Ashworth & Ashworth
[2023] FedCFamC2F 617
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ashworth & Ashworth [2023] FedCFamC2F 617
File number(s): PAC 2182 of 2021 Judgment of: JUDGE STREET Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – PARENTING – undefended hearing – two children – parenting orders made Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Family Law Rules 2021 (Cth)
Cases cited: A v A (1998) FLC 92-800
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Goode v Goode [2006] FamCA136
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 17 March 2023 Place: Sydney Counsel for Applicant: Mr McMartin Solicitor for Applicant: Family Focus Legal Respondent: Litigant in Person Counsel for the Independent Children’s Lawyer: Mr C Sperling Independent Children’s Lawyer: Walkden Law and Mediation ORDERS
PAC 2182 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ASHWORTH
Applicant
AND: MS ASHWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.The parties have equal shared parental responsibility for the long-term care, welfare, and development of X born 2005 and Y born 2009 (“The Children”).
3.The Children live with the father.
4.The Children spend time with the mother in accordance with their wishes.
5.That the Children have telephone contact with each parent in accordance with their wishes.
6.That neither party denigrate the other party or their family within the presence or hearing of the Children or allow the Children to remain in the presence or hearing of any person who is denigrating either party or their family.
7.Subject to the ICL informing the children of the impact of the above orders, the ICL is then discharged.
8.The Court reserves its written reasons.
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).
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 by this Court under the pseudonym Ashworth & Ashworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (the ‘Act’) that were commenced on 26 April 2021 in relation to the two children of the relationship, being X born 2005 and Y born 2009. The matter, having been commenced on 26 April 2021, was fixed for a final hearing today, being 17 March 2023, pursuant to orders made by the Court on 14 December 2022.
The orders made on 14 December 2022 required the respondent mother to file and serve a consolidated trial affidavit and also to serve a case outline. Neither order has been complied with and the respondent mother has failed to appear. The Court, for the reasons below, made orders that the matter proceed as an undefended hearing. The Court admitted into evidence as Exhibit A, correspondence sent by the applicant to the respondent confirming, in effect, that the respondent was aware of today’s hearing.
The Court also admitted into evidence the applicant father’s consolidated trial affidavit, the family report Ex B, the child inclusive conference memorandum Ex C, the notice of risk was marked, by error Ex A, whereas it should have been Ex A1 and the tender bundle of the respondent father Ex D The ICL’s tender bundle was also treated as being in evidence and is treated as having been marker Ex E. The case outline of the ICL, in substance, identified orders substantially the same as those in the amended application for final orders filed and served by the applicant on 13 February 2023.
The Court notes that the lawyer for the respondent filed a notice of ceasing to act on 14 March 2023. The Court also notes that at the commencement of the hearing the Court unsuccessfully endeavoured to contact the respondent on the respondent’s mobile. The Court, having already reviewed the material, was satisfied this was an appropriate matter in which to make final orders and publish the Court’s written reasons in due course. These are the written reasons for those orders.
CHRONOLOGY
Date Event 1979 Date of Birth of Mr Ashworth (Father). 1980 Date of Birth of Ms Ashworth (Mother). 2004 Father alleges parties meet in early 2004 and commence relationship in August 2004. 2005 Date parties commenced to live together. 2005 Date of Birth of X (Child of Relationship). Mid-2006 Date of Marriage. 2009 Date of Birth of Y (Child of Relationship) 2013 Father alleges that he and Mother separate and he moves to his mother’s house 30 minutes from the then family home. Father alleges he returns 22 December 2013. August 2014 – April 2015 Father alleges he relocates to Melbourne and lives with his father while mother and children remain in Queensland. Father alleges he travels from Melbourne to Queensland every two to four weeks to spend time with the children over the weekend. April 2015 Father alleges parties reconcile, sell home in Queensland and relocated to Sydney. May 2018 Father alleges incident where Mother allegedly slapped X on his face. 1 June 2018 Date of final separation. Mid-2018 Father alleges incident while he was collecting personal items with Mother and Mr B (the Mother’s then boyfriend). Police attend and make application for AVO against the Father. Mid-2018 Order of the Local Court – AVO for protection of Mother from Father December 2018 Father alleges he discusses equal time arrangement with the Mother but no agreement December 2018 –January 2019 Father alleges he and Mother had agreed children to spend time with him but that does not occur. Father alleges he does spent time with children on 3 January 2019. Early 2019 Father alleges incident between the parties. Father alleges he was arrested for harassment and breach of AVO but subsequently police made an application to protect Father from Mr B (Mother’s then boyfriend) and final AVO order made in mid-2019 (for period of 12 months). January 2019 – April 2021 Father alleges Mother prevents him from:
“48. … spending time with and communication with [Y] and having a meaningful relationship with her older brother.
49. For the period of […] January 2019 to April 2021 every Sunday I would phone, text and/or email [Y] asking to speak to [Y] or arrange to see [Y].
50. [Y] did not return my phone calls or text messages.
51. [Y] blocked my number.
52. [Y] would occasionally respond to emails replying that [Y] did not want to speak with me.”February 2019 - Father alleges X approached father proposed 50/50 at each house for him. Father alleges this occurred for about 6 weeks. Early 2019 Order of Local Court – variation of AVO for protection of Mother from Father being 2 years from the date of order of early 2019 and include orders for Father not to go within 200 metres of Mothers place of residence or work. April 2019 Father alleges X comes to live with him full time. Mid-2019 Father alleges incident of Mother collecting X but X returning a few minutes later. Father alleges X said “I don’t want to see them (Mother and [Mr B]) again.”
Father alleges he has “continued to encourage [X] to communicate with his Mother. I have observed that [X] is reluctant to do so and to my knowledge [X] has not spent time with his mother since the incidence in the above paragraphs.”26 April 2021 Father filed Initiating Application Seeking inter alia
Final Orders
ESPR
X live with Father and spend time with Mother as per his wishes
(1)Y live with parties week about
(2)Special days and Other orders
Interim Orders
X live with Father and spend time with Mother as per his wishes
(1)Y live with Mother and spend time with Father graduating
• 9am-2pm each Saturday for 2 weeks
• 9am-6pm each Saturday for 2 weeks
• 9am Saturday- 6pm Sunday for 4 weeks
• 3pm Friday – commence school Monday alternate weekend for 4 weeks.
• 3pm Thursday – commence School Tuesday (weekly)Other orders
8 June 2021 Orders of the Court (Judge Turnbull)
Consent orders
S11F Child Inclusive CDC for 5/8/2021, Adjourn to 25/10/2021
Consent orders (interim) inter alia
• X live with Father
• Y live with Mother
• Parties facilitate telephone/facetime between sibling each Thursday and Sunday
• Time with Y and Father (with X to attend) each alternate Wednesday 4-7pm supervised by C Contact Service and Father to pay.
• Time with X and Mother (with Y to attend) each alternate Wednesday 4‑7pm supervised by C Contact Service and Father to payJune 2021 Father alleges C Contact Service complete intake assessment but supervised time does not occur due to venue identified closed for Covid. 19 October 2021 Mother files Notice of Address for Service 25 October 2021 Orders of the Court (Judge Obradovic)
Mother to file Response affidavit and Notice of Risk within 28 days. Adjourn to 17/02/2022.17 November 2021 –22 December 2021 Supervised time occurs between:
- X with his Mother and
- Y with her Father
13 December 2021 Orders of the Court (Judge Obradovic) In Chambers
Vacated 17/02/2022
Allocated to Judge Street list on 10/02/2022 for directions
Parties to file agreed statement of issue 7 days prior to directions21 December 2021 Mother files material including Response Affidavit and Notice of Risk 12 January 2022 Father alleges Mother cancelled X’s contact with her. 19 January 2022 Father alleges Mother cancelled Y’s contact with Father. 26 January 2022 Father alleges Mother cancelled X’s contact with her. Early 2022 Father alleges he separated from his former partner Ms D. 2 February 2022 Father alleges Father’s time with Y proceeds. 9 February 2022 Father alleges Mother cancelled X’s contact with her. 10 February 2022 Orders of the Court (Judge Street)
Direction to attend FDRC
Amended 18/02/2022 to provide include of s13C(1)(b) Order16 February 2022 Father alleges Mother cancelled Y’s contact with Father 2 March 2022 Father alleges Fathers time with Y proceeds 9 March 2022 Father alleges Mother cancelled X’s contact with her. 16 March 2022 Father alleges he informed Y that this “would likely be the last of these visits” 19-21 March 2022 Father alleges Y spends time with Father by arrangement including overnight and stays until being taken to school on 21 March 2022. 20 March – 18 April 2022 Father alleges Y “would spend time with at least 70% of the time per week.” 23 March 2022 Father alleges Mother cancelled X’s contact with her. Early 2022 Father alleges Y informed Father that Mother had slapped Y across the face. Father subsequently contact police (Incident Number …) 18 April – May 2022 Y with her Father. 20 April 2022 Orders of Court (Judge Street)
Orders re FDRC on 17 May 2022 and directions for filing26 April 2022 Application in a Case filed by Mother 27 April 2022 Order of the Court (Judge Street) In chambers
Application in a case filed 26 April 2022 fixed for interim hearing 06/05/20226 May 2022 Orders of the Court (Judge Street)
Adjourn to 9 May 2022
Order for neither parent to physically discipline Y
S 68L Orders
S 62G family report re Y
Mother to provide Father all school reports for Y6 May 2022 Father alleges orders made for Y to be returned to her Mother and she was returned to Mother at Suburb E station that day. 9 May 2022 Orders of the Court (Judge Street)
Stand over to 10 May 2022 via video and/or audio link10 May 2022 Orders of the Court (Judge Street)
Responsibility for day to day care welfare and development of Y to both Mother and Father.
Y live with the Mother.
Y spend time with Father- During school terms 3 consecutive nights per fortnight commencing Friday 20/05/2022 (i.e. alternate 3pm Friday to before school Monday)
- Half school holidays
- Alternating weeks during December/January holidays
- Special Days (Mothers Day, Father’s Day, Christmas Day/ Child and Mothers Birthdays)
Other orders including:
- Changeover at McDonalds Suburb F
- Exchange of information orders
17 May 2022 Dispute Resolution Conference 17 May 2022 Orders of the Court (Judge Street)
Adjourn to 26/09/2022 for directions
Notation – DRC by a Judicial Registrar no …
ICL not then appointed.14 September 2022 Orders of the Court (Judge Street) In Chambers
Vacate 26/09/2022
Directions for 19/10/2022 via video and or audio link19 October 2022 Orders of the Court (Judge Street)
Directions for 14/12/2022 via video and/or audio link
Notations
Parties awaiting Family Report
Makeup time for father is intended to be arranged between the parties for Y.
Independent Children’s Lawyer should be able to speak with the child prior to next listing.12 November 2022 Family Report of Ms G 16 November 2022 Orders of the Court (Judge Street) In Chambers
Release of Family Report14 December 2022 Orders of the Court (Judge Street)
Final Hearing 10am 17 March 2023 via video and/or audio link
Vacate orders 2-7 of 10 May 2022
Y to spend time with each parent in accordance with her wishes
Directions for filing of material including:- Father to file affidavit by 03/02/2023
- Mother to file affidavit by 24/02/2013
December 2022 Father alleges Y contacts him and subsequent Y changeover to him at 6:50pm. Father alleges Y “complained that her mum had been yelling at her before and during the drive to changeover.” 27 December 2022 – 10 February 2023 Father alleges Y with him and “[Y] has not spent time with her mother.” 13 February 2023 Father filed Amended Initiating application for Final Orders seeking inter alia
ESPR- X live with Father and spend time with Mother in accordance with his wishes
- Y live with Father and spend time with Mother in accordance with her wishes
Father also files consolidated affidavit
17 February 2023 Father in his Outline of case document filed 15 March 2023 alleges Y spends 4 hours with the Mother. 1 March 2023
8 March 2023FDR
Interlocutory telephone mention- Solicitor for respondent foreshadowed ceasing to act- respondent on notice may proceed as undefended hearing14 March 2023 Mothers solicitors file a Notice of Ceasing to Act 14 March 2023 Father files his Outline of Case document 17 March 2023 Matter listed for hearing UNDEFENDED HEARING
The Court was satisfied that this is a case where there has been non‑compliance with the Court’s orders, enlivening the Court’s powers under r 1.33 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Family Law Rules’). The Court has taken into account the overarching purpose of the Family Law Rules in r 1.04 and overarching purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’) as well as the principles s 43 and s 69ZN of the Act.
The Court is satisfied that the respondent was aware of the hearing date and has been afforded procedural fairness in respect of the orders being sought, in substance, by the applicant, as reflected in the short minutes of order attached to the ICLs case outline. The prospect that the matter would proceed as an undefended hearing was raised at a telephone directions hearing on 8 March 2023. At that hearing the lawyer for the respondent also confirmed that the respondent was on notice that the matter may proceed as an undefended hearing. The respondent has failed to comply with the procedural trial orders within r1.33 and is in default under r10.26 falling within r10.27 by reason of which the matter should now proceed as an undefended hearing. The Court was satisfied that this is an appropriate matter in which to make an order that the matter proceed as an undefended hearing. The Court is satisfied that such an order is in the best interests of the children and is in the interests of the administration of justice.
EVIDENCE
The applicant fathers’ affidavit dated 10 February 2023 identified continuing conflict between himself, the respondent mother, and the children. In early 2019, the father alleged that Y requested to be picked up at the mothers’ residence and upon attempting to do so he was involved in an altercation with the mothers’ partner which the children witnessed. Following this incident the father alleged that the mother prevented him from spending time with Y and Y having a meaningful relationship with her brother.
The father alleges X has lived with him full time since April 2019. The father alleges that in June 2019, X expressed the view that he did not want to see his mother and her current partner again as a result of a verbal argument between himself and his mother.
Interim consent orders were made by consent on 8 June 2021 for supervised time. The father alleges that his supervised visit with Y on 24 November 2021 at the nominated contact centre “had been 2 years. 9 months and 18 days since I had seen or spent time with [Y]”. The father alleges a number of cancellations on the mothers’ behalf of supervised time with the children up to mid-March. The father alleged that from 20 March 2022 to 18 April 202 Y had graduated to spending at least 70% of time per week with him.
In early 2022, the father alleges that Y had communicated to him that “Mum slapped me across the face and said if I didn’t come back like [X] that she would kill herself and that would be on my hands for the rest of my life.” The alleged slap was report to the Suburb E station and Y remained in the fathers’ care.
On 19 April 2022, the father alleges that Y further communicated that she wanted to live with her father and didn’t want to go back to her mothers’ residence.
On 21 April 2022, the father alleges that Y further communicated to the father that she had messaged her mother that she wanted to live with her father.
On 6 May 2022 orders were made to return Y into her mother’s care and alleges that “[Y] was severely upset that she was being forced to go back to her mothers. I almost had to drag her out crying to the car.”
On 14 December 2022 order were made that Y live with the father and spend time with her mother in accordance with her wishes.
CHILD INCLUSIVE MEMORANDUM AND FAMILY REPORT
The Child Inclusive Conference Memorandum dated 21 September 2021 involved the interviewing of the father, mother, Y and X by video conference. This memo considered the Notice of Risk and Application of the father, noting that the mother had not filed any documentation at that time.
In that interview, Y stated that she did not want equal time with her father but was willing to spend time with her father on a gradual basis. Y stated that she missed spending time with her brother X.
In that interview, X expressed that he wanted to remain living with his father and to see his mother “every now and then” and that could mean each fortnight for “a few hours”. He stated that he spends time with his sister by playing online game with her.
The Family Consultant noted the conflicting allegations of family violence. They suggest, subject to the Courts’ findings, that the father may benefit from completing a Men’s Behaviour Change program and that the mother may benefit from completing a managing anger program. The consultant was of the view that the maintenance of an effective co-parenting relationship has been extremely limited between the parents and that a shared parental responsibility order could adversely impact Y’s ability to engage in much needed treatment. The consultant stated that is may be of benefit for X and his mother to engage in therapy to assist in rebuilding their relationship. The consultant recommended that should Y continue to live with the mother and spend time with the father that this would be facilitated by a contact centre or private service in a neutral setting.
The Family Report, dated 12 November 2022, involved; the interviewing of the mother, father by video conference, the interviewing of Y and X in person, observations of the childrens’ interactions with the father at his residence and, on another occasion, observations of the childrens’ interactions with the mother at her residence.
The consultant writes that X “like[s] that Dad doesn’t yell” and that in respect to his mother that he “doesn’t really like her, it is the reason I left, she was always yelling at me and tried to stop me seeing Dad, so I left”. X indicated that he was “not really interested” in attending family therapy or engaging in a relationship with Ms Ashworth at that stage. X wanted to remain living with his father and spend no time with his mother, or otherwise in accordance with his wishes.
The consultant writes the Y commented that there was nothing she did not like about spending time with her father and that he relationship with her mother was “not the best, not the worst”. Y mentioned that her mother had “hit me multiple times before”. Y expressed her preference to live with her father and to spend time with her mother on weekends.
The Family Report recommended that there be shared parental responsibility for the children that X reside with his father, that Y spend time according to the Courts’ determination regarding family violence and alleged physical abuse, that the parents engage in a parenting after separation course and that the children be engaged in therapeutic support.
SUBMISSIONS
The applicant and the ICL substantially supported the same parenting orders and the ICL confirmed that Y wished to live with the applicant father. The applicant identified that two children have a close relationship with the applicant father and that the applicant father has capacity to encourage a meaningful relationship with both parents.
The applicant asked for an order of equal shared parental responsibility. The applicant identified the prospective nature of evaluating a meaningful or significant relationship and the benefit to the child. X has expressed consistent views as to living with his father since 2019 and referred to the concerns of the family report writer if he were to be forced to do otherwise. The applicant referred to the views of Y in the family report and her willingness to spend time with her mother on weekends. Y told the report writer she wanted to live with her father and referred to being hit multiple times by the respondent mother and concerned about her reaction.
The applicant referred to the family report finding that the children’s psychological and emotional needs were being well supported by the father and burden of the relationship with the respondent mother. The children’s views were described as thoughtful and consistent with their developmental stage. The applicant referred to the report writer opining that the children may face psychological harm if forced to live with the mother. The respondent mother’s inability to acknowledge the validity of the children’s views as also identified.
In relation to the primary considerations the applicant identified both parents love the children and that the proposed orders permitted a continuing meaningful relationship. The submissions identified the risk of psychological harm if forced to live with the mother. The applicant referred to the strong wishes of the children to live with the father and their maturity. The acrimony by the mother against the father was also identified. It was submitted significant weight should be given to the children’s views.
The close relationship with the father was emphasised and the troubled relationship with the mother. The adverse impact of being separated as children was said to pose an psychological risk. The respondent has not be involved the father in long term issues which is of concern and the mother interfered with Y’s time and communication with her father. It is clear X doesn’t want to spend time with the mother. The father has ensured consistent communication with the children.
Both parents have supported the children and the father has paid child support. The adverse effect of continuing to live with the mother was identified and that there was less risk to the children living with the father. It was submitted the mother has been unable to meet the children’s emotional needs which has impaired her relationship with them.
The potential harm from the mother undermining the relationship of the children with the father was identified and the father’s greater capacity to provide for the children’s needs. The mother’s resistance to the views of the children was identified and that for them to continue to live with her could cause emotional harm.
The ICL identified that it was not in dispute that X live with his father and spend time with the mother in accordance with his wishes. The ICL identified the issues in relation to Y. The ICL supported equal shared parental responsibility if the children were living with the father. The ICL identified the expired ADVO. The ICL supported Y’s views being given substantial and significant weight in her desire to live with her father.
PRINCIPLES OF PARENTING LAW
The Court has taken into account the principles in s 43, s 60B and s 69ZM of the Act. The Court has taken into account the statutory pathway in Goode v Goode [2006] FamCA136 at [65].
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. These are to ensure, as stated in s 60B(1) of the Act, that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, 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 for the child. The considerations by the Court are identified in s 65DAA of the Act.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act. The Court has also taken into account s 60CG of the Act to ensure the orders do not expose a person to an unacceptable risk of family violence. Family violence is defined in s 4AB of the Act and abuse is defined in s 4 of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. (emphasis added)
In Loddington at [173], Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering.”
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally, the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
(i)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
(ii)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(iii)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(iv)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(v)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(vi)Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(vii)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(viii)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
(ix)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(x)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
(xi)Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
(xii)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
(xiii)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
(xiv)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
FINDINGS AND CONCLUSIONS
The Court has also taken into account that, in applying the primary considerations, greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of the children, the Court has taken into account the whole of the provisions of s 60CC of the Act, including the additional considerations. The Court is exercising its power to make parenting orders consistent with s 65D of the Act. The Court has considered whether this is an appropriate matter in which there should be equal shared parental responsibility under s 65DAA of the Act.
This is a case in respect of which given the age of X great weight should be given to his views, given his age at 17, and the fact that he has been living with the father and that reflects his wishes. It is apparent that X does not have, at this stage, the best relationship that he could with his mother. However, the Court is not persuaded that there should be any other order made in relation to X than that he live with his father and spend time with his mother in accordance with his wishes.
The Court is satisfied that proposed order is in the best interests of X. The Court has taken into account the paramount considerations and the additional considerations in that regard. The Court is satisfied that there would be an unacceptable risk of emotional harm to X if the Court were to seek to impose some other order in respect of seeking to encourage meaningful and significant time with the mother, given his age.
In relation to Y, she expressed views to the ICL that she wished to live with the father. She has been living with the father. While she is at a younger age, being currently 13, she is nonetheless in a position where she is currently living with the father. The Court has taken into account the primary considerations and the additional considerations in relation to Y. Taking into account the ICLs submissions and the age of Y the Court is satisfied that great weight should be given to the views of Y and that the appropriate order is for her to spend time with the mother in accordance with her wishes, as sought by the ICL, and to live with the father.
The Court is satisfied that the orders are in the best interests of Y. The Court is satisfied that this is a case where, at this age, seeking to impose on Y orders in respect of significant and meaningful time with her mother is unlikely to assist the relationship, and there is an unacceptable risk of emotional harm to Y if she was compelled to spend time with her mother contrary to her wishes at this age. The Court has taken into account the evidence in the family report. This is not a case where it was necessary for the Court to make findings in relation to the allegations of family violence and physical abuse.
The Court has also taken into account the benefit of Y, whilst living with her father, having the benefit of her relationship with her brother, which is also in her best interests. It is for these reasons that the Court was satisfied that it was in the best interests of the children to make the orders sought as identified by the ICL in the ICLs case outline which were, in substance, to the same effect as sought by the applicant.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 22 June 2023
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