Auburton and McGuiness

[2013] FamCA 492

FAMILY COURT OF AUSTRALIA

AUBURTON & MCGUINESS [2013] FamCA 492

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing – Where the Father has been convicted of sexual abuse of one of the subject children – Where the Father has been convicted of using a carriageway to access child pornography – Where Independent Children’s Lawyer supports the final parenting orders sought by the Mother – Children to live with Mother – Mother to have sole parental responsibility– Father restrained from initiating contact with the children

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 26 Fam LR 237

APPLICANT: Mr Auburton

RESPONDENT: Ms McGuiness

INDEPENDENT CHILDREN’S LAWYER: Ms Miles

FILE NUMBER: BRC 5603 of 2012

DATE DELIVERED: 27 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 June 2013

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Carroll Fairon Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Feeney Family Law

Orders

It is ordered that

1. All previous Orders be discharged.

2. It is declared that the presumption of equal shared parental responsibility does not apply in respect of the children E born … February 1997, F born … December 1998 and G born … September 2000 (the children) and the Mother have sole parental responsibility in relation to the children.  

3. The children shall live with the Mother.

4. The Father be hereby restrained from initiating any form of communication, directly or indirectly, with the children.

5. The children be at liberty to communicate with the Father at any reasonable time in accordance with their wishes and the Mother shall facilitate the children’s access to any means of communications necessary for this purpose.  

6. The Mother shall ensure the children attend at Child Dispute Services, level 3 of the Brisbane Registry of the Family Court of Australia on a date to be advised so that a Family Consultant can explain these Orders and reasons for judgment to the children.

7. The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Auburtin & McGuiness has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5603  of 2012

Mr Auburton

Applicant

And

Ms McGuiness

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children E born in February 1997 who is now 16 years of age, F born in December 1998 now aged 14 years and G born in September 2000 now 12 years of age. The Applicant Father, Mr Auburton (“the Father”), filed an Initiating Application on 26 June 2012. The Respondent Mother, Ms McGuiness (“the Mother”), filed a Response to the Father’s Initiating Application on 18 September 2012 and an Amended Response on 20 May 2013.

2. Proceedings between the Mother and Father have been before this Court and the Federal Circuit Court (as the Federal Magistrates Court is now known) in various forms for a period of some 12 years since early 2001. The Mother appeared at the hearing on 14 June 2013 seeking, above all, finality of the proceedings.  Her legal representative noted at the beginning of the trial that the Father has displayed a history of commencing proceedings and, upon receiving a Family Report which is adverse to his case, filing a Notice of Discontinuance.

3. As long ago as 28 March 2002 Deputy Registrar McGrath made final Orders that the children live with the Mother. No Orders were made in respect of contact (as it then was) or time or communication with the Father.  These Orders remained operative at the stage of the current hearing. On 13 June 2006 Senior Registrar Dittman made interim Orders which allowed for there to be some connection between the Father and the children by way of a therapeutic process to be facilitated by Mr A. Those interim Orders also made provision for the Father to be able to send birthday and Christmas cards to the children. Mr A, however, released a report on 24 November 2006 which recommended that such supervised contact should not occur stating that he was ‘…not prepared to subject the children to the emotional trauma that would have taken place…’ Consequently, the process did not continue.

4. Federal Magistrate Lapthorn (as his Honour then was) made interim Orders on 24 September 2012 in these current proceedings restraining the parties from publishing any material filed or used in the proceedings and restraining the Mother from physically disciplining the children.

5. Pursuant to the Order for independent representation, Ms Miles of Feeney Family Law has acted as the Independent Children’s Lawyer in these proceedings within the meaning of s 68L of the Act. Ms Miles represented the interests of the children in previous proceedings between the parties. In the Order of 24 September 2012, it is noted that the Mother had requested that Ms Miles be re-appointed as Independent Children’s Lawyer. The Father opposed such appointment.

6. The matter was set down for “callover” on 14 June 2013. At callover, the Mother sought for the matter to be heard on an undefended basis pursuant to Registrar Brook’s Order of 22 May 2013 which provided that if the Father failed to comply with the trial directions that there would be at liberty to seek orders on an undefended basis. The Father had not complied with Registrar Brooks’ Orders and neither the Father nor a legal representative of the Father appeared at callover. Consequently, the matter was heard the same day on an undefended basis.

Procedural History of the Father

1. The Father commenced the current proceedings by way of his Initiating Application filed on 26 June 2012. The Father was aware of, and was served with, the Mother’s Response to Initiating Application filed 18 September 2012.

2. The Father was represented in the proceedings at all court events until the filing of his Notice of Discontinuance on 5 April 2013. 

3. On 20 May 2013, the Mother filed an Amended Response and supporting affidavit. In that affidavit, the Mother set out the history of the proceedings. At paragraph 15, the Mother described the situation she was placed in as a result of the Father’s past procedural history, deposing:

   …I was left in the position where I had a Final Order from 2002 and an Interim Order from 2006 and it is not clear as to whether or not the father’s behaviour, where he continues to track down the children and influence them is a breach. I seek those Orders which are therefore set out in my Response for those reasons which I have previously deposed and which are outlined in the Family Report.

4. At  paragraph 3 of the section titled “SERVICE” of the Mother’s Case Outline dated 14 June 2013 which was handed up to me at the trial, the Mother’s solicitor states:

   …[t]he mother’s Amended Response were [sic] filed and served upon the father’s Solicitor still acting and on the record. The father’s solicitor acknowledged receipt of those documents and confirmed they had been sent to his client. 

5. On 22 May 2013 the matter came before Registrar Brooks for directions. The Father did not attend the hearing. Registrar Brooks ordered that, by 7 June 2013, the Father file and serve any Reply to the Mother’s Amended Response and his updated affidavit of evidence in chief. Though Registrar Brooks made it clear during the hearing that the Father’s solicitor was still on the record, she ordered that, if the Father failed to file his evidence in chief or comply with other trial directions, the Mother would be at liberty to seek orders on an undefended basis. 

6. The Father failed to comply with the Orders of Registrar Brooks of 22 May 2013. On 30 May 2013, a Notice of Ceasing to Act was filed by the Father’s then solicitors, Richard Gray & Associates, on the Father’s behalf.

7. On 6 June 2013, the Father filed an affidavit in which he acknowledged the filing of his Notice of Discontinuance in respect of his whole application, and then went on to state ‘…[d]ue to personal reasons I have no further interest in pursuing my application for any contact of the children…’ The Father then goes on to depose:

   ...

   4.   I understand there are no further proceedings on the discontinuance of my application.

   5.   I was unaware of any directions hearing set down on the 22 of May 2013.

   6.   I have nothing to respond to, as I have not been served or received any documentation filed by the Respondent dated on the 20 May 2013, as stated in the order before Registrar Brooks on the 22 of May 2013.

   7.   I do not understand such a late filing by the respondent.

   8.   I have an organised travel set for a period and I will not be available to have the opportunity to fairly respond or give evidence.  

8. Pursuant to the Order of Registrar Brooks on 22 May 2013, the matter came before me at callover on 14 June 2013. At callover, in the absence of an appearance by the Father or a representative on his behalf, pursuant to Rule 11.02(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the matter was heard on an undefended basis on the same day.

Opportunity to be Heard

1. The rules of procedural fairness and natural justice need to be considered before determining the matter on an undefended basis. Within the rule of procedural fairness lies the indispensible requirement of the Court’s system of justice that a party being affected by a decision have the opportunity to be heard. As highlighted by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.

2. As was emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision-maker to actually hear the party. As Kirby J stated in Allesch v Maunz (supra) (at [38]):

   …Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is all that is provided. Affording the opportunity is all that the law and principle require.

   (emphasis added)

3. As was submitted by the Mother in her Case Outline, the Father is aware of the Orders sought by the Mother, and he has made it clear that he does not wish to participate further in the hearing of the matter.

4. The Father’s legal representative appeared by telephone at the directions hearing before Registrar Brooks on 18 March 2013. At this hearing, Registrar Brooks set the matter down for a further directions hearing on 22 May 2013. Further, as set out in Exhibit “ELF-3” of the affidavit of the Mother’s solicitor, Ms Fairon, filed 13 June 2013, an email was sent from Ms Fairon to the Father’s personal email address at 4:51pm on 21 May 2013 stating:

   …Dear [the Father’s first name]

   …

   We confirm that we are the solicitors assisting [the Mother].

   Your previous solicitors have now advised that they are no longer acting for you and, on that basis, we attach by way of service an Amended Response and Affidavit filed by our client on 20 May 2013.

   We confirm that the matter is listed for directions hearing tomorrow, 22 May 2013 at 12:45pm.

   …       

   (emphasis added)

5. Consequently, I do not accept the Father’s evidence at paragraph 5 of his affidavit of 6 June 2013 where he stated that he was ‘…not aware of any directions hearing set down on the 22 May 2013…’

6. I am satisfied that the Mother’s Amended Response and affidavit filed 20 May 2013 were delivered to the Father in an electronic or physical form on or before 29 May 2013. In support of this, I rely on the affidavit of Ms Fairon which outlines that:

   a)on 21 May 2013, the Mother’s solicitors emailed the Amended Response and affidavit to Richard Gray & Associates (Exhibit “ELF-1”);

   b)on 21 May 2013, Richard Gray & Associates emailed the Mother’s solicitors to advise them that they no longer acted for the Father (Exhibit “ELF-2”);

   c)on 22 May 2013, the Mother’s solicitors emailed the documents to the Father directly (Exhibit “ELF-3”);

   d)on 22 May 2013, the Mother’s solicitors again emailed the documents to Richard Gray & Associates, stating that, during the directions hearing before Registrar Brooks that day, it was noted that Richard Gray & Associates were ‘…still listed on the record as legal representative for the applicant…’ As a result of this, the Mother’s solicitors stated that they would ‘…continue to communicate with [Richard Gray & Associates] and serve all necessary documents upon [Richard Gray & Associates] until such time as [the firm] formally withdraw [itself] from the record.’ (Exhibit “ELF-4”); and

   e)on 29 May 2013, Richard Gray & Associates advised the Mother’s solicitors by email that they ‘…forwarded those documents to [the Father] and that [Mr Gray was] currently arranging the filing of a formal Notice of Ceasing to Act with the Court.’ (Exhibit “ELF-5”).

7. On the basis of the Father’s affidavit sworn on 5 June 2013 and filed on 6 June 2013, in which the Father swears that he had not received any documentation filed by the Mother on 20 May 2013 as required ‘…in the order before Registrar Brooks on the 22 of May 2013’, I am satisfied that the Father received the Order of Registrar Brooks made on 22 May 2013 on or before 5 June 2013.

8. I am satisfied that the Father, having been in receipt of the Order of Registrar Brooks of 22 May 2013, was aware that the matter had been listed for callover on 14 June 2013.

9. I am satisfied that the Father, having received Registrar Brooks’ Order of 22 May 2013 on or before 5 June 2013 (when his affidavit filed 6 June 2013 was sworn), was aware of the trial directions which he was required to comply with by 7 June 2013. I am satisfied that the Father was aware that the consequence of his non-compliance with Registrar Brooks’ direction for him to file and serve his evidence in chief or any other trial directions was that the Mother would be at liberty to seek orders on an undefended basis given that this was expressed in the Order of 22 May 2013.

10. I am satisfied that the Father, by failing to comply with the directions of Registrar Brooks, and choosing to file an affidavit in which he acknowledged the filing of his Notice of Discontinuance and stated that he had ‘…no further interest in pursuing [his] application for any contact of the children…’, chose not to participate in the proceedings. This is despite his statement at paragraph 8 that he has ‘… an organised travel set for a period and [he] will not be able to have to opportunity to fairly respond or give evidence.’

11. I am satisfied that the Father has had the opportunity to be heard and I consider that it is in order to proceed to hear and determine the Mother’s application for parenting orders on an undefended basis.

12. I am fortified in that conclusion by the fact that the children’s interests in these proceedings are independently represented by an experienced Independent Children’s Lawyer who has diligently gathered relevant evidence and supports the orders to be made on a final basis.

Factual Background

1. The Father is 43 years old, having been born in 1970. The Mother is 43 years old, having also been born in 1970. The parties were married in April 1996, separated in early 2000 and were divorced in October 2005. The children have lived with the Mother since separation. The Mother married Mr McGuiness in September 2006 and together, they have a seven year old child. While the Father has re-partnered, as at the date of the Family Report interview in March 2013, he and his partner had no plans to live together.

2. As I have noted above, there have been proceedings between the parties in respect of parenting since 2001. I rely on the uncontested material of the Mother and the Independent Children’s Lawyer in outlining the details of the background between the parties prior to the Father’s Initiating Application of 26 June 2012.

3. Interim Orders were made by Registrar Wilkie on 11 April 2001 for the children to live with the Mother. These Orders did not make provision for the Father to have contact with the children.

4. The Father has spent limited time with the children since 2001/2002 when he was charged with sexual offences in relation to the eldest child of the relationship, E, and also the Mother’s child from another relationship, H. He was later convicted of these offences and was imprisoned from May 2002 to May 2003.

5. On 28 March 2002, final Orders were made for the children to live with the Mother and for any further applications for the children’s issues to be removed from the list of pending cases.

6. According to the Family Report prepared by Mr B filed 13 March 2013, the Department of Child Safety became involved with the children in 2003. Pursuant to an Order made, the children had spent some months living with the maternal grandmother and in September 2004, a twelve month Child Protection Order was issued in respect of the children. This order required the Mother to not bring the children into contact with the Father by any means.

7. On 18 October 2005, the Father filed an Application in a Case for the purpose of re-enlivening the parenting arrangements.

8. A psychiatric report was prepared by Dr C and was released on 6 June 2006.

9. On 13 June 2006, the interim Order of Senior Registrar Dittman was made which, as detailed above, made provision for there to be supervised contact between the Father and the children. However, at the insistence of Mr A, this process did not proceed.

10. The Father then filed a Notice of Discontinuance in July 2007 and as submitted by the Mother at paragraph 10 of her Case Outline document, the Mother was ‘…left with various interim orders and no set position as to whether the children were to spend time with the father, though it was clear that there would be no unsupervised time.’

11. On 23 January 2009, the Father was sentenced to a period of 18 months imprisonment for the offence of using a carriageway to access child pornography. The Father’s gaol term was to be suspended after he had served four months. 

12. In late 2010, the Father began to communicate with the children by electronic means without the Mother’s knowledge. As noted by the Mother in her material, this was the only substantial contact that the children had had with the Father since 2001.

13. In 2011, there were communications between G and the Father by way of private messages on Facebook. Their communication was in relation to what G would like for her birthday.

14. F was the first of the children to meet with the Father. F did not respond to the Father’s initial attempt at contact over Facebook in late June 2010 when he established contact with E. However, in April 2012, contact between F and the Father was established over Facebook. When asked about this in the family report interviews, F stated that he was motivated to enter into contact with his Father because he “[g]ot interested.”

15. F spent time with the Father on two occasions without the Mother’s knowledge. On the first of these occasions, in April 2012 the Father collected F from Suburb J Train Station at 9:00am on a school day, and they spent the day together at Southbank and in Brisbane city. The following week, F met the Father and E at Suburb J shopping centre after the Father had collected E from a group meeting at Suburb D for “Program I”, an early intervention programme for children truanting.  At the time of the Family Report, there had been limited contact between the Father and F since the occasion at Suburb J. This contact was via Facebook.  

1. The Father first made contact with E over Facebook in late 2010 and the two exchanged a series of private messages over a number of weeks. When asked by Mr B in the family report interview why she wanted to reconnect with her Father, E replied that she was curious about him. According to the Father’s family report interview, E’s attitude was initially positive but then changed and she began expressing mistrust and making comments about him not being there as a father. E informed the Father that she was going overseas and would need her passport signed. The Father then began messaging the Mother via Facebook, initially in relation to F and E travelling overseas for a school trip and the cost of such a trip. These messages developed into conversations about the children’s development, and the Mother also began to speak at great lengths about the financial strains that she was under in raising the children. During these conversations, though the Mother became aware that the Father had been messaging E, she still informed the Father of what E would like for her birthday, and accepted the Father’s gift of an iPhone which he mailed directly to the Mother’s home.

2. During the exchange of messages between the Father and E via Facebook, E informed the Father that her stepfather had slapped her across the face. At the insistence of the Mother, communication between the Father and E ceased for some time, but was later revived.

3. E spent time with the Father on five occasions. On the first of these occasions in April 2012 the Father collected E from a “Program I” group meeting at Suburb D. The Father then took E to Suburb J shopping centre, where they met with F. On the next three occasions of contact, the Father would pick E up from Suburb D at around 1:00pm on a Friday and they would spend approximately two hours together at Suburb J shopping centre. The Father would then drop E off at a bus stop in Suburb K. As was noted in the Family Report, the Father later discovered that E was relying on the Father to drop her to Suburb K so that she could meet up with her boyfriend.

4. On the final occasion that E and the Father met, the Father collected E after she had returned from a school camp. By this time, the police had been alerted about the contact between the Father and E and on the same day, police attended the Father’s home to perform a welfare check and to see whether E was in the home. In June 2012, charges were laid against the Father for his failure to comply with his reporting obligations as a registered sex offender. In respect of this, the Father told the family report writer that these charges were dealt with and dismissed in September 2012.

5. The Father proceeded to send E a letter dated 5 June 2012 which refers to the police intervention in respect of the final occasion of contact between E and the Father. In this letter the Father also encourages E to fully support him in his decision to ‘…proceed with an application, through the family courts, for [his] rightful contact of [the] children, as [their] dad…’ He further stated that ‘…as the older child in the family [E would] need to represent both [F] and [G] also, if they also [were to] choose to have contact with [the Father].’ The Father also provided a list of advice to [E] within which he stated to the child:

   …[y]ou need not to be scared of your mother’s threats, manipulation ect [sic], and take a stance for yourself, and for the others in what you believe, will be right, and beneficial for your wellbeing. (This is not a case of disrespecting your mother [E], it is what you feel is best for you [F] and [G]). Remember what I told you [E], Always be strong and speak out with what you think and feel. You are a very strong minded person and you stand up for what you believe is right and wrong.(You will always be protected and supported by the law) if your mother chooses to kick and scream.

   …

   This letter is marked as Exhibit “DJMcG-8” of the Mother’s affidavit filed 18 September 2012.

6. In response to the Father’s Initiating Application filed 26 June 2012, Federal Magistrate Lapthorn ordered that the parties be restrained from publishing any material filed or related to the proceedings, that the Mother be restrained from physically disciplining the children and that she use her best endeavours to ensure that no other person do so either. Pursuant to the Order, the file was also transferred to the Magellan List and an Independent Children’s Lawyer was to be appointed. His Honour made no order in respect of there being contact between the Father and the children.

7. On 31 October 2012, Registrar Brooks ordered by consent that the Mother not discuss with the children the proceedings relating to the Father or any matters pertaining to the Father.

8. On 4 and 5 March 2013 the parties and the subject children attended Family Report interviews with Mr B. The Family Report was filed on 13 March 2013.

9. At the time of the Family Report interviews, the Father had just moved into a house he had purchased in Suburb L. Prior to that, he had been living at his Mother’s home in Suburb M for several years.

10. The Mother has no contact with the Father. The Father continues to send gifts and cards to the children for their birthdays and Christmas; the Mother checks these items before passing them on to the children. In the past, she has not passed on cards from the Father to the children where the cards have contained unkind comments about the Mother.

Statutory Framework 

1. In her Amended Response the Mother seeks parenting orders namely, sole parental responsibility for the children, that the children live with the Mother, that the children spend no time with the Father, and that the Father be restrained from initiating any form of communication, directly or indirectly, with the children. The Mother also seeks an order that all previous Orders and undertakings be discharged. The Independent Children’s Lawyer supports the orders sought by the Mother.

2. Pursuant to the Father’s Initiating Application, the matter of with whom the children are to live has not been in dispute during these proceedings. The Father sought final orders for equal shared responsibility, and for fortnightly weekend contact with the children on an unsupervised basis, as well as half of school holidays and special days. He also sought an order for telephone contact with the children three times a week. As already noted, the Father has wholly discontinued his application for such orders.

3. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

4. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (1) The objects of this Part are to ensure 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 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.

5. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

6. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. The primary considerations set out in section 60CC(2) 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. Because these proceedings were commenced after 7 June 2012, the Court must place greater weight on (2)(b) than on (2)(a) in the event that there is any inconsistency in applying the subsections as a consequence of recent amendments to Part VII.

7. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to 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 presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and 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. (s61DA(4) of the Act).

8. If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents.[1]

   [1] Section 65DAA.

9. In the current proceedings, even when the Father’s Initiating Application was extant, it was undisputed that the children should live with the Mother. The only issues agitated by the Father in his Initiating Application were parental responsibility and him communicating and spending time with the children.

10. In the face of the Mother’s Amended Response, the only parenting orders to which attention needs to be directed, having regard to the best interests consideration, is the question of the Mother having sole parental responsibility and there being an order for no time or communication with the Father. I note here that the Mother’s orders sought are wholly supported by the expert opinion of Mr B. 

S 60CC considerations

1. The criminal offences that the Father has been convicted of resonate with many of the best interests considerations set out in s 60CC of the Act.

2. In light of the Father’s convictions (for the sexual abuse of the children, E and H, and secondly, for his use of a carriage way to access child pornography) and his prison sentences, I am satisfied that there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse. In support of this, I draw upon the expert evidence of Mr B, who at paragraph 100 of the Family Report stated:

   …The Father is, in fact, a figure of significant mistrust on account of his history of sexual offending against children, the intervention of the Department of Child Safety in their lives and more recently, the involvement of the police.

3. In the expert opinion of Mr B, which I accept, there should be no contact between the Father and the children. Mr B provides reasons for this view at paragraphs 106 of the report where he states:

   …On the structural history, and the longer term risks to the children in having a substantive connection to their father, the risk of destabilisation, in my view, outweighs any benefit to the children of that connection. Such an outcome, should however be properly and independently explained to the children….

4. I find that the Mother has been the primary carer of the children since their respective births and that the Father has had no substantive time with the children or a relationship with them for over twelve years in circumstances where the Father has been imprisoned for sexual offences during some of this time.

5. The expert evidence reflects (as does the evidence as a whole) that it cannot be said that the children currently have a meaningful relationship with the Father. Moreover, I find on the evidence that it is more likely than not that there is no realistic prospect of any meaningful relationship between the children and the Father in the sense of establishing or maintaining any positive relationship.

6. For the reasons stated above, there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse.

7. In the circumstances of the case and in light of the weight which I must attach to that need, this consideration outweighs any limited benefit that the children may gain from having a meaningful relationship with the Father. Mr B, at paragraph 105 of his Report, emphasised that in light of the Father’s lack of insight into ‘…how the antipathy and mistrust he has for the mother may serve to destabilise things in her household...’ the Court should place a greater emphasis on the preservation of the children’s relationship with the Mother. This antipathy and mistrust was clearly evident in the Father’s letter to E detailed above in which he encouraged the child to not be ‘…scared of [the] mother’s threats, manipulation ect [sic]’ and in which he assured the child that she would ‘always be protected by and supported by the law… if [the] mother chooses to kick and scream.’   

8. I find, in accordance with the view of Mr B, that the benefit of the children having a relationship with the Father, if there is indeed any in the circumstances, is outweighed by the risk at which the children would be placed if they were subjected to communication or time with the Father.

9. In terms of the views expressed by the children, E, F and G are now aged 16, 14 and 12 respectively. Mr B interviewed all three children for the purpose of his Family Report. As detailed by Mr B, none of the children have expressed views indicating a desire to have contact with the Father in the future. All three children have a limited emotional connection with the Father as a result of the lack of contact they have had with him.

10. E is 16 years old and is thus at an age where she would be mature enough to decide for herself whether she wishes to have a relationship with the Father. Mr B observed that E’s agenda at the time of connecting with her father was slightly opportunistic but also noted that E was able to achieve more of a connection with her Father than F and G. However, Mr B ultimately stated that E ‘…does not express any desire to have a connection with her Father.’

11. F will be 15 years of age in September and is thus at an age where he would be mature enough to decide for himself whether he wishes to have a relationship with the Father. F acted upon his curiosity about his Father by initiating contact with him. However, as observed by Mr B at paragraph 102 of his report, F’s conclusion from this contact was that his Father was negative and divisive when it came to his Mother. Mr B concluded that ‘…[F] appears to have lost interest in a connection with his Father at this stage.’

12. Mr B observed that G has minimal emotional connection with her Father owing to the circumstances detailed above. Following his interview with G, Mr B concluded that she ‘…does not offer views which would lead me to conclude that there is any loss to her by virtue of the existing structure or that there will be any loss her [sic] if there is no substantial connection with [the Father] in the future.’

13. As to the nature of the children’s relationships, on the evidence before me, it appears the children have a close and loving relationship with the Mother and an overall positive relationship with her husband, Mr McGuiness.

14. G, in particular, refers to Mr McGuiness as “Dad”, though she is aware that Mr Auburton is her biological father.

15. Issues have been raised in the affidavit material about Mr McGuiness physically disciplining the children, and in particular E, whom he appears to have slapped. In response to this, a restraint was placed on the Mother from physically disciplining the children; this restraint also required her to ensure that no other person do so. On the evidence before me, this Order has not been contravened.

16. As noted above the children have little if any relationship with the Father and nor, it appears, do they wish to have one. Furthermore, Mr B expressed his concerns that the Mother’s relationship with the children would be likely jeopardized were the children to establish a relationship with the Father, in light of his tendency to speak ill of the Mother to the children. This view is detailed at paragraphs 106 and 107 of Mr B’s report, where he states:

    … I am also of the view that the father at this stage should be prevented from sending cards and letters to the children. For him to do so, only sets up somewhat opportunistic transaction with the children. Further, I am concerned that the father is incapable of doing this in such a way that protects the children from inappropriate commentary about their mother. Present giving, sets the mother up as the censor and gatekeeper.  

    107. I am not of the view that severing the connection between the children and their father at this stage will see the children suffer any loss or loss of opportunity on account of the limited capacity and vulnerability of the father to care for them and meet their needs. I am of the view that such a boundary is necessary as it appears that the father’s brief interactions with the children causes more instability to them, over any more positive outcome.

17. An example of the negative outcome of the Father’s interaction is the upset which was caused by the Father when he informed G via a private Facebook message that there was a possibility that he was not her biological Father. This caused great upset to the child and to her relationship with the Mother given his apparent agenda to disrupt those relationships.

18. I find that there is a strong and stable relationship between the Mother and the children and any relationship between the Father would only jeopardise the children’s relationship with the Mother.

19. The Father’s conduct in engaging in contact with the children without the Mother’s knowledge and in contravention of Orders that he not have any contact with the children displays a negative attitude to his responsibilities of parenthood. Further, the Father has displayed an inability to speak objectively about the Mother and not let his own views about her be known to the children. The effect of such views being imparted onto the children will, as noted by Mr B, only destabilise the relationship with the Mother.

20. Resonating with many of the s 60CC considerations is the fact that on the one hand the Mother has throughout the lives of these children been their primary carer essentially single-handedly whilst in contrast the Father has had very little input into their lives and his role was dramatically affected by his criminal conduct involving E at the outset of the period under discussion.

21. The contrast of the Mother on the one hand fulfilling her parental responsibilities with that of the Father on the other who has essentially wholly failed to do so could hardly be more stark.

22. Specifically, I find that the Mother has participated in making decisions about major long-term issues in relation to the children and obviously spending time with and communicating with them whilst the Father has not. I find that the Mother has fulfilled her obligations to maintain the children whilst the Father has not. I find that the Mother has demonstrated ample capacity to provide for the needs of the children including their emotional and intellectual needs whilst the Father has demonstrated no such capacity.

23. I find that the Mother has demonstrated a positive attitude to the children and to the responsibilities of parenthood whilst the Father has abjectly failed to do so.

1. I am satisfied that 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 children. I find that the orders sought by the Mother and agreed with by the Independent Children’s Lawyer have the best prospects of bringing about finality in terms of there being any further proceedings concerning the children and that such an outcome meets their best interests.

2. I find that the Mother’s parenting capacity and relationship with the children would be compromised by orders for time and communication between the children and the Father and that would be contrary to the children’s best interests.

3. I am satisfied that it is in the best interests of these children as they move to adulthood that there not be any interruption or diminishment of the sense of identity and security they obviously derive from their relationship with the Mother. I am satisfied that it is more probable than not that the Father, given the opportunity, would act to interrupt or diminish that sense given his conduct as referred to by Mr B and by the Mother, whose evidence I accept.

4. If any of the children elect to communicate with the Father that is a matter for them given their ages and stages of development but I do not propose to impose upon the children any orders for time and communication.

Parental Responsibility

1. In addition to the consequences that flow from the criminal convictions of the Father with respect to the s 60CC factors addressed above, the Father’s criminal conduct concerning E also results in the conclusion that there are reasonable grounds to believe that the Father has engaged in “abuse” within the meaning of s 61DA(2) such that the presumption of equal shared responsibility does not apply.

2. I am satisfied that it is in the children’s best interests that the Mother have sole parental responsibility. The Mother has been essentially exercising sole parental responsibility for the children since at least the parties’ separation in early 2000.

3. In light of the long history of these proceedings which has been referred to, I am satisfied that it is necessary that final orders in respect of parenting be made and that consistent with the best interests of the children overall that means that the Mother ought have sole parental responsibility for the children and that the Father not be permitted to communicate with them. I therefore make the orders set out at the commencement of these reasons.

4. Consistent with the recommendation of the expert Mr B, I propose to order that these Orders and reasons for judgment be made available to a Family Consultant for the purpose of them being explained to the children. That is, the children ought be aware that the Court has concluded that it is not in their best interests for there to be time and communication with the Father but if they in future choose to have any time or communication with the Father that is a matter for the children.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 June 2013.

Associate: 

Date:  27 June 2013