Father Opposes Sole Parental Responsibility Sought by the Mother
Hambleton & Pryce [2021] FedCFamC2F 127 (6 October 2021)
The parties are in dispute over the best interests of 11 and 4 year old children where both parents having significant past use of drugs and alcohol. The mother claims that the father violently assaulted the mother in January 2017 in the presence of the child. On the other hand, the father seeks that there be orders for therapeutic counselling to enable him to re-establish a relationship with X, whom he has not seen since 2017. The Court, in making orders, assessed the father's extensive criminal history, lack of insight, and classification by FNSA as high risk.
Facts:
The parties commenced their relationship in 2003 and were together until December 2014. X was born in 2010. In December 2014, the mother left the relationship and left X with the father. X remained in the father’s primary care until 2017, when the parties finally separated, having reconciled in 2016. Following an incident in January 2017 where the father violently assaulted the mother in the presence of X, the father was arrested and jailed for 10 months. He has not seen X since.
The mother was pregnant with Y at the time that the father was removed. Y, as indicated, was born 2017. The father has never seen Y, given that he was arrested in 2017. In his originating application filed 8 November 2018, the father sought an order for joint parental responsibility and a final order that X live with him, albeit that the interim orders sought that she live with the mother. The father deposed to the relationship and the fact that he had not seen X for four years. He deposed to having met the mother through the Motorcycle Gang and deposed that the mother was using ice and misusing alcohol.
He claims that the mother left him to return to her alleged boyfriend, the president of the Motorcycle Gang branch who assaulted the mother. The mother’s first affidavit, relevantly deposed to the father keeping X from her between December 2014 and January 2016, when they recommenced cohabitation. She deposed to the father threatening her with a knife and cutting her dress and assaulting her with a metal baton. She was deposed to incidents of violence committed by the father going back to 2006.
She denied going out with the president of the Motorcycle Gang and said that she met the father through a mutual friend at the club but that the mutual friend was not a member. She deposed that the father had failed to enrol with the contact centre that was ordered on 11 June 2019. The father blames allegedly incompetent prior lawyers for many of his difficulties of compliance. He asserts that he wishes to re-establish his relationship with X before making any endeavours to get to know Y.
The father seeks orders for therapeutic counselling to enable him to re-establish a relationship with X, whom he has not seen since 2017. The mother, whose position is fully supported by the Independent Children’s Lawyer, seeks that there be orders for the father to spend no time whatever with the child and certain ancillary orders designed to assist X and the mother with the difficulties that they confront. The applicant father does not seek any orders at all in respect of Y.
Issue:
Whether or not the mother should have sole parental responsibility over the children.
Applicable law:
Family Law Act 1975 (Cth) s 61C(1)- provides that unless the Court makes an order changing the statutory conferral of joint parental responsibility, until a child turns 18, each of the child’s parents has parental responsibility for the child.
Goode & Goode [2006] FamCA 1346 - where it was held that the making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.
Analysis:
While Mr Hambleton reported love for X, his insight into past and current circumstances involving X were observed to be lacking. He reported that X was a "perfect child" and "never cried" (an unlikely scenario). He was unable to weigh up the possibility that X may present with different feelings and reactions (e.g., feeling unsure) on seeing him after no contact for 4 years. The Family’s Strengths and Needs Assessment tool (FSNA) was applied and the mother was assessed as low-risk.
She exhibits symptoms of trauma including elevated fear and hypervigilance though her distress is proportional to the level of risk Mr Hambleton likely poses, based on his criminal history. Based on the balance of strengths and needs on the FSNA, the likelihood that Mr Hambleton’s children will be exposed to neglect or abuse in his care was rated as high. Parenting needs on the FSNA include: the problematic relationship with Ms Pryce and other family members, limited social support, alcohol misuse, lack of engagement with professional services unless required, hostile communication/interpersonal skills, current living arrangements, and his own experience of living in out of home care as a child.
Conclusion:
The Court ordered for the mother to have sole parental responsibility for the children. The children are to live with the mother. The father is to spend no time with the children. The mother is authorised and permitted to apply for and receive an Australian passport for the children X born 2010 and Y born 2017 without first obtaining the written consent of the other parent. The children X born 2010 and Y born 2017 are permitted to depart the Commonwealth of Australia. The father is restrained from: (a) Contacting the children’s school or obtaining information from the children’s school about the children; (b) Going to, or remaining within, 200 metres of the children’s schools; (c) Going to, or remaining within 200 metres of children’s/ the mother’s residence or workplace. The mother is permitted to provide a copy of these orders to any government or non-government agency. The mother is restrained by injunction from knowingly exposing the children to any motorcycle organisation members or taking them to any premises operated by same.