Case Outline Document

Student’s Name

Institutional Affiliation

OUTLINE OF CASE DOCUMENT RELIED UPON BY THE APPLICANT

Sebastian

Applicant

Patsy

Respondent

Hearing Date: 30^th April 2021

1. Background Information

The applicant, in this case, is Sebastian, and the respondent is Patsy. The applicant was married to the respondent and lived in St. Ives from 2005 to 29^th October 2020 when they separated. The applicant and respondent have two children Luke, who was born 0n 10^th September 2010, and Georgia, who was born on 14^th February 2017. The applicant is now suspended from his role as police, pending the outcomes of the charges of aggravated assault. The respondent also has been discharged from her police work due to medical reasons; however, she is working for the Randwick Council as a ranger. After the separation, the applicant continues to live in a matrimonial home in St. Ives, and the respondent lives in the nearby Roseville. Both parents have adhered to the Family Law Act of 1975 on equal shared parental responsibility. They have agreed to live with their children on an equal time basis wherein a fortnight, and the children spend seven nights out with each parent. However, during this period, the children have shown distress and anxiety where Georgia has been unsettled and Luke act-out at school. The teachers have also shown concerns about the children’s behavior. Georgia has been uneasy during the changeover between the respondent and the paternal grandmother. Despite the allegations from the respondent that the applicant has not been caring for the children because he smokes Marijuana, the applicant has occasionally been smoking in the weeks when the children are not in his care.

The applicant is seeking interim orders to live primarily with the children because the respondent has proven not to be stable in parenting and cannot even provide a good shelter for their children. The applicant can now take his full time to care for the children because he is suspended as a police officer. The applicant thinks the respondent can only handle a night in a week with children in her care. However, the applicant believes that they can both continue to uphold equal shared parental responsibility.

2. Documents to be relied upon

The court can rely on other documents related to this case before making decisions. Initially, the applicant had applied seeking parenting orders and interim and final property. The respondent also filed her response to the applicant’s applications. This matter was listed on 2^nd February before Registrar Tran. The children’s interests are represented by the Independent Children’s Lawyer (ICL) appointed by the Registrar. On 2^nd March 2021, the Family Consultant of the Court interviewed the family at the Child Inclusive Conference (CIC) attended by both the parties and the children.

3. Chronology

4. Outline of Submissions

Case Law

The case of Simpson v Hahn [2014] FamCA 674 applies to this case concerning equal shared parental responsibility. In this case, the mother accused the father of sexual abuse and family violence, and it was established that the father had been previously convicted of criminal offenses on sexual conduct but not related to family members. Despite the provision of extensive evidence, the sitting judge did not find anything positive related to the rape allegations, and there was no evidence that the child will be exposed to unacceptable sexual behavior if allowed to interact with the father as alleged by the mother. The court also found out that at one point, the father exposed the children to family violence, but he has completed an anger management program that has helped him to control his emotions. In this case, the court ruled that the parents should have a shared responsibility after considering the evidence provided by the family consultant and a contact center that signified positive connections between the children and their father.

Similar to this case, the children have expressed their interests to stay with the father because they have a good relationship with the paternal grandmother, and they do not want to stay primarily with their mother. This evidence was collected by the Family consultant in the Child Inclusive Conference (CIC). There is no significant current concerns of family violence or incapacities as determined in Simpson v Hahn [2014] FamCA 674.

Similarly, in Phitzner v Hollas [2014] FamCA 344, the parents separated after the alleged issues of physical and sexual assault of the mother and children by the father. The father made parenting applications because the mother went to live with the children. The court observed that the father provided consistent and believable evidence because it was provided in a forthright manner. The court also noted that although the father opted for some form of discipline, he considered it was necessary at that time. The complainant did not provide enough evidence, and the court did not find serious allegations raised against the father. The outcome of the case was on the order of equal parental responsibility where the court order the father to be allowed to spend significant and sufficient time with the children.

The case of Sebastian, applicant, and Patsy, respondent, is similar to Phitzner v Hollas [2014] FamCA 344 because the mother wants primary parenting with allegations that Sebastian is a drug addict and can harm the children. As observed in Phitzner v Hollas [2014] FamCA 344, there is a need for evidence from the family consultant to reveal the affectionate relationship between the father and the children, contrary to the allegations made by the mother. The court will allow the child to be in contact with the parent where the allegations to deny equal shared parental responsibility is determined to be contrary to the evidence provided before the court. The court can also reach a reasoned judgment with the help of a family consultant.

In Weber v Lipson [2014] FamCA 390, the mother accused the father of intimidating and violent behavior that interfered with equal shared parental responsibility. The evidence demonstrated that the children had a positive relationship with both parents. The father admitted during the trial that he intimidated the mother during their last stages of the relationship, but they separated, and he enrolled in a program to change his behavior and also completed a course on “Parenting after Separation.” The court ruled in favor of equal shared parental responsibility after determining that family violence no longer existed. Similar to this case, the applicant has full time to take care of the children because he is suspended from police. There is also a positive relationship between him and the children, and despite the drug use allegations, he points out that he only used it in the first weeks of separation but has now quitted.

Legislation

Cases regarding where children should live and the time they should spend with each parent are made pursuant to Part VII of the Family Law Act 1975 (Cth) (the “FLA”). Under this law, the court has widened its discretionary powers concerning custody and access by considering the concept of the best interests of the child. The Family Law Act 1975 defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” that should be equally shared and continued “…regardless of any change in the parents”. Therefore, in a case where a child seems to be deprived of parental responsibility, court hearings or consent orders are made to make parenting arrangements for the child.

Under Section 65C of the Family Law Act 1975, a parenting order can be made by a child, grandparent, parent, or any individual concerned with the child’s welfare.

Section 601 FLA states that the parties seeking Part VII order should first make a genuine effort to resolve the dispute through a family dispute resolution (FDR). Government-funded organizations, Family Relationship Centers, private services, and Legal Aid Commissions provide FDR. Unless the applicant has attended FDR or filed a certificate through an FDR practitioner, the court must not hear or grant Part VII FLA orders. Under section 601 (7) FLA, the court must not hear an application also if the party has not sought an exemption from the Registrar to attend FDR on the matters of a parenting order. Section 12E FLA requires legal practitioners to help the parties in reconciling their differences by providing non-court-based family services. FDR should provide a certificate where an agreement is not reached, and the parties are allowed to seeking a parenting order from the court.

Section 60CA FLA provides the child’s best interests that must be considered by the court. This section states that the best interests of the child are a paramount principle that the court must put into consideration “in deciding whether to make a particular parenting order in relation to a child.” The court ruled in Goode v Goode [2006] FamCA 1346 that applying a parenting order is made in the presumption that each parent should have an equal shared parental responsibility that serves the best interests of the child. In this case, this presumption is applicable unless proven otherwise that the child is facing abuse of family violence from one of the parents. The court must, therefore, make orders that are consistent with the child’s interests and that are reasonably practicable.

Section 60B and section 60CC of FLA outline the primary considerations that help in ascertaining the child’s best interests. The primary considerations are that the children should obtain the benefits of a meaningful relationship with both parents and that they should be safe from any form of abuse, harm, or family violence. Section 60CC (2A) requires the court to give many considerations to keep the child safe from family violence, abuse, and harm. Other considerations are outlined in section 60CC (3) and (4), where the court considers the views provided by the child, parental attitude towards parenting, the relationship of parents with the child, the extent to which a parent has fulfilled his or her parental obligations, and any other relevant circumstance determined by the court.

References

Family Law Act 1975 (Cth)

Goode v Goode [2006] FamCA 1346

Simpson v Hahn [2014] FamCA 674

Phitzner v Hollas [2014] FamCA 344

Weber v Lipson [2014] FamCA 390