In a recently published family law case, Carden & Carden [2012] FMCAfam 1463 (17 December 2012), the Federal Magistrates Court of Australia made orders allocating sole parental responsibility to the mother and provided for no contact orders to the father.

The father did not attend court and orders were made in his absence.

There were issues relating to alcohol, mental health, family violence and the need to protect the children from physical or psychological harm.

 Family Law Background

The matter involved an application by the mother of three children.  The children were aged twelve, eleven, and eight.

The parties commenced living together in late 1998 and were married in 1999. They separated in May 2010 and were divorced on 30th August 2012.

The Mother commenced proceedings by filing an Application and affidavit in support in September 2012. The Application was first in the Court in November 2012.  At the time of the first court date, personal service had not been effected on the father.  The Court made orders dispensing with the requirement for personal service, but the court documents were to be forwarded to the father’s sister.  The matter was adjourned to December 2012.  The father did not attend court on the second occasion.  The court was satisfied with respect to service and listed the matter for an undefended hearing on 17th December 2012.

The father was advised in writing that if he did not attend Court on the next occasion then Orders may be made in his absence.  The mother with her lawyer appeared on 17^th December, but the father failed to appear.

Notwithstanding the father’s lack of appearance, the hearing proceeded under the provisions of paragraph (1)(d) of Rule 13.03C.

Undefended Hearing

The Court heard the evidence provided to the court by the mother and applied the law.  In deciding whether to make a parenting order, the Court is required by section 69CA of the Family Law Act to regard the best interests of the child or children concerned as the paramount consideration.  The Court determines what is in a child’s best interests by considering the matters set out in subsection (2) and (3) of s.60CC of the Act.

The Court is required by s.61DA of the Act to apply a presumption that it is in the best interests of the child or the children for their parents to have equal shared parental responsibility for the child or children. However, the presumption does not apply in cases of abuse or family violence (s.61DA(2)) and it may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(4)).

If the presumption of equal shared parental responsibility applies, the Court must then consider the matters in s.65DAA, whether it is both in the child’s best interests and reasonably practicable for the child to spend:

1. equal time with each parent (s.65DAA(1)); or, if the Court does not so order;

2. substantial and significant time with each parent (s.65DAA(2)).

The Federal Magistrate found that it was difficult to see that there would be any great benefit to these three children in having a meaningful relationship with their father, other than to know that he is their father. The long history of alcohol abuse and family violence, including threats directed to the children themselves, tends to suggest that the children should spend little or no time with their father unless he takes action to rehabilitate himself. The evidence is that the father is an alcoholic whose behaviour when drunk is violent, abusive and irresponsible.

The Federal Magistrate considered that the evidence was replete with examples of abuse, neglect and family violence, including violence inflicted on her and threats of violence directed to one or more of the children.

The Federal Magistrate found that the Father had not taken the opportunity to participate in making decisions about major long-term decisions in relation to the children, he has failed to fulfil his obligations to maintain them, and his capacity to provide for the needs of the children, including their emotional and intellectual needs, appears to be non-existent.

Family Law Orders

1. The Applicant Mother is to have sole parental responsibility for the children;
2. The children live with the Applicant Mother.
3. The children are to spend no time with the Respondent Father.
4. The Applicant Mother is to have the sole responsibility for giving consent and making arrangements for the issue of the children’s passports.
5. The Applicant’s solicitor must forward a sealed copy of these Orders to the Respondent by ordinary pre-paid post at his last-known address within seven (7) days.

If you would like to read this decision in full, click here.

If you require family law advice regarding parental responsibility, contact orders or any other family law matter, please contact our Family Law Accredited Specialist, Claire Naidu.  She may be contacted on enquiries@clairenaidu.com.au or by our online enquiry form for Claire Naidu & Co – click here.