BANFIELD & MCKEEVER

[2015] FCCA 2534

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANFIELD & MCKEEVER [2015] FCCA 2534

Catchwords:
FAMILY LAW – Parenting orders – relocation – family violence – child permitted to relocate to New South Wales – child to live with mother and to spend no time and have no communication with the father.

Legislation:

Children, Youth and Families Act 2005 (Vic)

Family Law Act 1975 (Cth), ss.60CC, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 61DA, 61DA(2), 61DA(4), 62G, 68B

Applicant: MR BANFIELD

Respondent: MS MCKEEVER

File Number: MLC 1427 of 2013

Judgment of: Judge Hartnett

Hearing date: 5 August 2015

Delivered at: Melbourne

Delivered on: 5 August 2015

REPRESENTATION

The Applicant: No Appearance

Counsel for the Respondent: Ms Kildea

Solicitors for the Respondent: Marcou & Associates Pty Ltd

ORDERS

1. The mother have sole parental responsibility for the child of the relationship X born (omitted) 2011 (“X”).

2. X live with the mother.

3. The father spend no time and have no communication with X.

4. Pursuant to s 68B of the Family Law Act 1975 (Cth), the father, his servants and his agents be restrained by injunction from:

   (a)Assaulting, intimidating, molesting, harassing, threatening, stalking causing or threating to cause her bodily harm or otherwise committing family violence against X and/or the mother;

   (b)Approaching, entering or remaining within 200metres of any address of a place of residence, employment or school/childcare of X and/or the mother; and

   (c)Approaching or remaining within 5 metres of X and/or the mother.

5. The mother be permitted to make application to the Department of Foreign Affairs Passport Office for an Australian Passport for X and that the consent of the father to make such application be dispensed with and IT IS REQUESTED that the Passport Office accept the passport application of the mother for the child without the consent of the father.

6. The mother be permitted to relocate to New South Wales.

IT IS NOTED that publication of this judgment under the pseudonym Banfield & McKeever is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1427 of 2013

MR BANFIELD

Applicant

And

MS MCKEEVER

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. On 23 April 2013, this Court made Orders that were final parenting orders with respect to the parties’ daughter X born (omitted) 2011 (‘X’).

2. On that occasion, Counsel appeared for the mother and there was no appearance by or on behalf of the Respondent father.  The Court ordered X live with the mother and that she have sole parental responsibility for her.  The Court further ordered that the father spend time with X as agreed in writing between the mother and the father. The Court further ordered that the solicitor for the mother serve by personal service a sealed copy of the Orders upon the father and, further, granted leave to the father to seek to set aside the Orders upon three months of service of such Orders upon him. 

3. The father, thereafter, filed an Application which he subsequently amended by Amended Initiating Application filed on 7 October 2013.  Pursuant to the earlier leave granted to the father, he sought to set aside the Orders that had been made in April 2013, and sought that the parties have equal shared parental responsibility for X and otherwise, relevantly, that he spend every fortnight from Friday at 5.30pm until Sunday at 5.30pm with X and on an unsupervised basis. The father also sought orders for spend time with between himself and X to cover holiday and special occasion days.  He sought telephone communication and he sought in order 12 of the orders set out therein:-

   “12. The Applicant Father request (sic) to be able to take the child X out of the [S]tate and [/] or country without limitations

   (a)     a month prior to the child X leaving the [S]tate and or country both the Applicant Father and [/] or Respondent Mother (“the parties”) must inform the other party

   (b)     both parties must provide all information regarding the child leaving the [S]tate and [/] or country.”

4. It is not necessary here to detail the remaining orders as sought by the father, but they are set out in that Amended Initiating Application filed on 7 October 2013.

5. The father’s Initiating Application of 19 July 2013 was within the three month period provided for in the April 2013 Orders.  In support of that Initiating Application, the father filed an Affidavit sworn by him on 18 July 2013.  He has, since that time, filed no further evidentiary material.

6. On 10 February 2014, amongst other Orders made, was an Order that X live with her mother and spend time and communicate with her father at times allocated by the (omitted) Contact Centre located at (omitted).

7. On 21 August 2014, further Orders were made, including an Order that the father attend for random supervised drug screens within 48 hours of a request to do so by the solicitors for the mother.  The results of such testing were then to be forthwith made available by the father to the solicitors for the mother.  The testing was to occur no more than twice each month.

8. On 18 December 2014, further Orders were made requiring the father to file and serve an affidavit of evidence and any other material in response to the mother’s evidentiary material and any other material he sought to rely on by no later than 4 pm on 27 January 2015.  The father failed to comply with that Order.

9. When the matter next came before the Court on 3 February 2015, there was no appearance by or on behalf of the father. The matter was adjourned to this day for a final hearing and the parties were to file their respective affidavit evidence no less than 14 days prior to this date. A further Order was made that there be a s.62G of the Family Law Act 1975 (Cth) (‘the Act’) family report prepared in the proceedings.

10. Order number eight of the Orders made 3 February 2015 provided that the solicitors for the mother were to serve a sealed copy of the Orders upon the father as soon as was practicable.  I am satisfied that service occurred on 16 February 2015 by the forwarding of such Orders via Express Post from the solicitors for the mother to the father.

11. The mother had been granted liberty to seek to proceed on an undefended basis in the event the father failed to attend the hearing this day.  The father was called outside the courtroom this morning.  He failed to answer the call.  He has failed to participate in the proceedings and he has filed and served no evidence by way of affidavit material since 18 July 2013. He has failed to attend Court proceedings, in particular those of 3 February 2015 and the proceedings this day.

12. The mother was permitted to proceed on an undefended basis and sought the parenting orders as set out by her in her Amended Response filed on 15 December 2014. The Court will accede to the application of the mother.

13. The mother relied upon affidavits sworn by her on 6 February 2014, 15 December 2014, 21 July 2015 and 30 July 2015.  The mother further relied upon an Affidavit of Ms K sworn on 24 July 2015; the Family Report dated 20 July 2015 prepared by family consultant, Ms P; and a Report prepared by the Department of Human Services and dated 15 August 2014. Such Report, together with the Family Report, was introduced into evidence in the proceedings this day.

14. The Court notes that despite the father’s lack of participation in the court hearings, and in the filing of evidence, he did attend upon the family consultant for the purposes of the preparation of the s.62G of the Act Family Report.

15. The Affidavit of Ms K went to an earlier Order made by the Court which provided for supervised time spent with between X and her father.  Ms K is a social worker employed by (omitted) (Vic) Limited in the Children’s Contact Service located at (omitted).

16. Ms K noted that the (omitted) Children's Contact Service received applications for supervised visits from the mother and father in February 2014.  She noted in her Report annexed to her Affidavit and marked exhibit “K1” her assessments were delayed due to the Children’s Contact Service waiting list which, at the time, was approximately 20 weeks and initial difficulty contacting the father for assessment with several phone call attempts from (omitted) to the father between September and October of 2014.  Assessment of the parties did not take place until November 2014.

17. The outcome of the assessment was that (omitted) was not satisfied that the Children’s Contact Service was appropriate for X without further therapeutic work to support X in preparing for contact with Mr Banfield.  The reasons for this, as provided, included:-

    a)X had not seen her father since she was a baby and is rarely separated from her mother.  As a result, it was assessed she would be unlikely to transition through to contact; and

    b)X was not aware that Mr Banfield was her father.  As a result, it was assessed that X was not adequately prepared for visits to commence.

History

1. The parties entered into a relationship in 2011, that being the year of X’s birth.  The father was born on (omitted) 1995 and is now aged 19 years.  The mother was born on (omitted) 1995 and is, likewise, now aged 19 years.  The mother became pregnant when both she and the father were 15 years of age.  During their relationship they lived together initially at the maternal grandfather’s home and, subsequently, at the maternal grandmother’s home.  Both parties left school in 2011, having completed year 10.

2. The Department of Human Services, Child Protection (‘the Department’) became involved with X in November 2011 being very shortly after her birth and placed X under a supervision order to live with her mother, later withdrawing, satisfied that the child was safe in her mother’s care. The Department assessed the father as posing a risk of harm to X at that time. The Department’s concerns related to substance abuse, mental health, family violence and anger issues all relating to the father.

3. Under the Children, Youth and Families Act 2005 (Vic) Orders, the father was allowed supervised visits with X. His attendance was inconsistent, and he became aggressive and verbally abusive in X’s presence. From May 2012 to December 2012, the father only attended 19 out of 81 of the Department organised spend time with visits, and in December 2012 he ceased to see X altogether. I note that throughout her life the father has failed to pay any amount more than the minimum Centrelink amount by way of child support for X.

4. On 19 November 2014 at the Sunshine Magistrates’ Court, a family violence Intervention Order naming the mother and child as affected family members, and the father as the named respondent, was made with such order to expire on 19 November 2019.  Earlier in that month, the mother was also granted a family violence Intervention Order against the father’s now previous partner, Ms J.  That person is now the father’s previous partner as a result of an alleged unlawful assault perpetrated by the father upon Ms J.

5. The father discussed the alleged unlawful assault by him upon Ms J with the family consultant as referred to in paragraph 11 of the Family Report.  Paragraph 11 is as follows:-

   “Mr Banfield further said he is currently on bail in regards to an unlawful assault against an ex-partner, approximately eight months earlier.  Mr Banfield despite earlier telling the writer he had not used illicit stimulants for 18 months told the writer at the time of the assault on his former partner he “got heavy on speed and crystal meth … out of my mind not myself, depressed, tried to kill myself, very suicidal, lost my family, lost my girl, lost everything, lost myself … went into a psych ward … I know I did the wrong thing.” He reports he has not as yet undertaken a Men’s Behavioural Change Program or an Anger Management Program.”

6. The Court also notes for completeness sake that on 21 November 2011, being shortly prior to the parties’ separation, the mother was granted a family violence Intervention Order against the paternal grandmother, and on 14 July 2015 the mother was granted a family violence Intervention Order against the paternal uncle, Mr C.

7. The mother also sets out in her Affidavit sworn 21 July 2015, and which is evidence in the proceedings, an Intervention Order obtained in November 2011 by her mother, Ms B, her two sisters, Ms M and Ms C; and she and X against the paternal grandmother, Ms S. Such Intervention Order expired on 7 December 2012. 

8. There was also a Children’s Court family violence Intervention Order protecting X and the mother from the paternal aunt, Ms T, which expired on 18 February 2015.  The Order obtained by the mother for the protection of herself, X and her other child Y, from Mr C made on 14 July 2015, will expire on 14 January 2018.

9. The mother has been subjected to significant family violence at the hands of the father and members of the father’s family which has resulted in the need to seek and obtain extensive family violence Intervention Orders.

10. The mother alleges that the father has a history of attention deficit hyperactivity disorder, oppositional defiance disorder, depression, illicit drug use and undiagnosed schizophrenia.  Further, she alleges the father was physically violent toward her during the course of X’s pregnancy and after X’s birth.

11. The father admitted that he used illicit substances but denied to the family consultant that he currently does so.  He denied all the other allegations when such allegations were put to him by the family consultant.  He, however, gave inconsistent evidence with respect to his drug usage as is referred to in paragraph 11 of the Family Report which appears above.

12. A Report received by the Department on 5 March 2014 raised concerns that X had been physically abused by her stepfather, Mr L. This claim was not substantiated, although not before the mother was required to sign an undertaking agreeing she would fully supervise all contact between Mr L and X.  Victoria Police confirmed there were no family violence callouts to any of the addresses where X, the mother and Mr L stayed overnight.  The Department did not substantiate any abuse and closed their case. 

13. The Department Report of 15 August 2014 is before the Court in evidence.  It is written by Ms F, a Practice Leader in Child Protection in the (omitted) Area, West Division, with the Department of Human Services.  Whilst that Report concluded that on the then current assessment there was no role for Child Protection, the family consultant noted that was because X was fully reliant on her caregivers to ensure her safety and address her care needs.  The Department concluded those needs were well met by her mother, who cared well for her daughter, acted protectively, and took the necessary steps to ensure her safety.

14. At the conclusion of the Report in August 2014, the Department said the following:-

    “DHS holds significant concerns regarding Mr Banfield.  He has a significant and concerning history which includes mental health issues, anger management, physical aggression and abuse, controlling behaviours, parenting capacity, substance misuse and transience.  He made no attempt to engage with supports to address the concerns during the last period of Child Protection Intervention and there is no evidence to suggest that he has done so since the initial Child Protection involvement ceased.  Given X’s age should she have contact with her Father she would be highly vulnerable in his care and given the protective concerns, the potential harm consequences of abuse would likely be sever (sic) and possibly fatal. Ms McKeever has genuine concerns for her daughter should contact be granted with her Father.  Ms McKeever is assessed as being protective of her daughter and attuned to her needs, she has been proactive in ensuring her safety, provided her with a stable home life, consistent care and there are no known concerns for her development as a result.”

Consideration

1. The father is not in employment.  The mother is engaged in home duties.  The mother has re-partnered and her fiancé is Mr L who is aged 21 years.  They have a child, Y, born (omitted) 2014.  Whilst Mr L is currently on a Youth Allowance and actively looking for employment, he has a job opportunity to work on a (omitted) farm in New South Wales should the mother be permitted to remove X’s place of residence to New South Wales.

2. The mother seeks a relocation order to move X’s place of residence from the State of Victoria to the State of New South Wales as a result of the significant family violence that has been perpetrated upon both her and X by the father and by the father’s family as set out in the affidavits filed by the mother.

3. The mother remains concerned about the father’s drug usage.  He has not complied with the Orders of 21 August 2014 in regards to supervised urine drug screens.  He has been required to undertake some 15 drug screens and he has produced only four results in respect of such requests. One of those four results was positive.

4. The father reported to the family consultant that he began to use cannabis around the age of 13 to 14 years and in that period was using seven grams a week.   He continued with cannabis use at that level or higher until December 2014 at which point he reported cutting back his usage to a “joint” on the weekend.  He also reported that he had tried methamphetamine but reported last using one of those substances 18 months earlier.  That was clearly not accurate given the alleged assault upon his former girlfriend and its cause.  The father reported to the family consultant further that he is currently prescribed Valium for anxiety and takes such medication.

5. The father’s visits with X ceased in December 2012.  Since that time the father reported to the family consultant that he has been depressed and suicidal, and that he has had contact with, and used, psychiatric services in relation to his mental state.  During the course of the family report interview, the father was observed with X and presented as genuinely attached to her with positive interactions. The family consultant noted that X seemed to be genuinely attached to him, despite over two years of no time spent with her father.

6. The family consultant said at paragraphs 26 and 27 of the Family Report the following:-

   “26. While the writer is of the view it is worth supporting an ongoing relationship between X and her father, with the view of sustaining the relationship for the future, while Mr Banfield continues to mature and stabilise, the writer is also of the view that Mr Banfield is developmentally not ready to consistently take on the adult responsibilities and tasks of parenting and that any unsupervised time between Mr Banfield and X would place X’s wellbeing at risk.  Hopefully over time [if] Mr Banfield continues to develop, mature and stabilised and that the writer’s current view at some point in the future be revised.

   27.  The writer is also of the view that the likely progress of Mr Banfield’s maturity is indeterminate in regards to time and as such it would be inappropriate for Ms McKeever’s own development of a secure adult psychosexual relationship and development from adolescence to adulthood to be impeded by a requirement to remain living in the (omitted) or (omitted) area or within Victoria.  Any negative impacts on Ms McKeever’s wellbeing are also likely to be impacts upon X’s well-being, in the writer’s view, it is of the utmost importance to support X’s secure primary care relationship with her mother.”

7. The family consultant noted that the mother presented as warmly and securely attached to X and confident in her parenting of X.  She further noted X, in turn, presented as well-cared for, meeting developmental milestones, and confidently and securely attached to her mother.  In respect of the mother’s partner, Mr L, the family consultant found him to present as warmly attached to X and X to him.  The relationship was noted to have the quality of a secondary attachment.

1. The family consultant recommended that the mother have sole parental responsibility, amongst her other recommendations, and that the mother’s desire to move to the New South Wales coast with her partner and family be supported.  She further recommended that the mother’s application for a passport be supported on the basis of restricted travel to Hague Convention countries and on the basis that X’s supervised time as proposed by her, each three months with her father, not be impeded.

2. Finally, the family consultant noted a recommendation that the father be required to undertake a parenting after separation program; a men’s behavioural change program; and that the mother be granted a restraint order under s.68B of the Act as sought by her.

3. The Affidavit by Ms K however puts evidence before the Court as to the current impossibility of supervised visits occurring in a contact centre.  The father needs to address issues that are longstanding for him being issues of violence and mental health before any time spent with X could be contemplated. Further, the Court does not see it necessary to restrict the place of travel of the mother.  At the present time the mother has limited finances available to her for travel. She has two small children and her application is sought on the basis that she would like to avoid coming back to Court in the future, should the opportunity for travel ever present itself. Further given the citizenship of the mother, of Mr L, of their children and of both the mother and Mr L’s extended family, the mother does not present as being at risk of leaving the Commonwealth of Australia with X to reside elsewhere and not return.

4. The mother shall be permitted to relocate X’s residence to New South Wales.  This should provide family support in the form of Mr L’s family to the mother, Mr L, their son and X and financial support in the form of Mr L being able to gain employment.

5. The mother is anxious and afraid of being in close geographical proximity to the father and his family and seeks to put some distance between them.  There is ample evidence to support that being a reasonable desire, and one which protects and promotes the best interests of X who has been exposed to family violence by the father.

6. The presumption of equal shared parental responsibility is rebutted in the circumstances of this case. That presumption is as set out in s.61DA of the Act. In the facts of this case, s.61DA(2) and s.61DA(4) of the Act, are applicable.

7. When the Court considers, further, the best interests of X which is the paramount consideration, and looks to those matters as set out in s.60CC of the Act, the Court notes that X is too young to express a view that the Court would give any weight to; further, that the nature of the relationship of X with her mother is positive and that of a primary caregiver and child. The mother provides for all of X’s emotional, physical and financial needs.

8. The relationship of X with her father is not supported by the father in the father’s willingness to address his mental health and violence issues.  He has failed to fulfil his obligations to maintain X and he presently has no capacity to provide for X’s needs, including both emotional and intellectual.  He demonstrates a poor attitude to X and the responsibilities of parenthood.  The mother, by contrast, exhibits a reliable and positive attitude to X and the responsibilities of parenthood.

9. Family violence is to the fore in the facts of this case and the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence as set out in s.60CC(2)(b) of the Act overrides the primary consideration as set out in s.60CC(2)(a) of the Act, which is the benefit to X of having a meaningful relationship with her father. Section 60CC(2A) of the Act is applicable.

10. Otherwise the Court accepts the unchallenged evidence of the mother in her various affidavits. The father has failed to prosecute his application. The Court makes Orders as sought by the mother.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  18 September 2015