Attwater & Franklin
[2021] FamCA 470
•2 JULY 2021
FAMILY COURT OF AUSTRALIA
Attwater & Franklin [2021] FamCA 470
File number(s): BRC 11325 of 2014 Judgment of: FOSTER J Date of judgment: 2 JULY 2021 Catchwords: FAMILY LAW – CHILDREN – Undefended Parenting – where the father is currently in custody – where appropriate the matter proceed on an undefended basis – where consideration of applicable principles – where orders made providing the mother with sole parental responsibility – where orders made for the children to live with the mother – where orders made for the father to be restrained from contacting the mother and children Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Niem & Tong [2016] FamCA 1089
Niem & Tong [2018] FamCA 1072
Number of paragraphs: 85 Date of hearing: 15 June 2021 Place: Parramatta Applicant – self-represented litigant: The Applicant did not attend Counsel for the Respondent: Ms Knight Solicitor for the Respondent: Bell Lawyers Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Mr Ng of Adams & Partners Lawyers ORDERS
BRC 11325 of 2014 BETWEEN: MR ATTWATER
Applicant
AND: MS FRANKLIN
Respondent
AND: MR NG
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
15 JUNE 2021
UPON NOTING IT IS 10.20 AM AND THERE IS NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT FATHER AND UPON NOTING HE HAS NOT OTHERWISE ENGAGED WITH THE COURT SINCE DECEMBER 2019, THE COURT ORDERS THAT
1.The father’s Initiating Application filed 12 December 2014 be struck out and dismissed.
2.The mother’s application for final parenting orders as contained in her Response proceed to undefended hearing forthwith.
3.Leave is granted to the parties and the Independent Children’s Lawyer to have access to all documents produced on subpoena by City B Local Court (Sleeve 38) in these proceedings.
4.All previous parenting orders be discharged.
5.The mother have sole parental responsibility for the children, X born … 2007 and Y born … 2009.
6.The children live with the mother.
7.The children spend no time with the father.
8.The children, X born … 2007 and Y born … 2009, are permitted to have an Australian travel document and to travel internationally.
9.The mother may apply for an Australian travel document (passport) for X born … 2007 and Y born … 2009 without first obtaining the consent of the father.
10.Pursuant to Section 68B of the Family Law Act 1975 (“the Act”), the father be restrained by injunction from:
(a)Approaching or coming into contact with the mother;
(b)Approaching the mother’s home, treating health care facility, place of work or study or any other premises that the mother may be from time to time;
(c)Approaching or coming into contact with the children, X born … 2007 and Y born … 2009;
(d)Approaching the children’s home, treating health care facility, place of work or study, if applicable, and any other premises at which the children may be from time to time.
(e)From assaulting, harassing, molesting, intimidating or threatening the mother and/or the children or any other person that the mother and/or children may live with.
11.For the purposes of the previous order, the said Order is made as an injunction in force under s 68B of the Act for the personal protection of the mother and the said children to which the provisions of s 68C of the Act as to arrest without warrant shall apply.
12.Pursuant to section 65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
13.The hearing dates of 16, 17 and 18 June 2021 are vacated.
14.All outstanding applications be dismissed.
15.The matter be removed from the active pending cases list.
16.All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
17.Reasons for judgment are to be published on a date to be fixed.
THE COURT NOTES THAT
18.In the circumstances of this matter there is no application for costs in relation to this matter.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Attwater & Franklin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
These are parenting proceedings commenced by the applicant father by Initiating Application filed 12 December 2014.
The application concerns two children: X born in 2007 and Y born in 2009 (“the children”) who at the time of hearing were aged 13 and 12 respectively.
At trial, the mother relied upon the following documents:
(a)her Amended Response filed 11 October 2019;
(b)her affidavit filed 11 October 2019;
(c)the expert report dated 6 March 2019.
The mother sought orders as set out in a Minute of Order contained within her Case Outline document tendered at hearing. That Minute of Order provided that she have sole parental responsibility for the children, that they live with her and that the father be restrained by injunction from coming into contact with the mother or the children, including being restrained from approaching their home, treating healthcare facility, place of work or study. The mother also sought orders that she be permitted to obtain passports for the children.
The Independent Children’s Lawyer (“ICL”) supported the mother’s position.
Orders were made by the Court largely in the terms sought by the mother on 15 June 2021 and reasons were reserved. These are those reasons.
Context
The mother was 43 and the father 47 at the time of hearing.
In 2001 the father was convicted of manslaughter and sentenced to six and a half years imprisonment. In early 2006, while the father was on parole, the parties met and shortly after the father moved into the mother’s home. The mother has a child from a previous relationship who was age five at the commencement of cohabitation (“the mother’s child from a previous relationship”).
The parties’ first child was born in 2007 (“the older child”) and their second child was born in 2009 (“the younger child”).
The mother deposes that the father perpetrated violence against her and the children throughout the parties’ relationship beginning from as early as 2006, when the mother was pregnant with the parties’ older child. The violence perpetrated by the father caused the mother to spend significant periods of time with the children in domestic violence refuges and subsequently led to a final Apprehended Violence Order (“AVO”) being made for the protection of the mother and the children in November 2009.
The parties separated on a final basis in January 2010 and the children have not seen the father since this time.
Subsequent to final separation, the father remarried and relocated to Brisbane where he later commenced these proceedings.
The proceedings
On 12 December 2015 the father commenced proceedings in the Federal Circuit Court of Australia in Brisbane seeking orders on a final and interim basis that the parties hold equal shared parental responsibility, that the children live with the mother and spend overnight time with the father on each alternate weekend.
On 24 July 2015 orders were made providing that the children live with the mother and spend time with the father at a supervised contact centre for a period of two hours on Saturday and Sunday on each alternate weekend and on this day proceedings were transferred to the Parramatta Registry. Supervised time in accordance with these orders never commenced due to the contact centre not accepting the family due to the serious domestic violence allegations.
Proceedings were transferred to this Court on 12 October 2015.
On 9 February 2018 an order was made restraining the father from approaching or coming into contact with the mother or children or approaching their home, workplace or place of study.
At a case management event on 18 October 2018 orders were made by consent appointing a single expert in the proceedings for the purpose of the preparation of an expert report. The expert report was subsequently released to the parties on 14 March 2019.
Trial directions were made on 17 June 2019.
Following two compliance hearings, it was noted at a case management event on 17 December 2019 that both parties had complied with trial directions, albeit belatedly by the father, and the matter was ready to proceed to final hearing. It was also ordered that this was a matter that the provisions of 102NA of the Family Law Act 1975 (Cth) (“the Act”) would apply.
On the first day of final hearing on 15 June 2021, there was no appearance by the father and an application was made by the mother for the matter to proceed on an undefended basis, which was supported by the ICL.
Procedural Fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2)If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Further, rule 11.02(2)(c) of the Rules provides:
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c) determine the case as if it were undefended.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Act:
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed …
The father failed to attend the final hearing on 15 June 2021 and has not filed any documents or engaged in the proceedings since December 2019. Having regard to the fact these have been extremely longstanding proceedings which have been ongoing for over six years and given the father has had no contact with the children since 2010 and they are now aged 12 and 13 respectively, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis in the father’s absence on the date it was listed for final hearing.
The mother’s evidence
The parties’ relationship was characterised by violence and abuse from the commencement of the relationship, with significant abuse being perpetrated by the father towards the mother’s child from a previous relationship, who was aged 10 at the commencement of cohabitation. The father would often shove and push the child from her previous relationship, including on one occasion pushing him through a window. The father would throw objects at the child and belittle him, often including racial taunts. For his protection, the mother sent the child to live with his paternal grandparents until the birth of the parties’ older child.
When the parties’ older child was born the father became violent towards the child soon after his birth. When the child was a baby and would cry through the night, the mother alleges the father would scream at the child, shake the bassinette violently and verbally abuse her to attend to the child.
The father was frequently violent towards the parties’ pets. This would often include hitting the parties’ dogs with a shovel or stick or kicking them. The mother recounts seeing the father hit the head of a kitten and states that she found one of her cats dead in the driveway on the same day the father confessed to killing a previous partner’s cat. On one occasion the father placed a leash on the parties’ dog and swung him in the air and threw him on a chicken wire fence several times after the father discovered the dog had damaged one of the father’s marijuana plants. This incident occurred in the presence of the children.
Prior to separation, the mother fled to a domestic violence refuge with the children on two occasions. The first occasion occurred prior to the birth of the parties’ younger child and at this time the mother spent two weeks at the refuge before returning to the former family home. The mother became pregnant with the parties’ younger child shortly after her return.
An incident took place when the parties left the hospital following the birth of the parties’ younger child. The father became enraged when installing a car seat and baby capsule in the parties’ car and as a result the father threw the car seat several metres away.
When the parties’ younger child was an infant, following an argument between the parties the father took the children from the former family home and drove off without explanation. The father telephoned the mother the next morning informing her he had taken the children to his uncle’s home because he wanted her to know how it feels. He returned the following evening with the children.
Throughout the parties’ relationship the father frequently threatened that he would locate and kill the mother if she fled again. The mother recounts an incident in about November 2009 following an argument with the father where she became so fearful of the father that she fled the former family home without having any time to pack. At this time the mother stayed with the children in a women’s refuge for approximately two to three weeks.
The children were often present when the father would insult, threaten and hit her. The father would also hit the children, including on their face and head and subject them to inappropriate punishment such as putting them in a dark room. On one occasion when the child from the mother’s previous relationship was approximately 13, the father threatened to hit him with a curtain rod. Generally, the father was rough and aggressive towards the children.
The mother recounts an incident in February 2010 where following a verbal argument the father threw the mother on the bed and began to choke her, she breaking her thumb while trying to free herself from the father.
The father grew and sold marijuana and also used drugs. At one point the father asked the child of the mother’s previous relationship whether he knew anyone at school who smoked marijuana or would want to buy some.
In July 2010 final separation occurred between the parties with the mother fleeing to a refuge with the children for a third and final time. The parties had a verbal argument about the child of the mother’s previous relationship which had escalated with the father becoming violent and throwing objects which hit both the mother and the children. The father threatened that he would find and kill her if she fled with the children. The threat was made in the presence of the children.
Subsequent to final separation, a Final ADVO order was made on 17 November 2010 preventing the father from coming within 100 metres of the mother and the children.
In 2011 the mother was informed by her sister’s ex-partner that the father had contacted him trying to obtain a gun. The mother became immediately concerned that the father intended to fulfil his threats of trying to locate and kill her. Such fears were intensified by the knowledge that the father had previously shot and killed his former friend as set out below.
The father’s criminal convictions
In 2001 the father was found guilty of manslaughter by reason of provocation for a killing which occurred in 1999. The police narrative recounts that on the morning of the killing, the victim arrived at the father’s house to retrieve equipment belonging to the victim. The father and the victim became involved in a verbal argument, which escalated to the victim attempting to punch the father before returning to his motor vehicle which was parked outside of the father’s house. Following the argument the father entered his home and retrieved a rifle which was stored under his bed and returned to the front yard where he shot the victim four times, before hitting him in the head with the butt of his rifle. Post mortem examinations revealed that two of the shots were fired by the father subsequent to the victim falling to the ground. The father was sentenced to six years and six months imprisonment as a result of this conviction.
As a result of the investigation into the killing, police searched the father’s home and located a hydroponic set up, including cannabis plants, almost $4,000 in cash and paperwork outlining the source of cash as “legit” and “non-legit” sources. Subsequent to these findings, the father was charged and convicted of possessing a prohibited drug and cultivating a prohibited plant. He was fined and placed on a bond.
In February 2020 an AVO was issued against the father for the protection of his current partner following an incident in which he struck his wife across the face with force using his open hand and threw and destroyed her mobile phone. At the time of the violent incident three children were in the home, including the father’s child of this later relationship who was aged three at the time.
The Expert Evidence
The parties, the children and the father’s new partner met with a single expert for the purpose of the preparation of an expert report in January 2018. The children were then aged ten and eight when interviewed by the single expert.
In the course of her interview with the single expert, the mother reported significant violence perpetrated towards her and her child from a previous relationship. She stated that the father had whipped her with a hose, strangled her, pushed her while she was pregnant and thrown her on a bed. The father had pushed the mother’s child from a previous relationship through a window, causing him to slice his arm. Both the mother and her child from a previous relationship were subjected to verbal abuse and constant belittling.
The mother reported to the expert that the younger child had suffered with colic as a baby and that the father “couldn’t handle it”. She reported an incident when the child was aged one, where the father held the child by one leg upside down and threatened to throw him against the wall and another incident when the older child was an infant where the father pushed the older child, who was in a pram, into a wall when the child was crying. The mother also told the expert of a time when the parties were travelling in a car with the children on the motor way when the father pulled the steering wheel in a dangerous manner.
The father reported to the expert continual feelings of life being unfair, including in relation to his conviction of manslaughter. Other events which the father felt had been unfair included being charged with offensive language and malicious damage, the separation from the mother and the children, allegations of violence made against him by the mother and the court system not allowing him to see his children.
The expert opined that the father suffers from a persistent depressive disorder with ongoing symptoms of anger, irritability and hopeless feelings and dysphoria and that the father does not believe he has the ability to change or influence what happens in his life.
The expert briefly interviewed the mother and father together, which was the first time the parties had had contact in eight years. The expert observed that the father quickly began asking the mother inappropriate questions about her child from a previous relationship and made statements that were provocative and threatening, including asking the mother why she was making up such allegations and threatening that she and her child from a previous relationship could be given criminal records for making up such allegations.
It was the expert’s opinion that the father would have significant difficulties in meeting the psychological and social needs of the children as he has an attribution style of others mistreating him or neglecting his needs and this would adversely affect his parenting ability. The expert gave the example of the father’s treatment of the mother’s child from a previous relationship who the father felt angry towards, including to the extent that the father felt he may need to make a legal complaint so the child would have a criminal record and not be able to gain employment in the future. The father demonstrated an inability to focus on the mother or the children’s perspectives and demonstrated no awareness of the children’s issues, such as the younger child being diagnosed with ADHD. The expert opined that the father would have great difficulty in putting the children’s needs above his own.
The children were interviewed together by the expert and both presented as being friendly and cooperative. The expert found both children to have normal cognitive function and logical thoughts. The younger child reported that he had a good relationship with his mother and was not sure whether he wished to see his father and appeared to be open to being guided by his mother or brother. The older child reported that his father was “abusive” and that there was “no way I can see him. He is a stranger. I want nothing to do with him”.
The expert opined that the mother would be capable of providing for the biological, psychological and social needs of the children and is able to prioritise their needs. The expert explained that an example of the mother’s parenting capacity is evident in her recognition that her children were at risk while she was in a relationship with the father and her decision to remove the children from that environment. Although the mother has suffered from anxiety as a result of her relationship with the father she has sought appropriate support and is able to provide for the children adequately.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
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 relevantly does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b) …
(c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In this case the presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe the father has engaged in family violence both during the relationship and since separation.
The highly conflictual nature of the parties’ relationship was apparent to the single expert during the interviews conducted for the purpose of the expert report. The expert interviewed the mother and father together and although they were able to sit in a room together, the expert observed that the father quickly became threatening and provocative.
At the commencement of the interview the mother explained to the father that she was fearful of him and that she had learnt through her sister’s ex-partner of threats made by him against her. The father was dismissive of her fears and denied making such threats. In turn, the father began asking inappropriate questions about the child of the mother’s previous relationship, including whether he was receiving any treatment and whether he would tell lies about the father as a witness in these proceedings.
The father ignored the single expert’s instructions to restrict comments to those that are constructive and instead continued to make threatening and provocative comments. Such threats included that if the child from the mother’s previous relationships was a witness in the proceedings he may be charged with defamation and receive a criminal conviction, which the father explained would make his life extremely difficult.
The expert observed the father to have a threatening demeanour throughout the interview and similarly opined that the father did not have any awareness that the mother would be fearful of him or that he was being provocative. When subsequently being interviewed alone the mother expressed that the joint interview had been a “mind fuck”. She was visibly concerned that the child of her previous relationship was in danger, reminding the expert that the father had previously killed his friend.
In the circumstances where the father has had no contact with the children since 2010 and the mother has had sole parental responsibility in the interim, the Court is of the view that it would be in the children’s best interests for her to continue to exercise sole parental responsibility on a final basis. Any interaction between the father and mother presents as a risk to the mother and children.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
(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 applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
The need to protect is in itself determinative of the current application.
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The mother has been the primary carer for the children since separation and it is clear that she shares a close loving relationship with the children. The orders proposed by the mother and supported by the ICL that the children live with her and that she hold sole parental responsibility will see the children maintain a meaningful relationship with her.
It is clear that the children have no relationship with the father. Any relationship would present as a significant and unacceptable risk to the children and the mother.
The single expert observed that the father does not have a clear memory of the children and he similarly acknowledged that the children would not know him. The children were aged three and one respectively when they last had contact with the father. When the younger child was asked by the single expert about the father the child appeared confused and reported to the expert that he was not sure what his father looked like and did not know him. The younger child was ambivalent and unsure about whether he would like to see the father. The older child expressed to the single expert that his father had been abusive and comprehensively stated “there’s no way I can see him. He is a stranger. I want nothing to do with him.”
In circumstances where the children have no relationship with the father and any contact or relationship presents an unacceptable risk, it would not be in the best interests of the children for this reason alone and for the reasons discussed below to make any positive order for time between them and the father.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
(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;
(b) The nature of the relationship of the child with:
(i) Each of the child's parents; and
(ii)Other persons (including any grandparent or other relative of the child);
(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)To participate in making decisions about major long-term issues in relation to the child; and
(ii) To spend time with the child; and
(iii) To communicate with the child;
(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;
(d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) Either of his or her parents; or
(ii)Any other child, or other person (including any grandparent or other relative of the child);
(iii) With whom he or she has been living;
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) The capacity of:
(i) Each of the child's parents; and
(ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)The likely impact any proposed parenting order under this Part will have on that right;
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) Any family violence involving the child or a member of the child's family;
(k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) The nature of the order;
(ii) The circumstances in which the order was made;
(iii) Any evidence admitted in proceedings for the order;
(iv) Any findings made by the court in, or in proceedings for, the order;
(v) Any other relevant matter;
(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; and
(m) Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed generally below as a whole support the orders sought and made.
The older child was 12 years old and the younger child was 10 when interviewed by the expert. The older child expressed unequivocally that he would not wish to have contact with his father and could not envisage any time in which he would be happy to see the father. While the younger child did not share such a strong stance he did not indicate any desire to have contact with the father. While the older child did hold a strong position, limited weight is attached to the children’s views given the children’s ages and maturity levels, and the ages at which they last saw the father.
In relation to the mother’s capacity to provide for the needs of the children, the expert opined that the mother had a positive, strong relationship with the children and that she was very focused on their care and wellbeing.
In 2019 the younger child was diagnosed with ADHD, ODD, post-traumatic stress disorder, learning difficulties and emerging bipolar. Since diagnosis, the mother has ensured the younger child is receiving appropriate support and medical attention. Such support includes the younger child attending upon a counsellor on a weekly basis for behavioural therapy. The counsellor also provides support to the mother by providing her with appropriate techniques for her to use at home and communicates with the younger child’s school to assist with the implementation of his therapy. The younger child also sees a social worker on a roughly fortnightly basis to work on techniques related to the management of ADHD and attends the local disability service where he receives assistance with his schooling. The younger child sees his paediatrician on a monthly basis for the management of his medication, and on a more regular basis if any changes in his medication are needed.
The mother was diagnosed with anxiety, post-traumatic stress disorder and depression in 2011. She experiences hypervigilance and extreme fear as a result of her relationship with the father, however, she has sought appropriate treatment for the management of her anxiety including attending counselling, taking medication for the management of her anxiety and regularly attending upon her general practitioner. It is the expert’s opinion that the mother is a very capable person who is able to meet and prioritise the needs of the children. As an example, the expert points to a time early in the parties’ relationship when the child from the mother’s previous relationship was being undermined by the father and the mother acted protectively by relocating the child to reside with his paternal grandparents. Despite the behavioural problems experienced by the children, the mother has shown that she is an extremely capable parent.
It is the expert’s opinion that the father would not be capable of meeting the psychological or social needs of the children. The expert is of the view that the father suffers from a persistent depressive disorder with ongoing anger, irritability, hopeless feelings and dysphoria. The father holds a general perspective that life is unfair to him and that he does not have any ability to influence the events that happen to him in his life. The father was observed to have an attribution style of others mistreating him such that he is not responsible for the problems in his life. The expert showcases the father’s attribution style by highlighting the father’s belief that the man he killed was causing problems and it was not the father who was responsible for the killing. The expert opines that this attribution style would cause the father significant problems in being able to provide for the needs of the children in any respect other than their physical needs. When being interviewed by the single expert the father cried about the difficulties of not being able to see the children, however, the expert observed that these complaints related solely to the difficulties being experienced by him and showed the father was unable to consider the needs and perspectives of the children or the mother.
The orders proposed by the mother and supported by the ICL will see no change to the children’s current circumstances, given the children have not spent any time with the father since 2010 and have been in the sole care of the mother since this time.
The mother has been solely financially responsible for the children and the father has not provided any financial assistance for the care of the children.
The father can be taken from disengagement in the parenting proceedings to have abandoned his interest to participate in the children’s lives and has abandoned his responsibilities as a parent in all respects. His conduct, otherwise, should preclude him from doing so.
A consideration of the s 60CC factors supports the making of orders as sought by the mother and supported by the ICL as being in the best interests of the children.
Orders were accordingly made on 15 June 2021.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 2 July 2021
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