FAMILY COURT OF AUSTRALIA

RADHAR & EJ-MAHMAT	[2009] FamCA 1165	

FAMILY LAW – CHILDREN - With whom a child lives - Father failed to appear at the hearing and file any Response to the mother’s Application for parenting orders - Orders made for the child to live with the mother and for the mother to have sole parental responsibility for the child	

Family Law Act 1975 (Cth)	

APPLICANT:	Ms Radhar	

RESPONDENT:	Mr Ej-Mahmat	

Independent children’s lawyer:	Ms O'Donnell, 
Legal Aid NSW	

FILE NUMBER:	PAC	2542		of	2008	

DATE DELIVERED:	23 November 2009	

PLACE DELIVERED:	Parramatta	

PLACE HEARD:	Parramatta	

JUDGMENT OF:	Justice Austin	

HEARING DATE:	23 November 2009	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not Applicable	

SOLICITOR FOR THE APPLICANT:	Mr Younan, 
Equity Lawyers	

COUNSEL FOR THE RESPONDENT:	Not Applicable	

SOLICiTOR FOR THE RESPONDENT:	Not Applicable	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not Applicable	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms O'Donnell, Legal Aid NSW	

Orders
1.	The mother shall have sole parental responsibility for the child A, born … July 2003 (‘the child”).
2.	The child shall live with the mother.
3.	Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
4.	The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
5.	All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.
6.	Any and all outstanding applications are dismissed.

NOTATIONS
A.	No orders are made as to the time that the child will spend with the father or as to the manner in which the child shall communicate with the father because the father has failed to participate in the proceedings and adduce evidence relevant to those issues.  The father will be at liberty to approach the Court with an application seeking orders in respect of the time that the child spends with him or the manner in which the child communicates with him in the event that the parties are unable to reach amicable agreement about those issues.
B.	By informal agreement, the child has recently been spending time with the father on Saturdays of each week.  It is noted that neither that arrangement, nor these orders, is inconsistent with the Apprehended Violence Order made on 14 February 2008 and varied on 9 April 2008 at the Local Court with respect to the parties and the child.

IT IS NOTED that publication of this judgment under the pseudonym Radhar & Ej-Mahmat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
Family Court of Australia at Parramatta	

FILE NUMBER: PAC 2542 of 2008

MS RADHAR 	
Applicant

And

MR EJ-MAHMAT 	
Respondent

EX TEMPORE

REASONS FOR JUDGMENT
1.	These proceedings concern the parenting orders that should be made in respect of the child A, born in July 2003 (“the child”).  The child is presently aged six years.  The child is the biological child of the applicant mother, Ms Radhar, and the respondent father, Mr Ej-Mahmat.
2.	These proceedings were commenced by the applicant mother when she filed an Application for Final Orders on 30 May 2008.  That followed upon the separation of the parties on or about 13 January 2008.
3.	Although the proceedings have now been on foot for some 18 months, the respondent father is yet to file a Response.  Presently, the Court is completely ignorant of the parenting regime proposed by the father for the child.
4.	In January 2009, the Family Consultant, Ms C, conferred with the parties and the child.  Arising out of those consultations was a Child Responsive Program Memorandum dated 15 January 2009.  That document was tendered in evidence by the mother and now comprises Exhibit M1.  The contents of that report were elaborated in oral evidence today by Ms C.
5.	The matter was listed for less adversarial trial before me today but there has been no appearance by the father.  He was called repeatedly outside the Court following the calling of the matter at 2:15 pm but he has not appeared.  
6.	I draw the inference that the respondent father has deliberately chosen not to participate any further in these proceedings.  That inference is gleaned from several facts.
7.	Firstly, the father has never filed a Response in answer to the mother’s Application.
8.	Secondly, when he was consulted by Ms C in January 2009 the father indicated to the Family Consultant in respect of the child that he wanted “nothing less than half and half” as he was “as good a parent as the mother”.
9.	Until only two months ago, the child was having no time with the father.  Nothing had been done by the father to secure any interim orders providing for the child to spend time with him.  Indeed, when it was expected that the child would be able to spend time with the father at the time of the consultations with the Family Consultant, the father declined to even acknowledge the child. That was ostensibly because the father wished to have nothing less than “half and half” and his demands were not being met.
10.	Thirdly, the father has been represented by a succession of solicitors in these proceedings.  
11.	A Notice of Address for Service was filed on behalf of the father on 9 October 2008, notifying the Court and the other parties that John Spence & Associates Solicitors represented the father.  On 22 January 2009, a further Notice of Address for Service was filed indicating that Saba El-Hanania, Solicitor, was thereafter acting on behalf of the father, even though the former solicitors, John Spence & Associates Solicitors, had not filed a Notice of Ceasing to Act.
12.	On 25 June 2009, Saba El-Hanania, Solicitor, filed a Notice of Ceasing to Act on behalf of the father.  Shortly following that, on 13 July 2009, a further Notice of Address for Service was filed on behalf of the father by John Spence & Associates Solicitors, being the solicitors who had first acted for him.  
13.	I am informed by the lawyers at the bar table that a solicitor from John Spence & Associates Solicitors has in recent times appeared before the Court on behalf of the father. But there is no appearance today by either the father, a solicitor from John Spence & Associates Solicitors or, for that matter, any other legal practitioner.
14.	Although John Spence & Associates Solicitors remain formally on the record as the lawyers representing the father, no person from that firm has favoured the Court with his or her appearance today.
15.	In the absence of the father, the mother has requested the Court to proceed and determine her Application pursuant to Rule 16.07(2) of the Family Law Rules.  The Independent Children’s Lawyer did not oppose that application.  The application to proceed in that manner was granted and the mother adduced some oral evidence in support of her Application.
16.	In the Application that was filed by the mother on 30 May 2008, she effectively sought two parenting orders, namely:
a)	That the child live with her; and
b)	That she have sole parental responsibility for the child.
17.	The Independent Children’s Lawyer is supportive of the mother’s application that the child live with her.  
18.	The Independent Children’s Lawyer does not oppose the mother’s application that she be allocated sole parental responsibility in respect of the child, but the Independent Children’s Lawyer stops short of affording that application active consent.
19.	Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order”.
20.	When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.
21.	When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.
22.	The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child. That parental responsibility pertains to the major long-term issues concerning the child, being matters such as education, religion, culture, health, name, and living arrangements. 
23.	However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.
24.	In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents.
25.	If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
26.	I turn to consider the matters set out within s 60CC of the Act, which dictate what is in the child’s best interests.  I mention only those matters referred to in s 60CC which are the subject of evidence that has been given by both the Family Consultant and the mother.
27.	There is a clear need to protect the child from physical or psychological harm as consequence of being subjected or exposed to abuse or family violence.  The evidence satisfies me that in the past the father has been the perpetrator of family violence and that he has been both physically and emotionally abusive towards the child.
28.	The mother has given evidence as to the manner in which she was physically assaulted by the father approximately 18 months ago at the funeral of the mother’s own father.  She has also given evidence as to how the child was assaulted by the father during the same incident.
29.	Each of them were injured in the form of bruising, and the mother was frightened by the manner in which the father acted on that occasion.  It was the catalyst for her to approach the Local Court to obtain an Apprehended Violence Order (“AVO”) against the father.  That AVO remains in existence and the evidence is that it will remain current until January 2010.
30.	The Independent Children’s Lawyer asked questions of the mother about her intentions with respect to the AVO and I am satisfied that, although the mother does not intend to extend the AVO once it expires in January 2010, she will not hesitate to obtain a further AVO should the need arise.
31.	I am disturbed by the evidence elicited through the Family Consultant to the effect that she was witness to the father’s ignorance of the child in January 2009, when it was plain that the child was thirsting positive interaction with his father.
32.	I am satisfied that the father ignored the child simply because the father perceived that he was not getting his own way with respect to orders that were to be made in respect of the child.  To have acted in that way demonstrates a lamentable lack of insight and was potentially emotionally abusive to the child. 
33.	 I am also disturbed by the failure of the father to agitate for the making of any orders providing for the child to spend time with him.  The fact that the child has spent time with the father on Saturdays in the last two months, I infer, is only as a consequence of the mother acting so as to implement such a regime, given that the mother is presently satisfied about the emotional condition of the father.
34.	That the father was content for there to be no time spent by the child with him for such a prolonged period of months, in my view, speaks ill of his parenting capacity.
35.	Having regard to the evidence, I am not satisfied that the father has the capacity to act in any insightful way and chooses to conduct himself in a manner to suit his own purposes rather than that of the child.  I am not persuaded that the father demonstrates a positive attitude to the child or to the responsibilities of parenthood.
36.	The evidence satisfies me that the mother is prepared to facilitate time being spent by the child with the father when she is satisfied that the father’s emotional condition is conducive to such contact.  The mother has given evidence that she makes those inquiries of relatives of the father who are known to her.  
37.	The child is currently spending time with the father on Saturdays of each weekend and to ensure that that occurs, the mother occasionally facilitates the changeovers.
38.	The mother has given evidence that she has tried to involve the father in decisions of significance in the life of the child but that her approaches to the father in that regard have been rebuffed.  I accept her evidence and accordingly infer that the father is not availing himself of opportunities to participate in those decisions which fall within the ambit of parental responsibility for the child.
39.	For those reasons, I am satisfied that the orders sought by the mother are in the best interests of the child.
40.	 Accordingly, I make the following orders.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate:  

Date:  23 November 2009