Anstey & Leeds
[2021] FCCA 1826
•11 AUGUST 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Anstey & Leeds [2021] FCCA 1826
File number(s): PAC 6038 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 11 August 2021 Catchwords: FAMILY LAW – Parenting – undefended as against the father – young child – best interest of child – serious allegations of family violence – assessment of risk – mother to have sole parental responsibility for the child – child to spend no time with the father – mother to engage with treating general practitioner and B Family Centre. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68B.
Federal Circuit Court Rules 1999 (Cth) rr 13.03A, 13.03B.Cases cited: Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92MRR v GR [2010] HCA 4
Number of paragraphs: 27 Date of hearing: 22 July 2021 Place: Parramatta Appearing for the Applicant: In person Appearing for the Respondent: Ms MacDonald Solicitor for the Respondent: Women’s Legal Services NSW Counsel for the Independent Children’s Lawyer: Mr Fermanis Solicitor for the Independent Children’s Lawyer: JLM Family Lawyers ORDERS
PAC 6038 of 2018 BETWEEN: MR ANSTEY
Applicant
AND: MS LEEDS
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.The respondent mother, Ms Leeds, shall have sole parental responsibility for the child X born in 2015.
2.The child shall live with the mother.
3.The child shall spend no time with the applicant father, Mr Anstey.
4.The respondent mother continue to attend upon her treating General Practitioner at no less than three month intervals for the purpose of a mental health check-up and to ensure compliance with her medication.
5.Within 7 days of these Orders, the respondent mother engage with B Family Centre and request assessment and intake, and thereafter continue to engage as determined by B Family Centre.
6.Within 7 days, the Independent Children’s Lawyer provide a copy of these Orders to the respondent mother’s current General Practitioner at C Medical Clinic and to B Family Centre.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Anstey & Leeds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
X, who was born in 2015, is the only child of the applicant father and the respondent mother. X has been living with her mother and she has not spent any time with her father since July 2018.
On 21 April 2021, the Court set the parenting proceedings down for an undefended final hearing as against the father, who had failed to comply with the Court’s trial directions. The matter was listed for final hearing on 10 May 2021.
On 10 May 2021, the father attended Court and made an oral application for the undefended hearing to be vacated, indicating to the Court that he wanted to participate in the proceedings and that the reason he had not participated in a meaningful manner was due to lack of communication from his then lawyers. Orders were made on 10 May 2021, inter alia, directing the father to file and serve any Amended Application, a single consolidated trial Affidavit and any Affidavits by supporting witnesses upon which he wanted to rely by 4pm on 2 July 2021. The matter was set down for directions or possible undefended hearing on 22 July 2021.
The father failed to comply with Court orders of 10 May 2021.
On 22 July 2021, the father appeared in Court and made a number of submissions as to his failure to comply with Court orders, none of which provided an adequate explanation for his recalcitrance in respect of Court orders. The Court found that the father was in default pursuant to Rule 13.03A of the Federal Circuit Court Rules 1999 (Cth) (“Rules”) and dismissed his application pursuant to Rule 13.03B of the Rules. The matter proceeded to final hearing on an undefended basis as against the father, with the mother and the Independent Children’s Lawyer participating.
RELEVANT LEGAL PRINCIPLES
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45]).
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the child (McCall at [122].
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence (s.60CG (1)(b); See the brief discussion of s.60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)). The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (See s.60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)).
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [15]).
COURT’S DETERMINATION
X, is presently 5 years old. She has no relationship with her father.
The mother is X’s primary caregiver, and she has met all of X’s needs since the parties’ separation in July 2018. The mother has also made all of the decisions relating to the child.
The father provides no financial support for X.
The mother has a history of mental health issues, including attempts at suicide. The mother suffers from Bipolar Disorder and Depression. She has a history of hospital admissions, including for a drug induced psychosis in 2007 and overdosing on prescription medication in 2008. The mother presently takes prescribed medication. She also has a long history of marijuana use, although she says that she has been drug free since 2017.
The mother has a number of vulnerabilities and she has struggled for years with her mental health issues and associated difficulties, including substance abuse. The orders which are to be made provide a number of safety guards to ensure that the mother is supported.
The mother has four other children from a previous relationship, who are aged between 17 and 14. She maintains relationships with all of those children, and as such, X gets the benefit of having her half-siblings in her life.
The mother has made a number of very serious allegations of family violence. They are as follows:
(a)That the father watched pornography in the same bed as the mother’s 14 year old daughter and had touched her in an inappropriate manner;
(b)That the father sexually assaulted the mother on 10 November 2015, resulting in the mother receiving medical treatment for the assault. The father was charged with aggravated sexual assault in 2019 in respect of the rape of the mother in November 2015, but ultimately acquitted in February 2021;
(c)That the father physically assaulted the mother on numerous occasions during the parties’ relationship, with the mother being taken to hospital by ambulance on one occasion in February 2018;
(d)That the father verbally and financially abused the mother, during the parties’ relationship, including denying her access to money to buy medication; and
(e)That in September 2019, the father has contravened the terms of the Apprehended Domestic Violence Order (“ADVO”) protecting the mother.
The medical records, forming part of Exhibit 1, are corroborative of the mother’s version of various events set out in her affidavit.
The Court accepts the mother’s unchallenged evidence in respect of the incidents of violence perpetrated by the father, including the sexual assault of the mother in November 2015, notwithstanding that the father was found not guilty of rape. The criminal standard is not applicable to family law proceedings.
A final ADVO was made on 11 August 2020, following a provisional order being made in April 2019, for the protection of the mother against the father. The ADVO is in force for 2 years, that is, until 11 August 2022.
Given the findings of family violence, the presumption of equal shared parental responsibility has been rebutted. It is in X’s best interest, that the mother have sole parental responsibility.
Furthermore, given the very serious incidents of violence and other matters outlined in the mother’s affidavit which the Court accepts and as such on the facts presently before it, the Court finds that for X to spend any time with the father would carry too high of a risk.
X is a young vulnerable child and should not be placed in a situation where she has to deal with a violent, abusive father. While an order for no time will carry with it some long term risks for X in terms of her psychological development which may manifest itself when she is a young teenager, the short and long terms risks identified in these reasons, far outweigh those potential long term risks.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
28 I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 11 August 2021
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