AUDEN & FIELDING
[2017] FamCA 764
•27 September 2017
FAMILY COURT OF AUSTRALIA
| AUDEN & FIELDING | [2017] FamCA 764 |
| FAMILY LAW – CHILDREN – Best Interests of the Child – Undefended hearing – Where the father has discontinued his Response – Where there are allegations the father sexually abused the child – Where two Joint Investigation and Response Team investigations substantiated the allegations of sexual abuse – Where the father has been named a person causing harm by the Department of Family and Community Services – Where the father has spent no time with the child for over two years – Where the child has expressed fear of the father – Where there are concerns as to the child’s mental health – Where the child is receiving counselling – Where the mother seeks an order for the child’s surname to be changed – Where it is appropriate to make orders as sought by the mother. FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has discontinued his Response to the mother’s Initiating Application – Where the father has withdrawn from proceedings – Where it is appropriate for the matter to proceed to undefended final hearing. |
| Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5) Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 68B, 68C, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Deiter v Deiter [2011] FamCAFC 82 | ||
| APPLICANT: | Ms Auden | |
| RESPONDENT: | Mr Fielding |
| INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
| FILE NUMBER: | PAC | 3626 | of | 2015 |
| DATE DELIVERED: | 27 September 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 15 June 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Soden Legal |
| SELF-REPRESENTED RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sarah Bevan Family Lawyers |
Orders
That the Applicant Mother have sole parental responsibility for the child B born … 2004 (“the child”).
That the child live with the mother.
That the father have no contact with the child.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father be and is hereby restrained from entering or remaining in any place of residence or education of the child, harassing, stalking, intimidating or otherwise approaching or contacting the mother and the child.
In the event the father does not comply with Order (4) and a police officer believes, on reasonable grounds, that the injunction has been breached then such police officer is authorised to arrest the father without warrant pursuant to the provision of section 68C of the Act.
That the mother is to do all things and sign all documents necessary to change the surname of B to ‘Auden’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form ‘B Auden’.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Auden & Fielding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3626 of 2015
| Ms Auden |
Applicant
And
| Mr Fielding |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 13 year old B (“the child”), the child of Ms Auden (“the mother”) and Mr Fielding (“the father”).
The parents were married in 2003 and separated on a final basis in September 2004. The parties’ divorce was finalised in 2008.
On 13 December 2016 the father withdrew from the proceedings and on 6 January 2017 he filed a Notice of Discontinuance.
In her Amended Initiating Application filed 17 January 2017 the mother seeks orders that she have sole parental responsibility for the child, that the child live with her and have no contact with the father. She also seeks orders restraining the father from contacting the her and the child, that the child’s surname be changed from “Fielding” to “Auden” and that she be allowed to travel internationally with the child.
The father’s non-attendance
On 28 October 2005 Parenting Orders were made by consent in Suburb C Local Court that provided for the parents to equally share parental responsibility for the child, the child live with the mother and spend time with the father from 5pm Friday until 5pm Saturday each week and half the school holidays.
Following the mother ceasing the father’s time with the child in April 2015 she initiated proceedings in this Court on 24 July 2015.
On 24 July 2015 the matter came before the Registrar who recommended the matter not be included in the Magellan Program[1].
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of Community Services with the family.
On 30 July 2015 the father filed a Contravention Application and on 21 August 2015 he filed a Response to the mother’s Initiating Application seeking that he equally share parental responsibility for the child with the mother and that the child live with the mother and spend alternate weekends from the conclusion of school on Friday to the commencement of school on Tuesday with him.
On 25 August 2015 the parties were ordered to attend on a Family Consultant for the purposes of the production of a Child and Parents Issues Assessment and an Independent Children’s Lawyer (“ICL”) was appointed.
On 10 October 2015 the parties agreed that the Consent Orders dated 28 October 2005 be suspended, the child live with the mother and spend time with the father at a shopping centre for two hours each Saturday with changeovers to be facilitated by the paternal grandmother.
On 28 October 2015 the parents and the child were interviewed by a Family Consultant for the purposes of a Child and Parents Issues Assessment and the subsequently produced Memorandum was released to the parties on 30 October 2015.
On 2 February 2016 the matter came before me for the first time for the first day of a Less Adversarial Trial (“LAT”). On that date the parties agreed to undergo family therapy if the ICL and the child’s treating medical professionals determined such therapy would be in the child’s best interests. The father’s Contravention Application was withdrawn and dismissed.
By 13 July 2016 family therapy had not commenced and the matter was relisted at the request of the ICL with a view to appointing a Single Expert.
On 5 September 2016 the matter was referred to the Magellan Registrar for inclusion in the Magellan List. On that date the following notations were made by the Court:
A.The parties believe that on 10 December 2015, interim orders for the child spending time with the father were made. No such orders have been made. The father has not seen the child since April 2015.
B.Family therapy which was agreed to in principle on 2 February 2016 did not proceed. Consent orders were not provided to chambers as anticipated in the orders on 2 February 2016.
C.A JIRT[2] investigation has recently been conducted.
D.The parties have not filed any application with respect to interim orders in light of the above events
[2] JIRT is the Joint Investigation and Response Team, made up of officers from police and Community Services and investigates allegations of serious child abuse.
On 16 September 2016 a Magellan Report was ordered.
On 7 October 2016 it was noted by the Registrar that the father was pressing orders for time with the child.
The Magellan Report was released to the parties on 10 November 2016.
On 13 December 2016 the father withdrew from the proceedings. The mother was directed to file an amended application, consolidated affidavit and outline of case with respect to an undefended hearing on 7 February 2017. Interim orders were made for the mother to have sole parental responsibility and for the child to live with her and spend no time with the father.
On 7 February 2017 it was noted that subpoenas issued to the Department of Family and Community Services (“the Department”) and the Joint Investigative Response Team (“JIRT”) had not been returned and the ICL was directed to make enquiries about those documents. The mother was ordered to file a report from the child’s treating psychiatrist in regards to the child’s diagnosed mental health condition and treatment.
On 15 June 2017 the mother sought to rely on a further affidavit filed 14 June 2017 in regards to the child’s mental health. The ICL also sought to rely on further material produced by JIRT (Exhibit 5). No further submissions were made and judgment was reserved.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(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.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[3], and to the principles for the conduct of child-related proceedings[4], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father. The father has discontinued his Response to the mother’s Initiating Application and no longer seeks any orders in these proceedings.
[3] [2014] FamCAFC 14
[4] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, the father’s material will not be read.
Context
The mother, who is 41 years of age, has three children from a previous relationship aged approximately 19, 18 and seven.
The father, who is 48 years of age has seven children from various previous relationships.
The parties were married in 2003. The child who is 13 was born in 2004. The parties separated when the child was two months old in September 2004.
The mother alleges that the father verbally and physically abused her during their relationship and deposes to the father pushing her, screaming in her face and destroying furniture in the house.
Following consent orders being made in 2005 the mother deposes to the father often failing to comply with those orders and changing the schedule by which he spent time with the child to suit himself.
In 2012 the child was diagnosed with attention deficit hyperactive disorder (ADHD) by a paediatrician following the child having fallen behind in school, becoming violent and destructive, lashing out at his mother and half-siblings and refusing to sleep at night.
The mother deposes to the child often expressing a concern that he will be taken away from the mother by the father. The mother also deposes to the father telling her that the child would be coming to live with him.
The mother deposes in her affidavit to the child pretending to be sick and telling office staff at his school that he is afraid of his father.
The mother further deposes to the child constantly calling his father and becoming quite distressed when unable to do so, telling the mother that the father would be mad at him.
Following one phone conversation between the child and the father on 25 March 2015 the mother deposes to the police arriving at her home and checking on the child. The officers allegedly told the mother that the father had informed the police that the child had told the father he had been stabbed in the arm with a fork.
On 24 April 2015 the father called the mother at 4.30pm to indicate he was coming to pick the child up. The mother deposes to the child becoming destructive and him kicking the letterbox and smashing some garden ornaments. The child told the mother that he was afraid of the father who had a bad temper and asked her to help him clean up the mess before his father arrived.
At 9pm that night, after the child had left the mother’s home with the father, the mother was served with an Apprehended Violence Order (“AVO”). Police who told the mother that they had been informed she had hit the child with a coat hanger, that there were no parenting orders in place and that she was not the child’s biological mother.
The matter was reported to the Department of Family and Community Services (“the Department”) who closed the matter and conducted no further assessment.
The mother called the police on 25 April 2015 and was told that the terms of the AVO would be explained to her if she attended at the police station in person. The mother did so and was informed that the father had told police the child was too scared to return to the mother’s care. She was further informed that the police had spoken to the father’s ex-wife, Ms D (“Ms D”), who informed them that the Department was investigating sexual abuse claims in relation to the father’s 16 year old daughter, E.
The mother subsequently called Ms D who told her that E had been sexually abused when she was four years of age while in the father’s care and that the Department had re-opened the investigation into the abuse allegations. Ms D also informed the mother that the father had six other children.
The sexual abuse allegations made by E against the father were not substantiated.
On 28 April 2015 the child was returned to the mother’s care by the school following the mother’s solicitor at the time speaking to the principal. The child told the mother that the father had made him lie to the school.
From that date until 1 May 2015 the child stayed with his maternal grandmother. The mother deposes to the child locking the doors and closing the curtains saying he was afraid of his father. The child also disclosed to the mother that he sometimes saw a man standing in his room at night but he was unsure if this man was real or not or whether it was his father.
In June 2015 the child’s paediatrician revised her diagnosis of the child and indicated to the mother that she believed the child had anxiety and not ADHD.
On 28 October 2015 the parties and the child attended on a Family Consultant for the purpose of a Child and Parents Issues Assessment.
In the subsequently produced Memorandum the Family Consultant reported that the father’s time with the child was not occurring despite consent orders.
The Family Consultant relevantly reported the following after interviewing the child:
[The child] presented as a polite, friendly and thoughtful boy. He said that he had always spent time with [the father], from when he was little, and [the father] used to take him to sports.
[The child] said that he ceased spending time with [the father] after an incident where he had made a mess in the front yard of [the mother’s] house, and he did not want [the father] to be angry with him (as he was due to pick him up), so he told [the father] that [the mother] hit him in the stomach. [The child] said that [the father] took him to the police and he told the police what [the father] told him to say, that is, that he did not want to return to [the mother] and he subsequently stayed with [the father] for four days.
[The child] said that [the father] still believed that [the mother] had hit him in the stomach. He denied that [the mother] did hit him in the stomach and said that the marks on his stomach were caused from him scratching his own stomach with a stick. He said that when he returned to [the mother’s] care, he told her that he was sorry for lying and she was upset. [The child] stated that he now felt uncomfortable with [the father] and was worried that he would be angry with him.
[The child] added that he also felt uncomfortable with [the father] because he comes into his room at night. [The child] said that this occurred when [the father] had been drinking and he “just stands there and stares”. He added that there was a time when he was in the shower and when he looked out to get a towel, he saw [the father] had his laptop open and pointed at him in the shower. [The child] said that he also saw photos of himself in his underwear that [the father] had taken.
[The child] said that, if he was to spend time with [the father], he wanted it to be supervised. He said that this was because he worried that [the father] might “take [him]” or get angry with him. [The child] said that [the father] shouts when he gets angry, but denied that he had ever hit him.
[The child] said that he did not want his paternal grandmother to supervise because she gets upset. The concept of a contact centre was described to [the child] and he said that this sounded like somewhere he would feel comfortable.
[The child] denied that [the mother] told him anything about [the father] or what to say. He said that it was [the father] who told him what to say (like to the police).
[The child] confirmed that he had been attending counselling and he had found this helpful. The possibility of inviting [the father] to be involved in his counselling to help repair their relationship was discussed with [the child], and [the child] indicated that he was open to trying this.
It was also reported by the Family Consultant:
If there is veracity to the allegations that [the father] sexually abused one of his other children, then the allegations that he was entering [the child’s] room at night and taking photos in the shower/in his underwear, are of concern. At the least, photos taken of a child [the child’s] age in those scenarios are likely to cause that child discomfort as he is entering adolescence and will want more privacy and boundaries. The veracity of these allegations and whether there is a criminal case against [the father] relating to his other child will be a matter for the Court.
The father has spent no time with the child since 28 April 2015.
In November 2015 the child was referred by his psychologist to Infant Child Adolescent Mental Health Service (“ICAMHS”) due to his deteriorating mental health.
On 4 December 2015 the Department received a report indicating that the child was not allowed to close the bathroom door when showering and believed the father was taking photos of him. The reporter also indicated the child had found photos of himself sleeping in his underwear on his father’s computer and that his father came into his room at night. It was noted the mother had ceased the child’s contact with the father and the report was closed with no further assessment.
In February 2016 the mother was informed by the child’s counsellor at ICAMHS that the child had made several disclosures of sexual abuse by his father and she would be reporting those disclosures to the Department.
On 19, 22 and 26 February 2016 the Department received reports indicating that the child recalled finding approximately 30 photos and three videos of him sleeping in his underwear on the father’s phone. The report also indicated the child had disclosed that when he was approximately five the father had made him sleep in the father’s bed and had rubbed his bottom and penis.
On 19 April 2016 the child was interviewed by JIRT and the child disclosed during that interview that the father lays on his side behind the child at each visitation and rubs the child’s penis with a closed fist under his underwear. The child further disclosed that he found photographs on the father’s phone of the child lying on the father’s bed and the father taking off the child’s pyjamas and rubbing the child’s naked penis with his hand. The child said he could not see his or his father’s face but he recognised his pyjamas.
On 19 April 2016 JIRT substantiated that the child was sexually harmed by his father and the father was recorded as a Person Associated Causing Risk.
On 29 July 2016 the father was interviewed by JIRT who claimed the incidents the child had disclosed “never happened” and the child had been coached to make the allegations.
On 9 August 2016 the mother was advised that JIRT had substantiated the allegations of sexual abuse and indicated the matter would be closed.
The mother claims that subsequent to the closure of the JIRT investigation the child has made further disclosures of sexual abuse by his father including that his father had sexually penetrated him. JIRT substantiated these further disclosures of sexual abuse and the father was informed of this on 20 December 2016 (Exhibit 5).
The child’s behaviour continued to be harmful and destructive with the mother reporting that the child had indicated he wanted to die and had attempted to strangle his younger brother, F.
On 14 December 2016 the child underwent a psychiatric assessment at ICAMH. The mother was informed that the child was suffering from severe trauma with signs of Post-Traumatic Stress Disorder (PTSD), explosive behaviours and possible dissociation in relation to the sexual abuse and his disclosures of that abuse. The child’s antidepressant medication dosage was increased and it was advised he begin behavioural therapy at Thomas sexual assault clinic.
The child had his final counselling session at Suburb G sexual assault clinic in February 2017. The mother deposes in her affidavit filed 14 June 2017 to ICAMHS being unable to provide further support to her and the child due to their heavy case load.
In May 2017 the mother contacted a private psychologist and sessions for the child were anticipated to commence 25 June 2017.
Does the father pose an unacceptable risk of harm to the child?
The mother contends that the father poses an unacceptable risk of sexual abuse to the child based on the child’s disclosures of sexual abuse and the findings of JIRT.
In Deiter v Deiter[5] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements. The Court said at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
[5] [2011] FamCAFC 82.
In M v M[6] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[6] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[7] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[7] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[8], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[8] (2005) FLC 93–235.
The first question therefore is whether I am satisfied that the father sexually abused the child on the balance of probabilities taking into account the matters set out in s140(2) of the Evidence Act.
In regards to this I attach significant weight to the first JIRT investigation in which the child made the disclosures discussed earlier in these Reasons.
During the course of the child’s first interview with JIRT he showed an understanding of what constituted “truth” and what constituted a “lie” and said he had told only the truth in the interview. The child was further able to indicate timeframes for the sexual abuse by his father by discussing incidents that had occurred in the various homes the father had lived in over the years and could indicate the seasons the incidents took place in based on what type of pyjamas he was wearing.
Based on their investigation JIRT investigators concluded the following:
[Mr Fielding] has been identified by JIRT as a Person Associated Causing Risk (PACR) as the investigation lacked evidence such as photographs and videos alleged to be on [Mr Fielding’s] phones and laptop. JIRT however have formed a belief that [B] has been sexually abused by the POI [person of interest] based on clear disclosures made by [B] during a formal JIRT interview completed on 19/04/2016. [Mr Fielding] has not been named as a PCH [person causing harm] as the PCH outcome requires a high level of proof for that classification however the matter has been substantiated on the balance of probabilities that it is more likely than not that harm has occurred.
Subsequent to the child’s further disclosures and the second JIRT investigation, the following conclusions were reached by investigators:
On the balance of probabilities, the matter in relation to sexual harm (penetration) perpetrated by [Mr Fielding] towards [B] has been substantiated by JIRT and Mr Fielding has been named as a Person Causing Harm (PCH). [B] has made a clear disclosure of sexual assault and was able to particularise in his JIRT interview three incidents of anal penetration, perpetrated towards him by [Mr Fielding]. [Mr Fielding] was notified of the PCH outcome on 20/12/2016 by telephone.
The father denied the allegations during the JIRT investigations and alleged that the mother had coached the child to make the disclosures. However, given his withdrawal from these proceedings there is limited evidence available as to any alternate explanation by the father for the child’s disclosures and he has never been cross examined on the issue.
It is to be noted that police did not pursue charges against the father due to insufficient evidence to corroborate the allegations beyond reasonable doubt.
Having regard to the matters set out in s140 of the Evidence Act as discussed earlier in this judgement, in particular the gravity of the allegation under consideration and the fact that the father has discontinued his application and therefore has not been cross-examined in relation to this issue, I cannot positively find that the father sexually abused the child.
However, I am not required to make a positive finding of sexual abuse in order to determine the likelihood the father may sexually abuse the child. In this regard, the findings of the JIRT investigations are significant in that the disclosures made by the child lead to a clear belief for investigators that the child had been sexually abused and the substantiation of the child’s allegations on the balance of probabilities on two separate occasions.
I also have regard to the child’s disclosures to his mother, the Family Consultant, his counsellor, who it is to be assumed as a mandatory reporter was the individual who made at least one of the risk of serious harm reports to the Department in February 2016. Particular weight is attached to the clear and consistent complaints made to JIRT investigators though it is noted that the child’s more serious disclosures of sexual assault and anal penetration were made subsequent to the child’s interview with the Family Consultant in October 2015.
In my view there is a real possibility that the father has sexually abused the child and that he would do so in the future should the child spend unsupervised time with him.
In dealing with the second of the two issues referred to in Deiter (supra), the child has significant ongoing mental health concerns as discussed above that make him particularly vulnerable and are associated with anxiety about spending time with his father. It is beyond dispute that if the harmful events (sexual abuse) were to occur, the severity of the impact is of the highest order particularly for such a vulnerable child.
For the foregoing reasons and having regard to both the likelihood of sexual abuse and the severity of impact if that were to occur, I find that there is an unacceptable risk of harm to the child should he spend unsupervised time with the father.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[9] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[10] and has also agreed with the reasoning of Bennett J in G & C[11]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
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”.
[9] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[10] (2007) Fam LR 518
[11] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said 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 a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of 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.
The child has spent no time with the father for over two years and has expressed significant fear of his father. It is clear that the child has a fractured relationship with the father. In circumstances where I have determined that the father poses an unacceptable risk of harm to the child and the father has discontinued his application for orders the question arises as to whether orders should be crafted facilitating the child spending any time with the father.
In my view it would be entirely inconsistent with the child’s best interest to bring him into contact with his father given the circumstances described above.
The child clearly has a meaningful relationship with his mother and she has been supportive of the child both prior and subsequent to his disclosures of sexual abuse by the father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
I am required to give this consideration primacy and it is largely determinative of this matter for reasons discussed above. In my view the child is at an unacceptable risk of harm in the care of the father and his mental health is likely to deteriorate if orders are made for him to spend time with the father.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)
The child communicated to the Family Consultant that he felt uncomfortable with his father and it is clear from the mother’s evidence, the child’s disclosures of sexual abuse and fear of the father that the child has an negative view of the father and essentially no relationship with him
In light of my finding that the child is at unacceptable risk of harm from the father and that it is in the best interests of the child to spend no time with the father little weight would be given to the child’s stated views.
The child appears to have a positive relationship with his mother and there have been no issues raised by the child or anyone else as to her capacity to care for the child.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother is the primary caregiver and makes decisions for the child. There is no question that she has met her obligations to maintain the child.
The mother asserts that subsequent to separation, following a very brief marriage, the father would change the arrangements for his time with the child to suit himself and this often meant he would see the child less than as stipulated in the 2005 Consent Orders.
By withdrawing from the proceedings and discontinuing his Response the father is essentially forfeiting his right to participate in any long term decision making for the child or spend time or communicate with the child regardless of my findings as to unacceptable risk.
Likely effect of change in the child’s circumstances
Practical difficulty and expense involved in spending time with and communicating with the other parent
As the child has not seen the father for over two years and orders will be made for the father to spend no time with the child there is no practical difficulty or expense in making the orders as sought by the mother. The orders sought by the mother will not result in any change in the child’s current circumstances.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The father’s withdrawal from these proceedings and the risks of harm to the child posed by the father discussed earlier in these Reasons clearly support a finding of serious limitations in his capacity to meet the needs of his child and an abandonment of responsibility in relation to his responsibilities as a parent.
There are no concerns raised as to the mother’s capacity to care for the child and she has been identified by the Department as acting protectively in relation to the child.
Family violence and any family violence order relating to the child or a member of the child’s family
While the mother has deposed to the father perpetrating family violence against her, this evidence is limited and ultimately family violence is not a significant concern in these proceedings given the evidence as to the child’s risk of harm in the father’s care.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
Given the father’s withdrawal from these proceedings, the orders proposed by the mother are highly unlikely to lead to the institution of further proceedings as they do not provide for the father to spend any time with the child.
Any other relevant fact or circumstance
A further relevant factor to be considered is the proposal of the mother regarding the child’s surname.
The mother seeks that the child’s name be officially changed from “B Fielding” to “B Auden”. Essentially the mother seeks that the child take her surname and cease using the father’s surname.
The Full Court in In the Marriage of George and Radford[12] set out the factors which should guide the determination a change of surname application and outlined them as follows:
a)the final decision must be governed not by supposed parental rights but must be in the best interests of the children;
b)short-term embarrassment must be weighed against long-term effects;
c)where the father has a meaningful relationship with his children they should, unless there is a clear contra-indication bearing on their welfare, bear his name;
d)children should not be subjected unnecessarily to a confusion of identity;
e)a parent does not have the right unilaterally to change the surname of children in his or her custody or care and control: such a change requires the consent of both parents, or an order of the relevant court.
[12] (1976) FLC 90-060.
The best interests and welfare of the child has been affirmed as the determinative factor in any change of name application by subsequent Full Court decisions.[13]
[13] Malmo & Hartigan [2010] FAMCA 1182; In the Marriage of Chapman and Palmer (1978) FLC 90-510; In the Marriage of Beach and Stemmler (1979) FLC 90-692; Flanagan v Handcock (2000) 27 Fam LR 615; Reynolds and Sherman [2016] FamCAFC 240.
The mother clearly has a meaningful relationship with the child who clearly identifies with her and the maternal family.
The child currently has no relationship with the father, who poses an unacceptable risk of harm to the child has withdrawn from these proceedings and seeks no orders in relation to the child.
While the child has been known for 13 years by the surname “Fielding”, given he has not seen his father in over two years, expresses fear of his father and is unlikely to re-establish a relationship with his father in the future it is unlikely that the child would experience any embarrassment or confusion if his surname were changed to that of the mother.
The child holds significant anxiety about his relationship with his father and the father’s capacity to “take him away”. It is possible that a change in the child’s surname may reduce the child’s anxiety about his father’s capacity to remove him from his mother’s care.
For these reasons I am of the view that it is in the best interests of the child for him to be known as “B Auden”.
The mother also seeks an order that she be able to take the child travelling internationally without notice to the father. Given I have decided she is to hold sole parental responsibility for the child the mother will have the capacity to obtain a passport for the child and travel with him outside of Australia without notice to the father and there is no need to make an order to that effect.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[14] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section 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 presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this matter the mother seeks that she have sole parental responsibility for the child.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by her must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.
On the evidence before me and in light of the father discontinuing his Response, I am satisfied that it would be in the child’s best interests that his mother have sole parental responsibility for him.
Conclusion
Having regard to all of the factors in relation to the best interests of the child I make orders as sought by the mother.
The orders that I make are as set out at the forefront of these reasons for judgment.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 September 2017.
Legal Associate:
Date: 25 September 2017
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