Mother Seeks Sole Parental Responsibility Against Father
Sachar & Kalita (No 2) [2021] FCCA 1468 (2 July 2021)
Parenting proceedings over W, X, Y, and Z were put on so much delay because of the father's continuous failure to cooperate despite being on notice that the matter may proceed on an undefended basis if he did not file his submissions. The Father sought for sole parental responsibility as well as injunction restraining the Mother.
Facts:
On 11 March 2020, the parenting matter involving children W, X, Y and Z, was listed for a three day hearing to commence on 6 October. Property matters which also involve the Father’s brother and a property in Melbourne, have been transferred to the Family Court of Australia. Due to the father's unresponsiveness to the most strange-forward questions in the proceedings, the Mother's Counsel applied for the matter to proceed undefended in the parenting proceedings. The Father was required to file written submissions by 26th February 2021. He has never filed submissions as directed. To date, he has still filed no submissions at all. Almost every action taken by the self-represented Father, notably and especially during the hearing, has resulted in ongoing delay.
The Mother expresses very strongly her wish to have no contact with the Father because of his traumatizing conduct and the litigation that seems to be never-ending because of his attempts to delay. The Father seeks sole parental responsibility for all four children and that all four children live with him while the Mother has no contact with him or the four children, being restrained by injunction from contacting, attempting to contact, locating or attempting to locate him or the children or any of his family members or friends. The Mother seeks that all previous orders be discharged, that she has sole parental responsibility for the children who shall live with her. She further seeks an injunction issued restraining the Father from contacting, attempting to contact, locating or attempting to locate or otherwise approach the Mother or any of the children.
Issue:
Whether or not it is in the best interests of the children to grant the mother sole parental responsibility.
Applicable law:
Family Law Act 1975 (Cth), s 69ZW - provides for what may be considered as evidence relating to child abuse or family violence.
Analysis:
The information and comments from the Family Report (Exhibit B) are considered together with the history of reporting and comments, for example, from Care and Protection authorities in Victoria. Conversely, there was nothing in the Father’s (oral or other quite limited) evidence that warranted or supported any of the Orders he sought. Evidence of the father being abusive during telecommunication which was affirmed by one of the children, causing distress to everyone for refusing to get out of the car when supposedly had to meet up with the children, and history of violence were shown.
The Independent Children's Lawyer supports the submissions of the Mother as being in the children’s best interests in all of the circumstances. An order for the children to still maintain a relationship with the father may be more damaging than meaningful.
Conclusion:
The Court ordered that all previous orders should be discharged. The Mother is declared to have the sole parental responsibility for the children. The Children are ordered to live with the mother. An injunction should issue restraining the Father from contacting, attempting to contact, locating or attempting to locate or otherwise approach the Mother or any of the children. The Mother is authorized to obtain passports for the children without the written consent of the Father; and to travel internationally with each of or all of the children.