Abramson & Mills
[2024] FedCFamC1F 414
•20 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Abramson & Mills [2024] FedCFamC1F 414
File number: BRC 6455 of 2023 Judgment of: CAREW J Date of judgment: 20 June 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the father or paternal grandmother should have time and/or communication with the child – Where the father has an extensive criminal history involving illicit drug use and child exploitation – Where the father poses an unacceptable risk of harm to the child that cannot be ameliorated by supervision – Where even if the paternal grandmother was minded to restrain the father from coming into contact with the child if he were in her care, she likely not have the physical or mental strength to withstand any pressure brought to bear upon her by the father to see the child – Where the potential benefit of the child spending time with the paternal grandmother is posed against the risk of exposure of the child to conflict and/or to the father – Where the father will play no role in the child’s life and as such the mother should have sole decision-making power – Where the child will live with the mother and the father is restrained from spending time or communicating with the child – Where the paternal grandmother will have monthly electronic communication with the child and be at liberty to send a gift and/or card and/or letter with a photograph once per month. Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DA
United Nations Convention on the Rights of the Child
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley (2022) FLC 94-094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs: 80 Date of hearing: 3 – 5 June 2024 Counsel for the Applicant: Ms Davison Solicitor for the Applicant: CK Family Lawyers For the First Respondent: Litigant in person For the Second Respondent Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Ms Murphy Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 6455 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ABRAMSON
Applicant
AND: MS MILLS
First Respondent
MR TAYLOR
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
20 JUNE 2024
THE COURT ORDERS THAT:
1.Ms Mills (“the mother”) have sole decision making responsibility for all major long‑term issues for the child X born 2018 (“the child”).
2.The child live with the mother.
3.Mr Taylor (“the father”) be restrained by injunction:
(a)from spending any time or communicating in any way with the child either directly or indirectly;
(b)from requesting a third party to contact the mother (other than by a solicitor acting on his behalf); and
(c)from approaching or requesting a third party to approach the mother, the child, Mr B, and/or C.
4.Ms Abramson (“the paternal grandmother”) spend time with and communicate with the child as agreed in writing with the mother and failing agreement as follows:
(a)The paternal grandmother is at liberty to send to the child, no more frequently than once per month, an age-appropriate gift and/or card and/or one page letter with a photograph;
(b)By FaceTime or such other electronic video communication as agreed in writing, on the first Sunday of each calendar month, between 5.00pm – 5.30pm, with the paternal grandmother to initiate a call to the mobile telephone number provided by the mother pursuant to paragraph 10 herein, and the mother shall ensure the child is available to receive such call, and the mother be at liberty to supervise or be in the vicinity of the call.
5.The mother prepare the child for the call by explaining to him that he will receive a video call from the paternal grandmother referred to as “[…]” and the mother take all reasonable steps to facilitate and encourage the child participating in the call with the paternal grandmother.
6.The paternal grandmother inform the mother by text message if she is unable to make the call as provided for by paragraph 4(b) of this Order.
7.The paternal grandmother be restrained by injunction from causing or facilitating the child coming into contact with the father during her video calls with the child either directly or indirectly and, without limiting the foregoing, the paternal grandmother is restrained by injunction from taking any screen shot photograph of the child during any video call with the child and providing it to the father.
8.The mother be permitted to read and view all communication sent by the paternal grandmother to ensure that it is age appropriate.
9.The mother otherwise provide to the child all cards and gifts received from the paternal grandmother, and show the child any photograph and/or letter received from the paternal grandmother, and further, hold all such cards, photographs and letters received from the paternal grandmother in safe keeping for the child until the child attains the age of 18 years.
10.Within 14 days of the date of this Order, the mother inform the paternal grandmother of a telephone number to which calls can be made pursuant to paragraph 4(b) of this Order, and an address to which the items identified at paragraph 4(a) may be sent to the child, which address may include a Post Office Box.
11.The mother keep the paternal grandmother informed of any changes in writing of her telephone number, email address, and the Post Office Box or her nominated address to which cards, gifts, photographs and letters can be sent.
12.The mother assist the child, if he so requests, to reply and communicate with the paternal grandmother.
13.The mother is at liberty to take the child from the Commonwealth of Australia to a place outside of Australia.
14.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the child may be issued with an Australian passport (including any renewals for such passport) and the need for the father’s consent to the issuing/renewal of the passport is dispensed with.
15.All applications be otherwise dismissed.
16.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X (“the child”) is six years of age. The child lives with his mother, Ms Mills (“the mother”) and her de facto partner, Mr B.
The child has not seen or had any communication with his father Mr Taylor (“the father”) since 27 March 2022. The father has an extensive criminal history involving illicit drug use and child exploitation. Although a party to the proceedings, the father has failed to file any material and has taken no part in the trial. There is an outstanding warrant for the father’s arrest in relation to further child exploitation offences.
These proceedings were commenced by Ms Abramson (“the paternal grandmother”) seeking to spend time and communicate with the child. The child has not seen the paternal grandmother since 27 March 2022 and has not had any communication with her since July 2022.
For the reasons which follow, the paternal grandmother will be able to communicate with the child by video call once per month and to send a card, gift, letter, and photograph to the child once per month. There will be no provision for in person contact between the child and the paternal grandmother. The father will not be able to spend any time with the child or communicate with him in any way whether directly or indirectly through a third party.
PROPOSALS OF EACH PARTY
By an Amended Initiating Application filed 31 May 2024, the paternal grandmother vastly changed the final order being sought from that initially proposed by her. The paternal grandmother now seeks a gradual re-introduction with the child, initially supervised at a contact centre, before gradually increasing from daytime only to ultimately four consecutive nights, four times per year in Region D.
By the end of the trial, the mother withdrew her complete opposition to any contact between the child and the paternal grandmother and the mother was granted leave to read a Further Amended Response to Initiating Application filed 4 June 2024. The mother now proposes telephone (not video) communication between the child and the paternal grandmother once per month and the provision of a gift, letter, and photograph by the paternal grandmother to the child once per month. The Further Amended Response indicates, on its face (by way of red underlining), extensive amendment to the final order sought. In fact, paragraphs 3 – 11 are the same as her Amended Response to Initiating Application filed 17 April 2024 (noting paragraphs 1 – 2 are no longer sought). The amendments are limited to the addition of two paragraphs numbered 12 and 13 and relate only to the paternal grandmother.
The Independent Children’s Lawyer (“ICL”) recommends monthly video calls between the paternal grandmother and the child, in addition to a monthly gift and/or card and/or letter, and a photograph. The precise terms of the order recommended by the ICL are set out in exhibit 10.
ISSUES
At the time I set this matter down for trial earlier this year, the significant issues for my determination were identified by the parties as follows:
(1)Whether the paternal grandmother will comply with any restraint placed upon her to not bring the child into contact with the father?
(2)If there is to be any time between the paternal grandmother and the child, what limitations, if any, should be placed upon that time?
(3)Whether it is in the child’s best interests to change his surname?
(4)Whether an order should be made in favour of the mother for sole parental responsibility?
At the commencement of the trial, the parties agreed to amend the fourth significant issue to reflect the statutory change in terminology for parental responsibility to parental decision making and to add an additional issue as follows:
(5)Whether the father poses an unacceptable risk of harm to the child such that he should spend no time and have no communication with the child?
The father was not present when the matter was set down for trial but did participate in the family report interviews in September 2023. At the commencement of the trial, I determined that the matter should proceed to a final hearing on all matters, despite the father’s absence, and provided reasons for same. In short:
(a)The father is clearly aware of the proceedings and has elected not to participate;
(b)On 17 April 2024, the father was emailed a copy of the mother’s Amended Response to Initiating Application filed 17 April 2024 in which, among other things, she sought to restrain him from approaching or coming within 100 metres of the child and her family, and from having any “visitation or communication” with the child “by proxy”;
(c)On 29 May 2024, the ICL emailed the father a copy of her Outline of Case, which set out a proposed final order including that the father spend no time and not communicate with the child;
(d)The father responded to the ICL’s email as follows:
Without prejudice, I confirm I will not be participating nore [sic] attending this witch hunt, joke of a trial. Parties may feel free to paint any picture of me they wish however this trial should be about My son [X] & what's in HIS best interest- (not his mothers.) - Regarding his relationship with [the paternal grandmother] (My Mother.)
I Will lodge litigation applications under my own name when I feel it is appropriate & in my Son's best interest.
(e)The Order made by a Registrar on 28 May 2024 included notice that if the father did not attend the trial, the matter may proceed on an undefended basis and final orders made.
BACKGROUND
Before turning to consider the issues, it will be helpful to set out some background to the matter.
The mother and father commenced a relationship in or about 2016 and separated in or about early 2020. There is one child of the relationship, namely X born 2018.
The paternal grandmother was born 1971 and is 53 years of age. She is not employed and is in receipt of a disability pension. The paternal grandmother has been diagnosed with multiple physical and mental health conditions. The paternal grandmother is currently receiving ongoing treatment for these conditions. She currently lives in Victoria with her partner, Mr E. The paternal grandmother contends that she and Mr E are planning to move to Queensland after his retirement in late 2024. Mr E has several other grandchildren. The paternal grandmother contends that she and Mr E are “meaningfully involved in their lives”, including attending birthday parties and sporting events, and contributing to a trust account for their collective benefit upon turning 21 years of age.
The mother was born 1990 and is aged 34 years. The mother is employed as a professional, a position she returned to after her maternity leave expired in 2024. The mother lives in a four‑bedroom property in Region D.
The mother has re-partnered with Mr B. He was born 1985 and is aged 39 years. Mr B works six days a week as a tradesperson. The mother and Mr B commenced cohabitation in late 2022, and have a child, namely C born in 2023.
The father was born 1992 and is aged 31 years. At the time of the family report interviews in September 2023, the father said he was working as a contractor in the financial sector. The father had not re-partnered at that time. The father has a history of alcohol and illicit and prescription drug misuse, although he asserted during the family report interviews that those issues were not current.
In 2017, the father was convicted of several child exploitation offences. The father was sentenced to various terms of imprisonment in relation to the offences. The maximum sentence was multiple years, but all terms of imprisonment were suspended. The maximum suspension was multiple years.
Following the parents’ separation, the child lived with the mother and spent time with the father most weekends at the father’s residence. The child spent ad hoc time with the paternal grandmother when she visited for special occasions. Despite the father’s criminal history involving child exploitation offences, the mother facilitated the child’s relationship with the father during the relationship and then facilitated the child spending frequent unsupervised time with the father after separation. The mother did not explain why she did so in her trial affidavit or to the family report writer, although the mother expressed regret at doing so during her oral evidence.
The mother ceased the child’s time with the father in February 2022 due to concerns about the father’s home environment and apparent drug use.
The mother ceased the child’s time with the paternal grandmother in March 2022 and the child last communicated with the paternal grandmother in July 2022.
In early 2022, police executed a warrant at the father’s residence where drugs, drug paraphernalia, a mobile phone, and a laptop were seized. The father was convicted of drug offences in mid-2022 and fined. In mid-2022, the father was dealt with for breaching his suspended sentence on three occasions and the suspended sentence was extended for a further period. The forensic examination of the mobile phone and laptop was not completed until early 2023. A review of the electronic evidence revealed the identification of child exploitation material.
In early 2023, an arrest warrant issued for the father in relation to further charges related to child exploitation material. Inexplicably, this warrant remains outstanding. The father remains at large apparently in Region D and in regular contact with the paternal grandmother.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by the Family Law Act 1975 (Cth) as amended (“the Act”), and s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
Abuse in relation to a child is defined in s 4 of the Act and includes involving a child in a sexual activity in which the child is used directly or indirectly as a sexual object.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
WHETHER THE PATERNAL GRANDMOTHER WILL COMPLY WITH ANY RESTRAINT PLACED UPON HER TO NOT BRING THE CHILD INTO CONTACT WITH THE FATHER?
[12] Banks & Banks (2015) FLC 93–637.
The paternal grandmother submits that it is not open to the Court to find that she would not comply with any restraint placed upon her not to bring the child into contact with the father because such a proposition was never put to her during cross-examination.
It is the mother’s case and the ICL’s recommendation that there be no face-to-face time between the paternal grandmother and the child. If I come to that conclusion, the issue of whether the paternal grandmother would comply with any restraint upon her not to bring the child into contact with the father will not arise for determination.
In any event, given what I find to be the fragility of the paternal grandmother’s health, I am not persuaded that the paternal grandmother could do anything to restrain the father from coming into contact with the child, if the child were spending unsupervised time with her, even if she were motivated to intervene. As earlier noted, the paternal grandmother suffers from multiple ailments. The paternal grandmother described in her oral evidence the extreme physical and mental impact on her of even going to the shops. She avoids doing so. On the paternal grandmother’s own evidence, she finds any stress debilitating. In my view, dealing with a situation where the father turned up during a visit between her and the child contrary to a Court order would be stressful. I also note the paternal grandmother’s candid concession in the context of a different matter but nevertheless informative: “He is 32-year-old. He is a grown man. He is not going to listen to me”.
IF THERE IS TO BE ANY TIME BETWEEN THE PATERNAL GRANDMOTHER AND THE CHILD, WHAT LIMITATIONS, IF ANY, SHOULD BE PLACED UPON THAT TIME?
This issue raises the core dispute in this case: whether the benefits to the child of maintaining a connection with his paternal grandmother are outweighed by the risks posed to the child of spending face-to-face time with the paternal grandmother.
Historically at least, the mother and the paternal grandmother were able to communicate, and the mother was agreeable to facilitating the child spending time with the paternal grandmother. The paternal grandmother spent time with the child several times per year during the parent’s relationship and subsequent thereto when the child was spending time with the father.
The mother’s trust in the paternal grandmother seems to have commenced to wane in early 2022 when she became aware, during what was supposed to be a visit with the father, that the child was in fact in the care of the paternal grandmother and that it appeared to her (via the video call) that there was some intention of taking the child to Victoria as there appeared to be a child’s travel bag in the background and the paternal grandmother made some reference to “Melbourne” or “plane tickets” and intimated that the child would be travelling to Melbourne with the father. The paternal grandmother denies ever purchasing plane tickets for the child. Whether or not the incident was simply a misunderstanding, it caused the mother to be more cautious in her dealings with the paternal grandmother.
Then in early 2022, the mother arrived to deliver the child to the father and found drugs and drug paraphernalia on the dining room table and the father appeared to be under the influence of some substance. The father then followed the mother to her car and banged on it causing the child to become distressed. In a subsequent conversation between the mother and the paternal grandmother, the paternal grandmother initially appeared, to the mother, to share her concerns about the father’s apparent mental decline and drug use.
On 27 March 2022, the mother contends that the paternal grandmother knew that she did not support the father spending time with the child when he was with the paternal grandmother. The paternal grandmother denies the mother made it clear that the father could not be present and points to text messages between her and the mother which gave her the impression the mother did not object to the father being present.
Whatever may have been the situation prior to the child being delivered to the paternal grandmother, I accept Mr B’s unchallenged evidence that when he and the mother dropped the child off at the car park of the hotel where the paternal grandmother was staying, there was a conversation between the mother and the paternal grandmother, in which the mother expressed her discomfort about the father seeing the child given her perception of a deterioration in the father’s mental state. I further accept Mr B’s unchallenged evidence that the paternal grandmother expressed similar concerns and said that the father was struggling.
It seems to me that there may well have been a misunderstanding between the mother’s expectations that the father would not be present and the paternal grandmother’s belief that he could be present if she was present also.
The mother’s representations to the family report writer and in her trial material that upon learning that the father was present during the visit on 27 March 2022, she immediately collected the child are not accurate, as conceded by the mother. The mother received a phone call from the father at about 1.00pm on 27 March 2022 during which he demanded that the child’s time with the paternal grandmother (and himself) be extended from the 11.00am to 3.00pm initially agreed to between the mother and the paternal grandmother.
The mother then sent a text message to the paternal grandmother stating that she had just received a call from the father and sought an assurance that there would be no “issues” and the paternal grandmother assured her there would not be.
The mother then called the paternal grandmother and agreed to extend the time by an hour and a half. The mother sent the paternal grandmother a text message at 4.35pm on 27 March 2022 indicating that she was leaving her home to collect the child.
Mr B who was present when the mother received the call from the father at about 1.00pm and overheard the father’s demands, contended that upon receiving the call he and the mother “within an hour” collected the child. Mr B was mistaken.
In any event, I accept that upon collecting the child, the father was aggressive and had to be told to “back off, right now” by the mother.
I also accept that the mother and Mr B were at that time unaware that the father had been charged with further drug offences.
The next occasion arranged for the paternal grandmother to spend time with the child was in August 2022. Again, the mother and paternal grandmother disagree about whether the father was to be excluded from the visit. In any event, it was arranged for Mr B to deliver the child to the paternal grandmother. I accept Mr B’s unchallenged evidence that he had a conversation with the paternal grandmother prior to the planned visit in which he made it clear that the father should not be present due to his “now known substance abuse issues, mental health struggles and further court hearings”. I further accept his unchallenged evidence that the paternal grandmother downplayed the concerns saying, “Oh come on [Mr B], we have all been in trouble with the police before”. I accept Mr B’s evidence that upon noticing that the father was present with the paternal grandmother, he called the paternal grandmother and that a heated exchange occurred, culminating in Mr B not leaving the child with the paternal grandmother and father. Regrettably, the child was present during the exchange.
It is unfortunate that the relationship between the paternal grandmother, mother, and Mr B is now characterised by mutual dislike. The court proceedings certainly have not created an atmosphere conducive to improving their relationship. By way of example, during the family report interviews, the paternal grandmother appears to have gone out of her way to make derogatory comments and accusations about the mother.
It is apparent that the child is acutely aware of the conflict and when asked if he would like to see the father or the paternal grandmother during the family report interview process, the child declined, and his demeanour notably changed. The child was visibly uncomfortable, looking to the wall/ground to avoid eye contact or interaction. Understandably, the family report writer was not prepared to force the child.
The benefit for the child spending time with the paternal grandmother would keep alive his connection to his paternal side of the family in circumstances where he does not have a relationship with the father, but the child does not currently have a relationship with his paternal grandmother. The child has not had any contact with the paternal grandmother for nearly two years. The detriments include the risk of exposure of the child to the conflict and the risk of exposure of the child to the father.
If there were to be any time spent between the paternal grandmother and the child, there would need to be several conditions including that she does not bring the child into contact with the father and any time spent would need to be short given the paternal grandmother’s physical limitations.
WHETHER THE FATHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILD SUCH THAT HE SHOULD SPEND NO TIME AND HAVE NO COMMUNICATION WITH THE CHILD
It seems to me that whether the father poses an unacceptable risk of harm to the child should be considered before the remaining issues. The father was convicted in 2017 of several child exploitation offences. The details of the offences involved the father misrepresenting himself online as a teenager to young girls and then sharing child pornography with them. An example of the messages sent by the father to young girls included the following:
So it wouldn’t both u seeing a guy fuck a girl whose like 5 or 6 and his dick goes all the way in so it looks like hes in her belly then blows a load all over and insider that tinyyy lil babyhole???
The police records described the worst images possessed by the father. The father “traded” child pornography images via an internet messenger application with several users of the application. In relation to the father’s 2017 convictions, the police records include the following:
Alarmingly, [in] 2014 the defendant messaged another respondent on [the application], who gave her age as “[under 18]”, that “I’m kinda horny for my neighbors daughers … one is 7 n other 9” and “Im really tempted to do stuff with my neighbours kids”.
The police records reveal the father encouraged his young prey to send him images of themselves. The sentencing judge noted that the content of images sent to over 40 different children was “lewd and depraved and unrestrained”. The sentencing remarks also note the father’s long term illegal drug use from age 14 and included multiple illicit drugs, as well as prescription medication and alcohol.
The father was able to attain a suspension of his prison sentence for several reasons including the following:
(a)Evidence from a psychologist that the offences were committed as a result of a drug induced psychosis and that the father did not seem to have paedophilic tendencies;
(b)There was a considerable delay between the offences (in 2014) and the court dealing with the father (in 2017) by which time the father was able to point to several rehabilitative factors;
(c)The father’s plea of guilty to the serious offences;
(d)The court was not dealing with a 22 year old with a drug induced psychosis but a 25 year old who had no recent history of offending, who was remorseful, who had the support of his mother, and was in a stable relationship and employment and his partner was about to have their first child.
Despite being given this opportunity to become a worthwhile member of society, the father is facing further charges relating to child exploitation material but has inexplicably managed to avoid arrest for over a year. Police records indicate that on multiple occasions in late 2021, the father is accused of uploading child exploitation material to other users of a social media application. Media files shared by the father depict “the violent [sexual abuse] of toddlers and babies”. When the father’s mobile phone and laptop were seized in early 2022, it took over a year for the devices to be forensically examined. On those devices, child exploitation material was located.
The father’s email response to the ICL does not instil any confidence that the father accepts responsibility for his offending behaviour, let alone accepts that he poses a risk to the child. It seems unfathomable that the mother facilitated regular time between the child and the father after separation. The mother knew of the father’s convictions relating to child exploitation. The mother did appear somewhat remorseful during her oral evidence of having done so. It seems Mr B encouraged the mother to be more protective of the child.
To the mother’s credit, she stopped the child spending time with the father when she found him in possession of drugs and seemingly under the influence of drugs in February 2022. The last time the child saw the father, he was aggressive and frightened the child. It is telling that the paternal grandmother was prepared to downplay the seriousness of the father’s behaviour on this occasion suggesting the only reason the mother stopped the child spending time with the father was because she was jealous of him apparently having a woman at the house.
On the evidence before me, I have no hesitation in finding the father poses an unacceptable risk of harm to the child. The risk cannot be ameliorated by supervision. The father has a history of exposing the child to his aggression. It is also improbable that any contact centre would provide their services given the father’s offending history.
WHETHER IT IS IN THE CHILD’S INTERESTS TO CHANGE HIS SURNAME?
The mother wishes to change the child’s surname to her own surname. The mother expresses a concern that upon becoming aware of his biological connection to the father, this may “impact [the child’s] sense of identity and prompt him to explore paths like those of his biological father, posing substantial risks to his well-being.” The mother’s concern appears somewhat far‑fetched.
There is no evidence that changing the child’s surname would provide any direct benefit to him. He is very young and would likely have only a limited awareness of his surname, but it is part of his identity which was agreed to by the mother at the time of his birth. The mother has a different surname from her partner, and her child with Mr B bears his surname not her own.
The ICL does not support the change of name but nor does she oppose it.
I am not persuaded that it is in the child’s best interests to change his surname.
WHETHER AN ORDER SHOULD BE MADE IN FAVOUR OF THE MOTHER FOR SOLE DECISION MAKING RESONSIBILITY?
The father will not play any role in the child’s life and as such the mother should have sole parental decision making power. There is no opposition to that course, and it is supported by the ICL.
WHAT PARENTING ORDER IS IN THE BEST INTERESTS OF THE CHILD?
There is no dispute that the child will continue to live with the mother, and she will have sole parental decision making power.
The father has not participated in the proceedings, and I have found he poses an unacceptable risk of harm to the child which cannot be ameliorated by supervision. Accordingly, an order will be made enjoining him from spending any time or having any communication with the child.
The paternal grandmother has been something of an apologist for the father, preferring to remain in some respects wilfully ignorant of the extent of his offending behaviour. The paternal grandmother does not consider the father a risk to children let alone a risk to his own child. While I can understand a parent wishing to support their own child above all else, I am not satisfied that the paternal grandmother would prioritise the interests of her grandchild over those of her own child, the father, if she were to spend face-to-face time with the child. Even if the paternal grandmother were motivated to comply with a court order, I do not consider that she would have the physical or mental strength to withstand any pressure brought to bear upon her by the father to see the child if he were in her care. Accordingly, there will be no face‑to‑face time between the child and the paternal grandmother.
The ICL recommends that the child nevertheless maintain a connection with the paternal family via the paternal grandmother by monthly video calls and written communication. After hearing the evidence of the family report writer, the mother withdrew her opposition to all forms of contact between the child and paternal grandmother but wishes to limit their contact to telephone calls rather than video calls as proposed by the ICL. It seems that the mother’s reason for opposing video calls was to guard against ‘screen shots’ being taken of the child during video calls and given to the father. That risk can be addressed by enjoining the paternal grandmother from doing so. I agree with the ICL that limiting the calls to telephone only would be likely to cause confusion to the child in circumstances where he has had no contact with the paternal grandmother for nearly two years.
The benefits for maintaining some connection with the paternal grandmother were expressed by the family report writer to include enhancing the child’s sense of self and identity, minimising the prospect of the child forming unrealistic or extreme views about the father and his family (whether positive or negative), and minimising the prospect of the child’s relationship with the mother being compromised by a belief that she had deprived him of that relationship. I accept her evidence.
While limited video calls between the child and the paternal grandmother may create some confusion for the child, particularly as he gets older, and cause him to ask why he cannot see her in person, I am of the view that the mother can explain the limitations in a child focussed way. An obvious reason relates to the distance between them for so long as the paternal grandmother lives in Victoria.
The mother sought several personal restraints against the paternal grandmother in relation to contacting her via social media, via third parties, ascertaining her address or approaching her or her family, or attending the child’s school. There is no evidence the paternal grandmother has engaged in any of the conduct sought to be enjoined. In the absence of evidence to support the injunctions, I decline to make them.
Each party had the opportunity to make submissions about the order sought by the other. The order I propose to make is determined to be in the child’s best interests.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 20 June 2024
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