BANNISTER & MANCUSO
[2018] FCCA 2591
•20 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANNISTER & MANCUSO | [2018] FCCA 2591 |
| Catchwords: FAMILY LAW – Parenting – undefended hearing – risk of harm – order for no time. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60B, 65DAA, 61DA, 60CG, 65DAC |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR BANNISTER |
| Respondent: | MS MANCUSO |
| File Number: | PAC 4455 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 20 September 2018 |
REPRESENTATION
| Appearing for the Applicant: | No appearance |
| Appearing for the Respondent: | Ms Macdonald |
| Solicitors for the Respondent: | Women's Legal Service |
ORDERS
The mother shall have sole parental responsibility for the children [X] born 2011 and [Y] born 2013.
The children shall live with the mother.
The children shall spend no time with the father.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Bannister & Mancuso is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4455 of 2016
| MR BANNISTER |
Applicant
And
| MS MANCUSO |
Respondent
REASONS FOR JUDGMENT
Introduction
These are reasons for judgment in relation to the children [X] born 2011 and [Y] born 2013.
The applicant is the father, Mr Bannister who filed an Initiating Application on 16 November 2016, who has not participated in the proceedings since the file was transferred to the Parramatta Registry of the Federal Circuit Court on 18 December 2017.
The Respondent is the mother, Ms Mancuso who seeks orders in accordance with her Response filed 24 April 2017 being that:
a)The mother have sole parental responsibility for the children;
b)The children live with the mother; and
c)The children spend no time with the father.
Documents Relied Upon
The mother relies on the following documents:
a)Response filed 24 April 2017;
b)Notice of Risk filed 24 April 2017;
c)Affidavit of Ms Mancuso sworn 10 March 2017 and filed 24 April 2017;
d)Affidavit of Ms D affirmed and filed on 30 June 2017; and
e)Affidavit of Ms Mancuso sworn and filed 8 December 2017.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 - Material produced on Subpoena from South Australia Police;
b)Exhibit 2 – Material produced on Subpoena from Town 1 Medical Centre;
c)Exhibit 3 – Material produced on Subpoena from Town 2 Mental Health; and
d)Exhibit 4 – Material produced on Subpoena from Department of Child Protection.
Chronology
The father was born on 1982.
The mother was born on 1990.
The father was diagnosed with schizophrenia in 2001.
In November 2005 the father was placed on a Community Treatment Order after refusing treatment.
In March 2006 the father was treated in an Emergency Department after calling the Police with intent of blowing things up and hurting himself.
On 24 May 2007 the father was ordered to comply with a twelve month Community Treatment Order.
In 2008 the father was admitted to Town 1 Medical Centre for failing to take medication to treat his schizophrenia; attempted suicide by slitting his wrists, overdosing on Risperidone and pouring boiling water on himself; and threatening to kill his brother and mother.
The parties married on 2009 in (country omitted).
The father moved to Adelaide in 2009 without the mother.
The mother moved to Adelaide and to Australia on 2010.
The parties’ first child, [X] was born on 2011.
The parties’ second child, [Y] was born on 2013.
On 21 October 2013 a report was made to the Department of Child Protection that the father swung a broom at the mother.
On 3 April 2014 the South Australia Police attended the party’s home after the father’s family became concerned with his erratic behaviour. The father was detained by police and taken to Town 1 Medical Centre. Before leaving the home the father appeared to make a ‘slit throat’ gesture at the mother. There was a report to the Department of Child Protection that the father had been abusing the mother in front of the children.
Between April 2014 and May 2014 the father was admitted to Town 1 Medical Centre after the mother raised concerns about the father’s mental state and her and the children’s safety.
On 25 May 2014 the mother reported that the father had hit her in the face. The father was admitted under Level 1 Involuntary Treatment Order to the Mental Hospital.
On 1 September 2015 a report was made to the Department of Child Protection that the father had been yelling at the children forcing them to read the (book omitted).
On 21 September 2015 the parties separated after the father threatened to kill the mother and the children.
On 22 September 2015 the South Australian Police served the father with an interim Intervention Order to protect the mother and children and was arrested and charged with ‘threaten to kill or endanger life – aggravated offence’.
The mother and children moved to Sydney on 2016.
On 19 August 2016 a final Intervention Order was made to protect the mother and children from the father.
On 16 November 2016 the father filed an Initiating Application with the Adelaide Registry of the Federal Circuit Court seeking interim orders that the mother return to Adelaide with the children.
The parties became divorced on 23 December 2016.
On 24 July 2017 interim orders were made that the children live with mother in Sydney.
On 18 December 2017 further interim orders were made that the father spend supervised time with the children at the Children’s Contact Centre convenient to the mother and that the father be permitted to send cards and gifts to the children via the mother’s solicitor.
Summary of the mother’s argument
The mother submits that the children would not benefit from having a meaningful relationship with the father or that any benefit is outweighed by the need to protect the children from physical or psychological harm.
The mother further submits that she should have sole parental responsibility for the children because the presumption that it is in the children’s best interests for equal shared parental responsibility does not apply because there are reasonable grounds to believe that the father has engaged in family violence.
Evidence of the mother re allegations of family violence
In 2011, when the child [X] was four months old, the father referred to the child as having “Satan in him”, refusing to allow the mother to breastfeed the children and read the (book) to the child for two hours, causing distress to the mother and the child.
When the mother was seven months pregnant with the parties’ second child [Y], the father punched the mother and pushed her towards the window and threatened to throw her out the window.
Shortly after [Y] was born the father began screaming in the early hours and would wake the children.
On a number of occasions the father approached the mother with a kitchen knife and threatened to “kill you and the kids”.
On 3 April 2014 a report was made to the Department of Child Protection that the children had witnessed the father acting aggressively towards the mother including hitting and pulling the mother’s hair.
In 2015 while the mother and father were shopping with the children, the father said to the shop assistant “I will slash them with a knife” referring to the mother and the children.
The father on one occasion put his hand over the children’s nose and mouth.
In September 2015, the father took the mother and children to a park and said “I will kill you. I will bury you and the children here”.
In March 2006 the father reported that he wanted to blow things up and harm himself.
In 2008 the father refused to take his medication to manage his schizophrenia, attempted to commit suicide and threatened to kill his brother and mother.
On 30 March 2017 the father reduced his medication against medical advice.
On 4 May 2017 the father again reduced his medication against medical advice.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
Ultimately, any order must be one which the Court holds is in the children’s best interest.
Relevant Considerations
There is little evidence of the children’s views in this matter, apart from the mother’s evidence of [X] often covering his ears whenever he heard anything about his father.
The mother has, during her relationship with the father, and since separation, been the children’s primary caregiver.
The children, now aged 7 and 5 years old have not spent time or communicated with their father since they were 4 and 2 years old. During their early childhood, they were exposed to the father’s violent and erratic behaviour, which was directed at them and their mother. The children’s lack of exposure to the father’s anger and hostility has likely been of benefit to them.
The mother has the capacity, and has provided for, the physical, psychological and emotional needs of the children since their birth.
The mother removed the children form a violent household and has since provided them with safe and stable housing and has been actively engaging in appropriate services for them.
Protecting the children from the emotional and psychological damage that can be caused by the exposure to family violence shows the mother has taken appropriate action about long term issues.
The father’s violence and threatening behaviour towards the mother and the children demonstrates a complete lack of insight into the physical and emotional needs of the children.
The father has not availed himself of the opportunity afforded to him by interim orders to send cards, letters and gifts to the children via the mother’s solicitors noting the father was legally represented at the time this order was made.
The father has not provided the mother with any financial assistance for the care and support of the children post separation.
Although the father initially sought orders to spend time with the children and for equal shared parental responsibility, the father has since ceased participating in these proceedings.
The mother’s proposal reflects the current arrangements which have been in place for over two years and as such the children are not likely to suffer any adverse effects from the orders sought by the mother.
The children are not currently spending time with the father. The mother’s proposed orders focus on protecting the children from physical, emotional and psychological harm and abuse which they are at risk of experiencing if they were to spend time with the father, which the Court after hearing the evidence in these proceedings finds to be an unacceptable risk of harm to the children.
The mother and her new husband are (nationality omitted), therefore it is likely that the mother and her new husband will support the children to fully enjoy their (nationality omitted) culture.
Conclusion
The evidence in the proceedings meets the standard required by s61DA(2), and the Court finds that the presumption of equal shared parental responsibility has been rebutted as there are reasonable grounds to believe that the father has engaged in family violence.
In the circumstances where the mother has been the children’s primary carer, where she has met the children’s needs to date and where there is no evidence of any capacity of the parties which would satisfy the Court that the requirements of s65DAC(3) would be met, an order for the mother to have sole parental responsibility is appropriate.
The children will live with the mother. She is the only person who has demonstrated any capacity to meet the children’s needs, and is the only person presently before the Court who seeks such an order.
It is the Court’s finding that the father has not demonstrated a present capacity to meaningfully foster a relationship between himself and the children nor has he demonstrated any capacity to meet any of the children’s needs.
The father presumably remains living in Adelaide. He has not availed himself of the time with the children pursuant to orders made by this Court in December 2017.
The father has not, on the evidence presently before the Court, demonstrated that the children would benefit from having a relationship with him, nor that such a relationship would or could be meaningful within the requisite meaning.
In all of the circumstances, it is the Court’s finding that there should be an order for no time between the father and the children. While such an order is often an order of last resort, in these proceedings, given the findings about risk of harm to the children and the capacity of the father to meet the children’s needs, and given the lack of evidence in respect of any safety guards which might be put in place to protect the children from family violence and the unacceptable risk of harm which has been found to exist[8], an order for no time is an order which is in the children’s best interest.
[8] An order for long term supervised time is on balance not in the children’s best interest
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 20 September 2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Natural Justice
-
Procedural Fairness
-
Remedies
0
4
2