against the Mother (family violence), other intimate partners and the police (resisting arrest, assault). There are various other offences and convictions for contravening AVO’S. He was charged in mid-2006 with assault occasioning actual bodily harm, threatening to destroy or damage another person’s property and two counts of breaching an ADVO and was convicted and sentenced to a sixteen-month term of imprisonment, which was suspended.
- The father was dealt with in accordance with the Mental Health Act 2007(NSW) and then next through other mental health provisions in relation to these offences.
- The father is also convicted of having sexual intercourse with 2 minors, they both became pregnant to him- one was 13 years old. The father was sentenced to a term of imprisonment for 18 months with a non-parole period of nine months. He was later convicted in 2013 on two occasions for failing to comply with reporting obligations arising from the offences relating to sexual offending against a minor.
- In January 2015, (subpoenaed police records) state there were apprehensions held by the police and FACS regarding sexual abuse claims by the father’s partner at the time- her daughter has special needs.
- The father then failed to appear to several of the court events from October 2015 to August 2017.
- September 2015, the mother, children and father all attended on a family consultant for interviews for the Child Responsive Program.
- The Family Consultant determined, “The serious level of violence between [the parties] in the past would indicate that a positive co-parenting relationship in the future is unlikely. It could be dangerous for all involved, for there to be contact between [the father] and [the mother].”
- The father failed to attend the Family report appointment.
- February 2018, in the Family Report released in, the family consultant recommended the mother have sole parental responsibility for the children, the children live with the mother and spend no time with the father.
- The father did not to appear at the case management hearing on 20 March 2018 and the ICL informed the court that he was in custody, bail having been refused on criminal charges.
- At the undefended hearing on 21 September 2018, the mother and Independent Children’s Lawyer (“ICL”) tendered a Joint Minute of Orders.
ISSUE:
Whether the children will benefit in having meaningful relationship with their father? Is it in the children’s best interest?
HELD:
The court agrees with the family consultants proposal and orders were made for the children to live with the mother, for her to have sole parental responsibility, for the children to have no contact with the father or paternal family, additionally, orders were made restraining the father from contacting or approaching the mother, and the mother is also able to change the children’s surnames and obtain passports to leave the country without the fathers consent.
In determining the joint proposed minute of order of the mother and the ICL, the court looked to the primary considerations (under s 60CC(2)):
- The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Judge acknowledges they are required to give greater weight for the need to protect the children from harm, rather than a meaningful relationship between both parents.
The court established based on evidence provided, the father has committed serious acts of violence against the mother, other intimate partners and police.
Moreover, the court also notes these final orders are ‘extreme in nature’, however it is deemed the children will not benefit from a meaningful relationship with the father, and that the orders are essential in protecting the children from physical and psychological damage they would experience with their father.
At [67] the Judge states:
.... In my view there is an unacceptable risk that the father will continue to behave in a violent manner including perpetrating family violence and sexual abuse to which the children are likely to be exposed if they were to spend time in his care.
The father failed to continue to engage in proceedings, the court accepted this as the father consenting that he does not wish to continue a relationship with the children in the future.