Parenting Proceedings Proceed As Undefended Hearing
Frederick & Frederick [2022] FedCFamC2F 367 (17 May 2022)
The parties are in dispute over parenting orders appropriate for their child. The Respondent Father has failed to appear in the hearing. The Court, in making its final orders, assessed if it is appropriate that the matter continue as an undefended hearing.
Facts:
Parenting proceedings commenced on 14 March 2019 and were fixed for a final hearing on 21 March 2022 as a result of orders made by this Court on 15 December 2021. Those orders included the Respondent Father being given an opportunity to file further affidavit evidence and a case outline on or before 25 February 2022. The Respondent Father has failed to do so and has failed to attend the hearing. Counsel for the Applicant Mother, Mr Alexander, moved for the proceedings to proceed as an undefended hearing and Mr White, of Counsel, for the Independent Children’s Lawyer (“ICL”) supported that application.
In 2013, while the parties were in Country D, the Father became drunk and agitated. The Father yelled at the Mother and her family. The Father took X from Mother and drove away with X on his lap. The Police was contacted by the Mother. The Father was found at a resort with X. The Police took the Father to the police station and X was returned to Mother.
In 2016, the parties separated. The Mother struggled to leave and free herself from the Father. The Mother was arrested for assault but the charges against the Applicant Mother were dropped and two counts of assault were advanced against the Respondent Father, as well as the making of provisional Apprehended Domestic Violence Orders (“ADVOs”), which were made final on 26 April 2016.
The Child the subject of the parenting orders (“the Child”) was born in 2013 and has lived with the Applicant Mother at all times since separation in 2016. There is an adult child of the Respondent Father who is disabled, and the Respondent Father has been looking after him with some help from the child’s mother. Between 2019 and June 2021, the Child spent time with the Respondent Father in accordance with Court orders. However, in March of 2021, the Respondent Father had a significant heart attack.
Issues:
I. Whether or not the matter should continue as an undefended hearing.
II. Whether or not the Mother should have sole responsibility over the child.
Applicable law:
Family Law Act 1975 (Cth) pt VII; s 4AB - provides that family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
Family Law Act 1975 (Cth) pt VII; s 60CA - provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Family Law Act 1975 (Cth) pt VII; s 60CC - provides that in determining the child's best interest, the Court should consider: (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.
Family Law Act 1975 (Cth) pt VII; s 61DA(1) - 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.
Family Law Act 1975 (Cth) pt VII; s 61DA(2) - provides that then 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.
Goode & Goode [2006] FamCA 1346 - relied upon in holding that the presumption of equal shared parenting has been rebutted in the present case.
Analysis:
The Court has taken into account that the matter was expressly adjourned on the last occasion in order to give the Respondent Father an opportunity to put on further evidence. The opportunities provided under the parenting orders made on 15 December 2021 for the Respondent Father to attend for certain testing have not been the subject of any steps taken by the Respondent Father to do so. The Applicant Mother identified the care she has undertaken during the relationship in relation to her daughter. In her affidavit, the Applicant Mother has also identified aggressive behaviour from the Respondent Father.
It reflects the Respondent Father having engaged in aggressive and controlling behaviour that can properly be described as family violence. The family report also identified concern in relation to the Child being exposed to the Respondent Father’s disabled son’s violent outbursts. The evidence supports that there is a risk of the Child being exposed if the Respondent Father consumes alcohol or drugs. That risk appears to be ameliorated by the confined time periods in respect of the proposed spending of meaningful time by the Child with the Respondent Father.
Conclusion:
The Court is satisfied that it is in the best interests of the Child that she live with the Applicant Mother and that she has sole parental responsibility for the Child. The Court is also satisfied that it is in the best interests of the Child that the Applicant Mother be able to take the Child overseas to Country D for holiday, to enhance the Child’s understanding of her heritage and culture. The Court ordered the hearing to proceed as an undefended hearing. On a final basis, the Court makes Orders 1 to 11 in the Further Amended Application for Final Orders filed on 1 December 2021. The Court reserves its reasons, to be published on a later occasion.