Bao & Cang
[2021] FedCFamC1F 250
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Bao & Cang [2021] FedCFamC1F 250
File number(s): DGC 2209 of 2017 Judgment of: JOHNS J Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – CHILDREN – parenting orders – undefended hearing – parental responsibility – spend time – family violence – sexual abuse – risk – where the father failed to engage in final hearing – where the father has failed to engage with therapeutic avenues – where the father has failed to comply with previous orders – where the mother makes application to proceed undefended – where the mother alleges the father has sexually abused the children – where the mother alleges the father has perpetrated family violence – where the eldest child does not wish to spend time with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 11F, 60B(1) and (2), 60CC(2) and (3), 62G, 64B, 65C, 65DAA, 69ZW
Cases cited: Mazorsi & Albright [2007] Fam CA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Division: Division 1 First Instance Number of paragraphs: 129 Date of last submission/s: 7 October 2021 Date of hearing: 7 October 2021 Place: Melbourne The Applicant: No Appearance Solicitor for the Respondent: Pentana Stanton Lawyers Solicitor for the Independent Children’s Lawyer: Robert Halliday & Associates ORDERS
DGC 2209 of 2017 FEDERAL CIRCUIT & FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAO
Applicant
AND: MS CANG
Respondent
ROBERT HALLIDAY & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
1.That leave be granted for the mother's Further Amended Response to Initiating Application filed 30 September 2021 to proceed on an undefended basis.
2.That all previous parenting orders be discharged.
3.That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children X born … 2010 and Y born … 2013.
4.That the children live with the mother.
5.That the father spend time and communicate with the children at such times and dates as may be agreed between the parties.
6.That the father be permitted to forward to the children letters, cards and gifts.
7.That the mother and the father each keep the other informed of their current email and postal addresses and telephone numbers.
8.That the mother do all such acts and things as may be required to forward to the father copies of the children's school reports.
9.That the appointment of the Independent Children's Lawyer be discharged at the expiration of 30 days from the date of these orders.
10.That all extant applications be otherwise dismissed.
11.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 Bao & Cang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant father, Mr Bao, and the respondent mother, Ms Cang, are parents to two children, X born in 2010 (aged 10) and Y born in 2013 (aged 8) (“the children”). The parents have been in conflict with respect to parenting arrangements for the children since July 2017, when the father filed an Application seeking final orders in the Federal Circuit Court of Australia (as it then was).
At that time the orders sought by the father included that the parties have equal shared parental responsibility, that the children live with the mother and spend time and communicate with the father for specified periods. The mother filed a response in October 2017 in which she sought final orders that she have sole parental responsibility, that the children live with her and that the father’s time with the children be reserved.
The mother raises serious allegations against the father that he has perpetrated family violence and sexual abuse against both the mother and the children. These allegations have led to the involvement of the then Department of Health & Human Services (DHHS), Victoria Police and the Sexual Offences and Child Abuse Investigation Team (SOCIT).
Since the commencement of proceedings, the matter has had a long and difficult procedural history, to which I will refer to in more detail later in this judgment.
In October 2019 interim orders were made providing for the father to spend supervised time with the children. However, as a result of the children, in particular X’s, reluctance to spend time with the father, those orders have not been implemented. The children have not spent time with the father since 2019.
In May 2020 further orders were made for the father to spend supervised time with the children. In addition, orders were made for the child X to attend reportable therapeutic counselling.
The matter was allocated to my docket in late 2020 and was listed for a first day of hearing on 25 February 2021. In July 2021 orders were made for the parties to attend for psychological assessment, including a psycho-sexual assessment of the father. Orders were also made for the father to spend supervised time with Y. The matter was otherwise adjourned for a further case management hearing in February 2022.
Notwithstanding those orders, on 14 September 2021 the Independent Children’s Lawyer requested that the matter be listed for mention due to the father’s request that the appointment for psycho-sexual assessment be cancelled. The matter was listed for mention before me on 7 October 2021.
On 23 September 2021, the father filed a Notice of Discontinuance seeking to discontinue the entirety of his application for final parenting orders.
As a result, the mother filed an Amended Response to Final Orders on 30 September 2021 in which she sought leave for her application to proceed on an undefended basis at the hearing on 7 October 2021.
These are my reasons for judgment with respect to that application.
THE PARTIES
The father is aged 45 years and is currently unemployed. He has worked in administration at various stages of the proceedings.
The mother is aged 43 and is also unemployed. She is reliant upon Centrelink benefits for the support of herself and the children.
The parties commenced their relationship in August 2009 and separated in August 2016.
The children have lived with the mother since separation. Although orders have been made for the father to spend supervised time with the children, his time with them has been sporadic, in part due to his failure to comply with orders made to enable supervised time to occur and also as a result of the children’s reluctance to spend time with him.
BACKGROUND
Proceedings were commenced in the Federal Circuit Court on 18 July 2017, by application of the father. In his Initiating Application the father sought final parenting orders with respect to the parties’ two children. The father also filed a Notice of Risk in which he alleged that the children were at risk of abuse due to the mother’s alleged mental ill health and addiction to alcohol and drugs.
On 26 September 2017 orders were made in the Federal Circuit Court for the appointment of an Independent Children’s Lawyer to represent X and Y. Further interim orders were made by consent as follows:-
(1)That X born … 2010 and Y born … 2013 (“the children”) live with the Mother.
(2)That the Father spend supervised time with the children every weekend for up to two hours on dates and times and under such conditions as determined by the facilitator of time by Family Contact Services (FCS) with the Mother.
(3)That all costs associated with supervised time including intake and assessment and any reports be paid for by the Father.
(4)That both parties do all things necessary to enrol in the FCS Services within 7 days for the purposes of supervised time occurring pursuant to these Orders…
(5)That the Mother make, file and serve a Response, Notice of Risk and any Affidavit no later than 9.00am on 11 October 2017.
(6)That the children be independently represented pursuant to section 68L of the Family Law Act 1975.
…
The mother’s Response to Application for Final Orders filed 20 October 2017 sought final orders that she have sole parental responsibility for the children, that the children live with her and that the father’s time with the children be reserved. The mother also filed a Notice of Risk in which she alleged that the parties’ relationship had been marked by physical, verbal and sexual violence perpetrated by the father; behaviours which she alleges were also perpetrated against the children.
In addition to the allegations of physical, verbal and sexual abuse, the mother also alleged in that Notice of Risk that the father abused alcohol and drugs. Annexed to the Notice was a copy of a Final Intervention Order made against the father in the Magistrates’ Court of Victoria on 10 October 2017, with the mother and two children listed as the affected family members.
On 27 November 2017 orders were made that the parties and the children attend for an assessment pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”).
The following day, 28 November 2017, Judge Jones made further orders transferring the proceedings to the Family Court of Australia (as it then was) with a request for the matter to be considered for inclusion in the Magellan List.
Following the transfer of the matter to the Family Court there were several court events before Registrar George due to the mother’s failure to appear.
On 17 September 2019, the mother again failed to appear at the hearing, this time before Senior Registrar Fitzgibbon who made orders including that:-
·The proceedings be adjourned for hearing on 29 October 2019;
·The DHHS prepare a report pursuant to s 69ZW of the Act;
·The father and the mother each file amended applications and affidavits in support;
·The mother attend the adjourned hearing personally.
At the adjourned hearing interim orders were made by consent before Senior Registrar Fitzgibbon on 29 October 2019 providing as follows:-
(1)That time spent by the applicant father with the children… resume, subject to the following:
(a)That the mother and the children attend the offices of Robert Halliday and Associates… for a conference;
(b)That the first four weeks of time spend and in accord with Order 2(a) be supervised… for the purpose of reintroduction to the father and to assist them doing so and NOTING THAT it is not because of “unacceptable risk” by the father; and
(c)Thereafter [the supervisor] provide an Observation Report and it be sent to both parties and the Independent Children’s Lawyer (“ICL”) by her, with the cost of the supervision and report to be borne equally by the applicant and respondent;
(d)That supervised time be at the directions of [the supervisor]… and the parties are to comply with all reasonable directions; and
(e)That a copy of the Department of Health and Human Services Report, dated 25 September 2019 and any other document the ICL deems necessary be provided to [the supervisor] prior to the first period of time spent, and that letter be copied to the mother and father.
(2)That subject to receipt of the Observation Report, and/or any other order, then the children’s time with the father continue as follows:
(a)for four weeks from 9:00am until 1:00pm each Saturday, commencing as soon as [the supervisor] is available; and thereafter
(b)from 9:00am until 5:00pm each Saturday until 7 May 2020; and thereafter
(c)from 7 May 2020, each alternate week from 3:30pm on Friday until 5:00pm on Sunday; and
(d)any other time agreed between the parties.
(3)That the children spend special occasion time by agreement between the parties, or failing agreement, as follows:
(a)each odd numbered year commencing 2019, Christmas Day with the mother from 9:00am until 5:00pm and Boxing Day with the father from 9:00am until 5:00pm;
(b)each even numbered year commencing 2020, Christmas Day with the father from 9:00am until 5:00pm and Boxing Day with the mother from 9:00am until 5:00pm;
(c)Father’s Day with the father from 9:00am until 5:00pm;
(d)Mother’s Day with the mother from 9:00am until 5:00pm;
(e)on Y’s birthday, with the mother from 3:30pm until 7:00pm and with the father from 7:00pm until 9:00am.
(4)That changeovers for time in Order 2(a) be as directed by [the supervisor] and thereafter at McDonalds, Suburb B…
(5)That all school terms and summer holidays be spent by agreement, and failing agreement, as follows:
(a)with the father for the first half of the term holidays from the first Saturday at 9:00am until 9:00am on the second Saturday (in the non-summer holidays); and
(b)9:00am on the fourth Saturday in the summer holidays NOTING THAT the minute of orders gave no period of time for summer holidays but it is to be until the last Saturday on the weekend before school resumes each year.
(6)That until further order and without any admissions by or on behalf of either party as to the necessity of these orders, each of the mother and father, their servants and/or agents be and are hereby restrained with respect of the children from:
(a)discussing these Court proceedings or any of the evidence with the children, or within their hearing or presence or leaving any Court documents, orders or legal papers where they might see and read them, in any form both hard copy, electronic or on any computer, phone or tablet device;
(b)questioning the children about their wishes; and
(c)denigrating the other parent, their partners or family to the children or in their presence or hearing.
…
On 21 May 2020 the matter was listed for callover before Alstergren CJ who made orders as follows:-
(1)That all previous Parenting Orders be discharged.
(2)That the children… live with the Mother.
(3)That the children spend time with the Father as follows:
(a)Supervised by the E Contact Service (“E Centre”), at the E Contact Service;
(b)Time to occur once per fortnight at a time agreed between the parties and subject to the availability of E Centre, and the parties comply with all reasonable directions of E Centre;
(c)Changeover to occur as directed by E Centre.
(4)That X attend therapeutic counselling… with the goal of improving X’s relationship with the Father, and the cost of the therapeutic counselling to be paid by the Father. The Father will pay counselling fees for one consultation per month, or at such other frequency as may be agreed between the parties.
(5)The Independent Children’s Lawyer be at liberty to obtain a report from X’s counsellor AND IT IS REQUESTED that Victoria Legal Aid cover the cost of said report.
…
Despite these orders providing for supervised time between the father and the children, that time did not occur.
The mother’s unchallenged evidence is that the children have spent no time with the father since 2019 due to their refusal to attend the court ordered professionally supervised visits.
On 16 September 2020 further orders were made by Alstergren CJ setting the matter down for final hearing on a date to be fixed, noting the estimated duration to be two days. In addition, those orders provided for a further Family Report to be prepared pursuant to s 62(G) of the Act.
On 7 October 2020 I made orders in chambers setting the matter down for a First Day Less Adversarial Hearing on 25 February 2021. I also made orders for the parties to make, file and serve material.
On 26 November 2020 the mother filed an Amended Response to Initiating Application. In that Amended Response, she sought final orders as follows:-
(1)All previous parenting orders are forthwith discharged.
(2)The mother have sole parental responsibility for the children…
(3)The children live with the mother.
(4)The father is restrained from spending any time or communicating with the children.
(5)The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
(6)Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.
OR, IN THE ALTERNATIVE
(1)X… continue to attend upon… therapeutic counselling and the mother to comply with the counsellor’s reasonable directions with respect to X’s counselling.
(2)The father attend upon the counsellor at his own expense and comply with the counsellor’s reasonable directions including further appointments if the counsellor so directs.
(3)The Independent Children’s Lawyer obtain a report from the counsellor and that report address, inter alia:
(a)The counsellor’s views (if any) on whether there is a significant risk that X has suffered sexual abuse;
(b)The counsellor’s views (if any) on whether it would be in the children’s best interests for time with the father to commence, and if so, what arrangements for such time would be most appropriate.
(4)The mother be excused from further particularising final orders sought pending the counsellor’s report.
At the 25 February 2021 hearing, I made orders listing the matter for further mention on 20 July 2021 and requiring the ICL to do all things required to obtain an updated report from the eldest child, X’s, psychologist.
At the mention on 21 July 2021, the ICL provided an update which indicated that X continued to participate in counselling. It was also submitted by the ICL, and confirmed by the father, that the parties were open to progressing the matter via therapeutic intervention. That day, the father indicated his desire for the supervised visits with Y to recommence and for the door to be left open for X to attend those sessions if he so wished.
It was submitted by the solicitor for the mother in response to that proposal that due to the risk that the father had sexually abused the children, any supervised time arrangements should be in conjunction with therapeutic interventions, such as counselling.
Upon hearing submissions I made orders as follows:-
(1)The Father attend for a psychosexual assessment … The Father is to be responsible for the cost of [the psychologist’s] report in the amount of $4,400.00 (inclusive of GST).
(2)The Mother attend for a psychological assessment… AND IT IS REQUESTED that the assessment include consideration of the Mother’s capacity to promote and support a relationship for the children with the Father and any intervention that may assist the parties to do so. It is requested that Victoria Legal Aid fund the Mother’s psychological report.
(3)The Independent Children’s be at liberty to provide [the psychologist] with copies of the parties’ court documents, the court orders and any reports prepared in the course of these proceedings.
(4)The parties attend a Victoria Legal Aid Family Dispute Resolution Conference (“FDRS”) following release of [the psychologist’s] Reports and the Independent Children’s Lawyer be able to provide to FDRS copies of the parties’ court documents, the court orders and any reports prepared in the course of these proceedings.
(5)Paragraph 3 of the Orders made by consent by the Honourable Chief Justice Alstergren on 21 May 2020 be varied by deleting the words (in the first line) “That the children spend time with the Father:” and inserting the words “That the child Y… spend time with the Father as follows:”
(6)The Mother and Father do all acts and things necessary to:
(a)forthwith arrange an intake appointment with E Contact Service;
(b)advise the Father and the Independent Children’s Lawyer of the appointment details;
(c)use her best endeavours to ensure that the child, Y… attends supervised time with the Father at E Centre on such days and times as directed by E Centre.
…
Due to the father’s refusal to attend the scheduled appointment for psychosexual assessment because of an alleged lack of funds, the ICL requested that the matter be listed for mention. As a result, the matter was listed for a further mention on 7 October 2021.
In the interim, the father filed a Notice of Discontinuance on 23 September 2021 in which he sought to discontinue the entirety of his application for final parenting orders.
In response, on 30 September 2021 the mother filed her Amended Response to Final Orders seeking that the matter proceed on an undefended basis.
SHOULD THE MOTHER HAVE LEAVE TO PROCEED ON AN UNDEFENDED BASIS?
Given the applicant father’s Notice of Discontinuance and failure to participate in the 7 October 2021 hearing, the mother sought leave to proceed with her application on an undefended basis.
The parties were notified of the hearing listed for 7 October 2021 by the Court by email from my Associate dated 17 September 2021. On 5 October 2021 my Associate sent a further email to all parties confirming arrangements for the hearing to proceed via Microsoft Teams.
At the commencement of the hearing on 7 October 2021, I caused my Legal Associate to telephone the father on the mobile telephone number provided by him in an attempt to have him join the Microsoft Teams hearing. The father did not answer the call and a message was left requesting that the father dial into the meeting via the link he had been provided. The father did not communicate with the Court by telephone, email or Microsoft Teams throughout the course of the hearing or thereafter.
During the course of submissions the mother’s lawyer confirmed that the father had been served with the mother’s Amended Response filed 30 September 2021 and was on notice of her intention to proceed with that application on an undefended basis at the hearing on 7 October 2021. In support of that submission, the mother relied upon a copy of the email from her lawyer to the father dated 30 September 2021 serving her Amended Response to Final Orders (Exhibit R-1).
In addition, the mother relies upon a further email forwarded to the father and the ICL dated 6 October 2021 in which her lawyer confirmed her intention at the hearing on 7 October 2021 to “seek… leave to finalise the matter on an undefended basis, as per [her] Further Amended Response filed and served on the parties on 30 September 2021” (Exhibit R-2).
The ICL supports the mother’s application that the matter proceed on an undefended basis. The ICL relied upon an email sent by him to the father on 5 October 2021 requesting that the father indicate whether he consented to the orders sought by the mother (Exhibit ICL-1). The ICL informed the Court that he received no response from the father to that email and that the father had failed to respond to any correspondence following his service of the Notice of Discontinuance.
In addition to the father’s failure to appear at the hearing, it was submitted on behalf of the mother and the ICL that the father has failed to comply with orders of the Court. For example, the father has not filed an Amended Application or brief summary of issues in compliance with my orders dated 7 October 2020.
Further, it was submitted by the ICL that the father had refused to participate in the therapeutic processes ordered by the Court. In particular, the father has refused to engage in the psychological assessment process in accordance with the orders dated 21 July 2021.
I am satisfied that the father has had notice of the hearing listed on 7 October 2021. Further, in light of the correspondence forwarded to him by both the mother’s lawyers and the ICL, I am satisfied that the father has had notice of the mother’s intention to seek leave to proceed with her application on an undefended basis.
I am also satisfied that the father has been on notice as to the orders sought by the mother in her Further Amended Response to Initiating Application. It has been the mother’s position since the filing of her first response in October 2017 that she seeks orders for sole parental responsibility and that the children live with her. At the time of filing of her original response, the mother sought orders that the father’s time with the children be reserved. That position has been amended by her recently filed Further Amended Response to provide that the children spend time with the father as agreed between the parties. The father has been on notice as to the mother’s amended position since 30 September 2021.
Having regard to the above matters, I am satisfied that the father has been afforded procedural fairness. I am satisfied that the father has had notice of the intention of the mother to seek leave to proceed with her application on an undefended basis and further that he has had notice of the final orders sought by her should such leave be granted.
I am also satisfied that the father has failed to comply with orders dated 7 October 2020 in relation to the filing of his Amended Application and summary of issues and orders dated 21 July 2021 regarding psychological assessment.
Having regard to those matters, I am satisfied that the mother should have leave to proceed with her application for final orders on an undefended basis.
MATERIAL RELIED UPON
The mother relied upon the following documents:-
·Amended Response to Final Orders filed 30 September 2021;
·Affidavit of Ms Cang filed 16 July 2021;
·Affidavit of Ms D filed 8 January 2020;
·Affidavits of Ms C filed 23 February 2021 and 14 July 2021;
·Child Responsive Program Memorandum dated 21 January 2020;
·Exhibits R-1 and R-2, being documents tendered during the course of the hearing.
The ICL relied upon the following document:-
·Exhibit ICL-1, being a document tendered during the course of the hearing.
ORDERS SOUGHT
The mother, pursuant to her Amended Response to Final Orders filed 30 September 2021, seeks orders as follows:-
(1)Ms Cang… (“the mother”) have sole parental responsibility for the children…
(2)The children live with the mother.
(3)The children spend time with the father as agreed between the parties.
At the hearing, the ICL confirmed his support for those orders, with the only additional order sought by him being that the mother ensure the children’s continued attendance with the therapist who has been treating them to date.
It was also common ground between the mother and the ICL that there should be orders that:-
·The father be permitted to forward to the children letters, cards and gifts;
·The mother and the father each keep the other informed of their email and postal address and telephone number; and
·The mother provide to the father copies of the children’s school reports.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They 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).
Parenting orders are defined by s 64B of the Act as including all orders with respect to:-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons; and
(c)the allocation of parental responsibility for a child.
The orders sought by the mother are parenting orders within the definition provided by s 64B, being orders relating to each of these identified matters. The mother indisputably has standing to apply for such orders pursuant to s 65C of the Act, as a parent of the children.
In determining what parenting orders should be made, the court must regard the best interests of the child as the paramount consideration (s 60CA).
Sections 60CC(2) and (3) of the Act provide the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. This is qualified by s 60CC(2)(b) which provides that the Court must give greater weight to the need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence. With the exception of this qualification, the weight afforded to each of the primary and additional considerations is a matter dependent upon the unique circumstances of the case; there is no requirement that the primary and additional considerations be considered in a particular order or for any of such to be afforded greater weight.
As to the manner in which the court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates court be of relevance...
(Emphasis in Original)
The Act imposes a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. For the reasons set out below, I am not satisfied that it is in the children’s best interests for the mother and the father to have shared parental responsibility. I will make orders that the mother have sole parental responsibility for the children.
As a result of my finding that the mother should have sole parental responsibility for the children, the Court is not required to consider whether the children spending equal time or substantial and significant time with each parent would be in their best interests and whether it is reasonably practicable to do so (s 65DAA of the Act).
The evidence of the mother, as contained in her affidavit filed 16 July 2021 is unchallenged.
Findings are made on the balance of probabilities having regard to the evidence before the Court (Evidence Act 1995 (Cth) s 140). In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.
SECTION 60CC CONSIDERATIONS
Primary Considerations: Section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily it is in the best interests of a child to have a meaningful relationship with both of their parents. The question of what amounts to a “meaningful relationship” was considered by Brown J in Mazorsi & Albright [2007] Fam CA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
119. … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents…
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. 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.
(Emphasis in Original)
The children have spent no time with the father since 2019. Notwithstanding a series of orders designed to facilitate the father spending supervised time with the children, that has not occurred. Further, the children have been engaged in therapeutic counselling which has not assisted them in being reintroduced to their father.
Although the father is the applicant, he has now disengaged with the proceedings by filing a Notice of Discontinuance and electing not to participate in the hearing.
Having regard to those circumstances, in my view there is little utility in the Court attempting to frame orders for the father to be reintroduced to or spend time with the children. Given the father’s decision to discontinue his application for parenting orders, I am satisfied that there can be little benefit to the children in attempting to craft orders to facilitate the father’s relationship with them.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Throughout the proceedings the mother has alleged that the children were subjected to family violence and sexual abuse at the hands of the father. In her affidavit filed 16 July 2021 the mother deposes as to disclosures allegedly made by the children in late-2016 which gave rise to the involvement of Child Protection and SOCIT.
The mother alleged that the children had made disclosures of sexually inappropriate behaviour by the father and further that the children were having night-terrors and difficulty sleeping. She also deposes that the children appeared “extremely anxious and upset” when seeing the father and that they would cry prior to his visits. She also deposes that the child Y’s toilet-training regressed at that time and that X appeared fearful of men.
As a result of those alleged disclosures the mother refused to permit the children to spend time with the father. It was following those events that the father filed his original application in July 2017.
Following the filing of that application orders were made for supervised time; that time was originally supervised by the maternal grandfather. After two occasions of supervised time the mother deposes that the maternal grandfather refused to provide further supervision due to his concern that the children, and particularly X, were very distressed during those periods.
Notwithstanding orders made for the father to spend time with the children at a supervision centre, the father did not complete the requisite applications for such time with that service in a timely fashion. As a result, that time did not occur.
Supervised time resumed with the support of a professional supervisor in November 2019 but there have been no further supervised visits since 7 December 2019 following a notification of risk being made to the Department of Health and Human Services (as it then was).
In the Child Responsive Program memorandum dated 21 January 2020 Family Consultant F reports as to her interviews with both children. She reports at pages 4 and 5 of that memorandum of X’s disclosures in relation to the father’s behaviour. At paragraph 23 she reports that X said:-
I don’t want to see our dad because he did bad stuff … when we saw him at his house and when mum was not nearby.
At paragraph 24 of the memorandum Family Consultant F records X saying:-
I already told them…the police and child protection…he would do naked massages…we had to take off our clothes…I didn’t want to…I said no but he still done it anyway…he done it multiple times to me and Y also…even when he still lived with us…I can’t exactly remember where on my body he did the massage…it makes me feel uncomfortable and I didn’t like being massaged…I told him to stop but he didn’t listen.
At paragraph 25 of the memorandum the Family Consultant further records X saying:-
…he would want us to bath or shower with him even if we didn’t want to. Sometimes it was just me and dad and sometimes it was Y also…once in the bath he did gross stuff…like he touched my ding-dong/doodle and I didn’t like it…it only happened one time.
As a result of her observations for the purpose of that memorandum, Family Consultant F made a series of recommendations including that the children continue to live with their mother and that the children’s time with the father be supervised.
Throughout the proceedings the father denied the allegations raised against him by the mother as to family violence and sexual abuse. However, whilst I make no findings in relation to those allegations, in circumstances where the mother’s evidence is unchallenged, and where the father has elected not to participate in the proceedings, I am satisfied that it is necessary to make orders to ensure that the children are protected from the risk of physical and psychological harm arising from being subjected to or exposed to family violence or abuse within the father’s care.
I must now consider the additional considerations.
Additional Considerations: Section 60CC(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;
Throughout the many years of proceedings, the eldest child, X, has expressed in the strongest of terms his desire to spend no time with the father.
At interview for the preparation of the Child Responsive Program Memorandum, Family Consultant F reports X’s attitude to spending time with his father at paragraph 27. She reports X stating as follows:-
I’m never going to forgive him. I never want to see him or talk to him or be anywhere near him…he could do the same bad things as before…I will never feel safe around him even if he has changed.
In addition, Family Consultant F reported that X was unwilling to consider either meeting with the father or writing him a letter to set out his thoughts and feelings. At the time of that interview X was aged nine years.
In her evaluation, Family Consultant F noted X’s steadfast refusal to engaging at any level with the father noting that even at supervised visits, X had become increasingly resistant and requested to leave after only a few minutes.
At paragraph 64 of her memorandum, Family Consultant F noted that:-
X has expressed his views in a clear and articulate manner and whilst the possibility of him identifying with his mother’s negative view of the father cannot be discounted, X’s expressed views appear to be based on his own reported experiences. Whilst it is acknowledged that X is only nine years old and his views cannot be determinative his views need to be considered by the Court.
Y was observed to be more ambivalent in reaction to spending time with his father than his older sibling. At the time of the preparation of the memorandum, Y was aged six years. At paragraph 67 of the memorandum Family Consultant F noted that Y had expressed a desire to continue to spend time with the father on a regular basis and had not identified any concerns in this regard.
There was no challenge to the evidence of Family Consultant F. Accordingly, I accept her evidence as to the views expressed by each of the children at assessment.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
and
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The mother has been the children’s primary care-giver since the parties’ separation in 2016. Since that time, she has been responsible for attending to all of the children’s physical, emotional, psychological and intellectual needs. The mother has facilitated the children’s engagement with therapeutic counselling and when the father failed to contribute to the child X’s counselling, undertook responsibility for payment for that therapy.
The mother has been the parent principally responsible for the children’s long term and day to day care for a period of approximately five years. Having regard to the evidence of the Family Consultant, Ms C and the mother I am satisfied that the mother is devoted to the care of the children and is attuned to their needs.
The father has spent no time with the children since late 2019.
In the Child Responsive Program Memorandum, Family Consultant F observed at paragraph 63 that the child X has steadfastly refused to engage at any level with the father. His position was confirmed by the Family Contact service supervisor, Ms D, in her report dated 10 December 2019 annexed to her affidavit filed 8 January 2020. The evidence of both the family consultant and Ms D is unchallenged and I accept that evidence.
Notwithstanding multiple orders made to facilitate the reintroduction of time between the father and the children in a supervised setting, such attempts have been unsuccessful. That this is so is in part attributable to the father’s refusal to engage with Court processes.
For example, the father has failed to attend for psycho-sexual assessment as ordered by the Court. Further, Ms C, the psychologist engaged by the parties to provide therapeutic counselling to the children, reports at page 6 of her affidavit filed 14 July 2021 that the father was invited to participate in her initial intake session prior to X commencing therapy with her. She notes that the father declined that invitation as he did not wish to pay for the session. As a result, the father has not participated in the children’s therapeutic counselling.
I am satisfied that the failure of the father to engage with assessment and therapeutic processes designed to facilitate and support his relationship with the children has adversely impacted on his ability to have a relationship with the children.
(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;
The mother deposes at paragraph 36 of her affidavit that she has never received child support from the father; whilst the father was initially assessed to pay child support, he did not do so. As a result, the mother sought an exemption from Centrelink with respect to her obligation to seek child support from the father, as the child support assessment had the effect of reducing her entitlement to Family Tax Benefits.
The mother deposes that she is solely responsible for the children’s support and that she is reliant upon her entitlements from Centrelink to provide such support. In addition, she deposes that she receives financial assistance from her partner and her mother.
I accept the mother’s unchallenged evidence in relation to the financial support she provides to the children.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the mother will ensure a continuation of the existing arrangements for the children.
I am satisfied that the mother has and will continue to appropriately attend to all of the children’s physical, emotional and intellectual needs. In circumstances where the father refused to provide financial support for X’s attendance upon therapeutic counselling, the mother has provided that support and has been solely responsible for meeting the costs of such therapeutic counselling without assistance from the father.
Having regard to those matters I am satisfied that the mother will continue to provide appropriate support for all of the children’s physical, emotional and intellectual needs.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The children spend no time with the father and that arrangement will continue upon the finalisation of these proceedings.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has provided for the children’s physical, emotional and intellectual needs since the parties’ separation in 2016. She has demonstrated a commitment to the care of the children and to her responsibilities as a parent. The mother has had the support of her partner and her mother who have provided her with financial assistance in the care of the children.
The father, by disengaging with the proceedings, has effectively absented himself from the children’s lives. Given his withdrawal from the proceedings and his failure to provide financial assistance for the children, I am satisfied that he has shown little commitment to his responsibilities as a parent.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
The mother alleges that the father has perpetrated family violence against her and the children and that he has also sexually abused the children.
The child X has also reported to Family Consultant F that he has been subjected to inappropriate sexual touching by the father. Further, at paragraph 29 of her memorandum, Family Consultant F reports that X stated that he had witnessed his father having hit the mother ‘multiple times’ including ‘when he would pin me on the bed and she would try to get him off me and then he would hit her’. Family Consultant F also reports that it is clear that X witnessed verbal arguments between the parents on a regular basis.
The father denies the allegations that he has perpetrated family violence against the mother or the children. However, the father did acknowledge to Family Consultant F that there had been verbal arguments prior to the parties’ separation.
Following the separation, in October 2017, a final intervention order was made against the father for the protection of the mother and the children. That order has since expired.
(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;
The children have been the subject of court proceedings since 2017. As a consequence, the children have been exposed to assessment and interview by a family consultant of this Court. In addition, they have been interviewed by workers from the Department of Health and Human Services (as it then was), Victoria Police and SOCIT as a result of their alleged disclosures of sexual abuse.
There have been numerous court events since the proceedings commenced in 2017.
The mother deposes that X suffers from anxiety as a result of his exposure to abuse and violence at the hands of the father. X has been undertaking therapeutic counselling with Ms C as a result of those concerns since October 2020.
In her two affidavits filed in the proceedings, Ms C reports as to her observations that X presents as anxious, that he pulled his eyebrows and eyelashes during interview, that he experiences stress and difficulty sleeping and that he has difficulty concentrating. In her second report dated 14 July 2021, Ms C reported at page 6 of the second affidavit that:-
X presents as lacking in self-confidence and this was particularly apparent in one session when he could not pick out three strengths that he thought he possessed.
Ms C recommends that X continue to engage with therapeutic counselling to assist with these matters.
The evidence of the mother and Ms C indicates that the children have been deeply affected by the alleged violence and abuse perpetrated by the father and their parents’ separation. The children have endured a long period of instability as a result of the ongoing litigation. I am satisfied that the children’s best interests will be served by final orders that will bring an end to the proceedings and provide them with certainty and stability in relation to the future parenting arrangements.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances relevant to this matter.
CONCLUSION
The mother seeks an order that she have sole parental responsibility for the children. That application is supported by the ICL.
I am satisfied that in circumstances where the mother has been solely responsible for all aspects of the children’s day-to-day care, welfare and development since the parties’ separation in 2016 and where the father has disengaged from the Court proceedings, it would be contrary to the children’s best interests were there to be orders that the parties have equal shared parental responsibility. An order that the mother have sole parental responsibility reflects the realities of the children’s lives, as she has assumed primary responsibility for all aspects of their care since the parties’ separation.
An order that the mother have sole parental responsibility will enable her to continue to fulfil those responsibilities as the children’s primary care-giver without interruption. I am satisfied that an order in those terms is in the children’s best interests. Accordingly, I will make orders as sought by the mother that she have sole parental responsibility.
The mother also seeks orders that the children continue to live with her. That application is also supported by the ICL. Again, an order in those terms reflects the reality of the children’s lives. Such an order will also ensure the children have ongoing stability and security in the mother’s care. Accordingly, I am satisfied that it is in the children’s best interests that an order be made in those terms.
The mother seeks orders that the children spend time with the father as agreed between the parties. The ICL supports an order in those terms. Given the mother’s support for that order, which will have the effect of leaving the door ajar for the father to re-establish a relationship with the children in the future, I am satisfied that such order is appropriate and in the children’s best interests.
Both the mother and the ICL also confirmed during submissions that they would support orders that provide the father the opportunity to forward to the children letters, cards and gifts. In order to facilitate that arrangement, the mother proposes that the mother and father each keep the other informed of their email and postal addresses and telephone numbers. Further, the mother confirmed her commitment to provide to the father copies of the children’s school reports.
Again, those orders are supported by the ICL.
In my view, it is important to the children, particularly Y who expressed to the Family Consultant some openness to having a relationship with his father, that the father have the opportunity to communicate with the children as proposed by the mother.
I am also satisfied that it is in the children’s best interests that the father be kept informed as to their progress at school; maintaining that connection may provide an avenue for the children to pursue a relationship with the father in the future.
As to the ICLs proposal that there be an order for the mother to continue to ensure the children’s attendance at counselling, I do not consider such order is necessary in circumstances where I am satisfied the mother is already appropriately engaging with such services and where I have determined that she should have sole parental responsibility for all aspects of the children’s care.
Accordingly, the orders that I make are as follows:-
(1)That leave be granted for the mother’s Further Amended Response to Initiating Application filed 30 September 2021 to proceed on an undefended basis.
(2)That all previous parenting orders be discharged.
(3)That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children X born … 2010 and Y born … 2013.
(4)That the children live with the mother.
(5)That the father spend time and communicate with the children at such times and dates as may be agreed between the parties.
(6)That the father be permitted to forward to the children letters, cards and gifts.
(7)That the mother and the father each keep the other informed of their current email and postal addresses and telephone numbers.
(8)That the mother do all such acts and things as may be required to forward to the father copies of the children’s school reports.
(9)That the appointment of the Independent Children’s Lawyer be discharged at the expiration of 30 days from the date of these orders.
(10)That all extant applications be otherwise dismissed.
(11)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 7 December 2021
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