Baig & Rahim
[2023] FedCFamC1F 983
•15 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baig & Rahim [2023] FedCFamC1F 983
File number: SYC 8195 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 15 November 2023 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Where the father has disengaged from the court proceedings – Where the child has not spent time with the father since 2018 – Where interim orders previously made in 2022 for the mother to have sole parental responsibility and for the child to spend no time with the father – Where the mother seeks orders for the child to be permitted to travel to Country B – Where the mother undertakes to take the child to Country B and not travel to areas classified as “Do Not Travel” by the Australian Government – Orders made in accordance with the proposal of the mother. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Cotton and Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
N and S (1996) FLC 92-655; [1995] FamCA 139
Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Hon John Fogarty AM “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 240
Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010).
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 15 November 2023 Place: Parramatta The Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Ms Dissanayake, Legal Aid NSW Solicitor for the Independent Children’s Lawyer: Ms Rutkowska, Ark Law Lawyers ORDERS
SYC 8195 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAIG
Applicant
AND: MS RAHIM
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
15 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child, X born 2013 (“the child”) including but not limited to:
(a)Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is authorised to leave the Commonwealth of Australia, including for the purposes of travelling to Country B with the child.
(b)Pursuant to s 11 of the Australian Passports Act 2005 (Cth) and Order 3 of the orders dated 11 February 2022, the mother has sole parental responsibility for the purpose of applying for and/or renewing the child’s Australian passport and any other documentation required for international travel, including executing any international forms and documentation for holiday visas without the need for the father’s consent or authority.
2.The child shall live with the mother.
3.The child spend no time with the father.
THE COURT NOTES THAT:
A.There was no appearance by the applicant father today.
B.On the last occasion, the Court made a notation that the Court may make final orders in the absence of a party.
C.The mother undertakes to take all appropriate precautions for the child’s safety in undertaking overseas travel with the child, including travelling to those locations that the mother considers to be relatively safe and, specifically, undertaking not to travel to areas designated as “do not travel” in Australian Government advisories.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baig & Rahim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter has been listed for hearing today by way of orders made on 1 November 2023 which included a notation as follows:
B.In the event of a party failing to comply with the directions made in these orders or failing to appear at the next hearing listed at 9.30 am on 15 November 2023, the Court may make orders in that party’s absence. This includes orders in respect to the mother’s Application in a Proceeding and the Final Orders sought by the mother in her response filed 21 May 2021.
The father has failed to appear in these proceedings despite the matter being called three times outside the body of the Court. Accordingly, the matter has been dealt with in the absence of the father based on the evidence presented by the mother and the Court considering the mother’s Case Outline Document and the Case Outline Document provided by the Independent Children’s Lawyer (“the ICL”). The Court also considered a tender bundle provided by the ICL.
In this matter, I am satisfied that, subject to one amendment that I will subsequently discuss, that it is appropriate to make the final orders as sought by the mother in her Response to Application for Final Orders filed 21 May 2021.
By way of background, the mother was born in 1978 and the father was born in 1963. They married in 1997. They have four children, three are adults. The child who is the subject of these proceedings is X, who is 10 years old. The matter has been listed today pursuant to the orders that I made on 1 November 2023.
In support of her application, the mother relies on the following documents:
(a)Case Outline Document filed 13 November 2023;
(b)Application in a Proceeding filed 15 September 2023;
(c)Affidavit of the mother filed 15 September 2023;
(d)Affidavit of the mother filed 9 February 2022;
(e)Response to Final Orders filed 21 May 2021;
(f)Notice of Child Abuse, Family Violence or Risk filed 21 May 2021; and
(g)Affidavit of the mother filed 21 May 2021.
The parties finally separated on 6 March 2018, with the mother leaving the house with the children on that day.
Shortly after the parties married, the father advised the mother that he had been charged with an offence.
In or around mid-2000, the mother received a telephone call from police, who advised her that the father had been imprisoned. After that time, the mother returned to Country B in order to obtain assistance from family members to care for the parties’ young children. The mother subsequently returned to Australia.
The mother’s affidavits, filed on 21 May 2021 and 9 February 2022, document a history of the father engaging in coercive and controlling conduct directed at the mother, including financial control and controlling her movements such as her ability to visit family. The mother also documents incidents of family violence that occurred during the course of the party’s relationship. For the purpose of this decision, it is unnecessary for me to set out, in detail, the extensive history documented in the mother’s affidavits, save to note that the allegations include allegations that the father excessively disciplined the children and, on occasions, was physically violent towards the children, including the child, who is the subject of these proceedings.
In circumstances where there has been no contradictory evidence presented to the court, to challenge that of the mother, and the evidence of the mother is plausible, I accept the veracity of those allegations, and find that the family violence alleged by the mother against both herself, and also the children occurred.
I further accept the evidence of the mother that, during the course of the party’s relationship, she was primarily responsible for providing the caring and nurturing of the parties’ children. This included attending to the children’s educational needs by dropping them off and picking them up from school. The mother acknowledges, however, that from time to time, the father would assist in certain tasks, including taking the children to and from school.
I also accept the mother’s evidence that she was the parent primarily responsible for taking the children to extra-curricular activities, and, where necessary, to medical and dental appointments.
I accept the evidence of the mother that the father has not spent time with the child since the date of final separation of the parties in March 2018.
The mother describes the child as being softly spoken, and adverse to conflict. This is in circumstances where the child has observed aggressive and violent conduct being engaged in by the father when the parents lived together.
The mother documents, in her affidavit, instances where the three adult children have engaged in concerning and antisocial behaviour. The mother justifiably, in my view, contends, that a contributing factor to that concerning behaviour has been the children’s experiences in witnessing, angry, aggressive and generally dysregulated behaviour on the part of their father. The mother states that the child, who is the subject of these proceedings has fortunately had less experience with behaviour of that nature, and accordingly is much calmer and more focused in her studies than her siblings.
The mother proposes that the child spend no time with the father in circumstances where she has not seen him since March 2018. The mother is concerned that the father has mental health challenges that he has failed to acknowledge, address, or monitor. The mother believes, again, justifiably, in my view, that unless, and until that is addressed, the child will be exposed to an unacceptable risk of psychological and potentially physical harm if she were to spend time with the father.
On 11 February 2022, the court made interim orders for the mother to hold sole parental responsibility and for the child to live with the mother (Orders 3 and 4). The orders dated 11 February 2022 also stated that the child is to have no communication with the father and spend no time with him (Order 5). Essentially, the mother seeks a continuation of the substance of those interim orders.
In terms of more specific events, in the Case Outline Document filed on 13 November 2023, the mother has set out a chronology. In the absence of that being challenged and in circumstances where it is consistent with the mother’s affidavit, I accept the veracity of that chronology as detailed below:
Date
Event
1963
Applicant Father is born.
1978
Respondent Mother is born in Country B.
1996
Father charged with two offences with person under 16.
1997
Parties marry in Sydney and commence living together. Mother is 19 years of age.
1997
Mother alleges that the father tells her that he has been charged with an offence and that his case is before a District Court.
1998
Father in accident and hospitalised. Mother becomes father’s carer.
1999
Father convicted of offence
2000
Ms C is born.
2000
Father spends time in Gaol for conviction of offence.
Mother travels to Country B for family support.
2000
Mother returns to Australia.
2001
Ms D is born.
2003
Mother asserts that the parties begin to argue regularly, and that the father is physically violent towards her and the children.
2003
Mr E is born.
2005/2006
Mother alleges that the father became angry and threw a pot of hot pasta at the mother and Ms D. Mother asserts that Ms D said words to the effect “Mum I’m scared I’m going to die”.
2012
Mother alleges that the father became angry at Mr E for using his razor, yelled at him and used the razor to shave Mr E’s head. Mother asserts that the father also attempted to hit Mr E with a spatula while he was in the bathroom.
2013
Subject child, X is born in Australia. X is currently 8 years of age.
2015
Mother alleges that father refused to sign travel documentation for child Ms D and tells her that she is not his child.
2016
Parties separate under the same roof.
Father commences living in accommodation on the property.
2017
Mother alleges that father shows pictures of women to Ms D.
2017
Mother alleges that father became angry at Ms D for not changing out of her nightgown. Mother asserts that the father yelled and hit Ms D with a slipper.
2017
Mother alleges that the father pulled Ms D’s hair and slapped her. Mother says that when she tried to stop the father, he yelled and slapped the side of her face repeatedly.
Ms C calls Police and mother asserts that she declined to make a report as she was fearful of the father.
2018
Mother moves out of the home with the children.
2019
Parties divorce.
2020
Mother asserts that Mr E starts drinking alcohol and becomes verbally and physically aggressive.
2020
Mother receives assistance from the Department of Housing and F Organisation and Mr E is taken to alternate accommodation. Mr E is moved from his accommodation due to his behaviour.
2020
Mother asserts that a caseworker advised her to consider Mr E living with the father.
Mr E moves to live with the father and spends time with the mother and X every Saturday.
16.11.2020
Father commences proceedings.
25.05.2021
First return - ICL appointed and parties directed to attend Child Inclusive Conference.
25.10.2021
Parties attend Child Inclusive Conference.
28.10.2021
Matter listed for directions and the Court makes orders pursuant to s 69ZW of the Family Law Act.
02.12.2021
Matter listed for directions and set down for interim hearing.
11.02.2022
Interim Hearing – interim orders made for the mother to hold sole parental responsibility, for X to live with the mother and spend no time with the father.
9.03.2022
Matter listed for directions and not recommended for Magellan program and transferred to division 1.
31.08.2023
Mother’s solicitor sends proposal regarding travel (letter and proposed minute of order) to the father’s solicitor.
6.09.2023
Father’s solicitors respond stating that the father does not agree to the mother travelling with X.
11.09.2023
Matter listed for callover and referred for case management.
19.09.2023
Orders made appointing Dr G to prepare Expert Report.
29.09.2023
Orders made setting the matter down for an interim hearing in relation to the mother’s application in a proceeding (travel application).
(Emphasis in original)
LEGAL PRINCIPLES - PARENTING PROCEEDINGS
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·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;
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence;
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler (as he then was), Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (emphasis in original).
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence: s 61DA(2) of the Act.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: s 61DA(4) of the Act. For reasons which I subsequently explain, I have determined that it is not in the best interests of the child for the presumption to apply due to the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the considerations set out in paragraph (2)(b), that is, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In considering that first matter, I note that, In McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [122], the Full Court said:
… No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage [to] a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Loddington, Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton and Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 at [56], Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [61].
Additionally, the following guidance emerges from authorities:
(a)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996 citing M v M (1988) 166 CLR 69 at 77.
(b)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(c)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon. John Fogarty AM titled “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(d)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact; “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.[1]
[1] See the Hon. Richard Chisholm “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents and any other characteristics of the child that the court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the court considers relevant.
CONSIDERATION
The presumption of equal shared parental responsibility
I am satisfied that the family violence, as alleged by the mother, has occurred. I am also satisfied that the father has not been involved in communicating regarding matters impacting upon the child since 2018.
In those circumstances, the presumption of equal shared parental responsibility does not apply. Nonetheless, in terms of considering whether to make an order for equal shared parental responsibility, I note, in the absence of evidence of the father engaging in communication concerning matters relevant to the child’s welfare, that it would be inappropriate, in my view, to make an order for equal shared parental responsibility.
Accordingly, I will make an order for the mother to have sole parental responsibility, including, for reasons which I set out below, in respect to overseas travel.
The benefit to the child of having a meaningful relationship with both of the child’s parents
The High Court of Australia has determined that s 60CC(2)(a) is a relevant consideration subject to the issue of unacceptable risk. For reasons which I have set out, I am satisfied that the father has engaged in acts of family violence, including in respect of the children. I am satisfied, for reasons which I have earlier set out, that there is an unacceptable risk for the child spending time with the father, unless and until, he acknowledges the cause of his behaviour, takes steps to address that and takes steps to have a program of ongoing monitoring of his conduct. I am satisfied that unless and until that has occurred there is an unacceptable risk of the child spending any time or communication with the father.
Issues relating to the children – their views, level of maturity, culture and relationships
The mother has explained the child is a sensitive child and is conflict averse. This is a further reason why, in my view, the child should spend no time with the father in circumstances where I am not satisfied that he has addressed the cause of behaviour that he has engaged in.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
I am satisfied that the mother has admirably fulfilled her responsibilities as a single mother in respect to the child, both providing sole care for the child since 2018 and providing for her physical needs, intellectual needs and emotional needs. Comparatively, I am satisfied that the father has not made any contribution to those matters.
Issues of family violence
I have earlier addressed those issues and I am satisfied that the family violence that has occurred is such that, in determining whether there is an unacceptable risk, the pattern of family violence, including coercive and controlling conduct engaged in by the father, I am able to predict, and do predict, that unless and until the father takes steps to address the cause of his conduct, that the child would be exposed to an unacceptable risk in his care.
Effect of change
The child currently lives with the mother and has not spent time with the father since 2018. As I have indicated, accordingly, there would be no effective change in the child’s circumstances.
Practical difficulty of implementation
Similarly, the situation would simply continue as it has since 2018 and in accordance with the interim orders made in 2022. In my view, there are no practical difficulties in those arrangements continuing.
Avoiding further proceedings
It is regrettable that the father has failed to engage in these proceedings. As a consequence, the mother has been put to expense, necessarily, financial and emotional expense in conducting these proceedings in circumstances where they could have been resolved much earlier, had the father clarified his position.
Other relevant matters
The mother seeks orders that the issue of parental responsibility is to specifically empower the mother to make decisions regarding the child engaging in overseas international travel. This includes the child travelling to the mother’s home country of Country B. In that respect, I accept that it is a benefit to the child to spend time with her maternal grandparents, particularly in circumstances where the maternal grandfather’s health is deteriorating. I note undertakings offered on behalf of the mother by her solicitor that in the event of the mother travelling to Country B, she would ensure that the child spends time only in the capital city of City H and that she would not travel with the child to any of the areas which are the subject of the Federal Government’s travel advisory tendered by the ICL that have been designated as “Do Not Travel”.
I am satisfied that the mother will return to Australia, as the mother has strong ties to Australia, including the fact that her three adult children live here.
I am satisfied that the child’s relationship with her parents will not be adversely impacted by the child travelling as the child has lived with the mother all her life and has not spent time with the father since 2018.
In respect to the health of the child’s maternal grandparents, the maternal grandfather is 75 years old, suffers from high blood pressure, dementia and degenerative change. In mid‑2022, he was hospitalised in the intensive care unit. The mother gives evidence of conversations with her brother and uncle who told her that the maternal grandfather is weak and can no longer travel.
Accordingly, I accept that he is unable to visit the child or the mother in Australia. I am satisfied that the child also has a loving relationship with the maternal family, speaking to her grandparents and cousins over the phone about once per month. It is important that she has the opportunity to retain those relationships, and also having regard to the desirability of maintaining her links to her cultural heritage in Country B.
I am satisfied that, subject to the mother taking appropriate and sensible precautions in respect to her travel, that the travel will have a positive impact on the child’s wellbeing, particularly in circumstances where the child’s siblings have all been to Country B and I accept the mother’s evidence that the child has expressed a desire to visit the maternal family.
In that respect, I note the evidence of the mother, which I accept, that the child’s school teachers have advised the mother that the child speaks fondly of a desire to visit Country B and her grandparents and other members of the maternal family who reside in Country B. In circumstances where the child is 10 years old, it is appropriate that I have regard to and give some weight to her views, having regard to the provisions of s 60CC(3)(a) of the Act.
In summary, I am satisfied that the mother has strong ties to Australia, has lived in Australia for over 25 years and is an Australian citizen. The child and her siblings were all born in Australia and have a close relationship to each other. The mother proposes to travel to Country B with the child and the eldest child Ms C, who will provide some support. The mother confirms that she has no intention of separating those children from her other children who continue to reside in Australia.
I am satisfied that the mother has employment in Australia and that the child’s adult sister, with whom she will be travelling to Country B with, is also employed in Australia and will be required to return to Australia for her employment. I also note that the mother is enrolled at college and is currently completed studies.
Further, the mother has secure housing in Australia, with assistance being provided by the NSW Department of Communities and Justice Housing, with a tenancy arrangement in place until early 2028. The mother intends to return to continue to utilise that facility that has been provided to her.
Accordingly, I am satisfied that the mother has strong and enduring ties to Australia through her employment, the fact that her other children continue to reside in Australia, the fact that the mother is undertaking studies in Australia and that the mother has access to affordable housing in Australia. For reasons which I set out, I am also satisfied that, subject to the mother acting responsibly and taking appropriate cautions, that the prospect of the child engaging in overseas travel, including to visit her grandparents in Country B, is consistent with her best interests.
CONCLUSION
Accordingly, for all these reasons, I make orders as sought by the mother in her Response to Application for Final Orders filed 21 May 2021, save to the extent that, Order 1.2 will be replaced by Order 3 as sought in the mother’s Application in a Proceeding filed 15 September 2023.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 20 December 2023
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