BENJAMIN & BENJAMIN

[2020] FamCA 113

FAMILY COURT OF AUSTRALIA

BENJAMIN & BENJAMIN [2020] FamCA 113

FAMILY LAW – CHILDREN – Best Interests – Undefended Parenting – Where the father failed to attend a number of court events and failed to comply with trial directions – Where appropriate the matter proceed on an undefended basis – Where the father has perpetrated significant family violence – Where the father has a history of significant mental health issues – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Benjamin

RESPONDENT: Mr Benjamin

INDEPENDENT CHILDREN’S LAWYER: Ms Shedden

FILE NUMBER: PAC 3622 of 2016

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Morrison of Mahony Family Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Benjamin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders Made On 18 December 2019

1. That the mother shall have sole parental responsibility for the children X born … 2003, Y born … 2007 and Z born … 2005 (“the children”).

2. That the children shall live with the mother.

3. That the father shall spend no time with the children.

4. That in the event of the children, or any of them, suffering a medical emergency or serious illness requiring hospitalisation, the mother shall use her best endeavours to notify the father in writing as soon as practicable.

5. That within seven days of the mother making a major long-term decision for the children, she is to notify the father in writing of the decision.

6. That within seven days of the date of these orders the mother shall provide to the father a postal address for the purpose of the father sending letters, cards and gifts to the children, and the mother shall keep the father informed of any change to that postal address.

7. That within 14 days of the date of these orders the father shall provide to the mother a postal address for the purpose of the mother exchanging information in accordance with these orders.

8. That the mother shall within 14 days of receiving the children’s school reports provide them to the father, to a postal address nominated by the father and noting that the mother is at liberty to redact any references in the school reports that disclose information related to the children’s residential address.

9. That the children shall communicate with their father by telephone in accordance with their wishes and for this purpose the father shall ensure that he keeps the mother advised of his current telephone number by sending written notification of his current telephone number and any changes to his telephone number to the mother at her nominated postal address.

10. That unless expressly provided for in these orders, pursuant to section 68B of the Family Law Act 1975, the father MR BENJAMIN born … 1967 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the mother MS BENJAMIN born … 1970 by any means whatsoever, including through any third party and further, MR BENJAMIN is restrained from:

    (a)Attending at or being within 500 metres of the ordinary place of residence of MS BENJAMIN; and

    (b)Attending at or being within 500 metres of any place of employment of MS BENJAMIN.

11. That unless expressly provided for in these orders, pursuant to section 68B of the Family Law Act 1975, the father MR BENJAMIN born … 1967 shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the children X born … 2003, Y born … 2007 and Z born … 2005 by any means whatsoever, including through any third party and further, MR BENJAMIN is restrained from:

    (a)Attending at or being within 500 metres of the ordinary place of residence of the children X born … 2003, Y born … 2007 and Z born … 2005; and

    (b)Attending at or being within 500 metres of any school, or educational institution attended by the children X born … 2003, Y born … 2007 and Z born … 2005.

12. IT IS NOTED that the above orders 10 and 11 herein and each of their subparagraphs pursuant to section 68B of the Family Law Act 1975 are injunctions to which section 68C would apply and accordingly, any police officer made aware of these orders and whom on reasonable grounds believes that such orders and injunctions have been breached by the father MR BENJAMIN by either harassing, molesting, stalking or physically harming or threatening to harm the mother MS BENJAMIN and/or the children X born … 2003,  Y born … 2007 and Z born … 2005 may arrest the father without warrant.

13. That pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.

14. IT IS NOTED that order 1 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.

IT IS FURTHER ORDERED THAT

1. Final Reasons for judgment to be published on a date to be fixed.

2. By consent the mother and father each pay by way of contribution to the Independent Children’s Lawyer’s costs their respective contribution of $1,650 such payment to be paid to Legal Aid NSW within three (3) months of this date provided always that the parties’ obligation under this order be subject to any application for waiver of that obligation that they may make to Legal Aid NSW.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benjamin & Benjamin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3622 of 2016

Ms Benjamin

Applicant

And

Mr Benjamin

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 5 August 2016.

2. The application concerns three children: X (“the oldest child”) who was 16 years old at the time of hearing, Z who was 14 years old at time of hearing (“the middle child”) and Y who was 12 years old at the time of hearing (“the youngest child”).

3. At trial, the mother relied upon the following documents:

   a)A Further Amended Initiating Application filed 25 July 2019;

   b)Her affidavit filed 8 August 2019; and

   c)A Notice of Risk filed 5 August 2016.

4. The mother sought orders as set out in a Minute of Order contained in her Case Outline that:

   a)She have sole parental responsibility for the children;

   b)The children live with her and spend no time with the father;

   c)Required her to notify the father of any medical emergency or serious illness suffered by the children and of any major long-term decisions for the children;

   d)Required her to provide a copy of the children’s school reports to the father;

   e)Would permit the father to send the children letters, cards and gifts to the children;

   f)Required her to provide a copy of the children’s school reports to the father;

   g)That the children be permitted to communicate with their father via telephone in accordance with their wishes;

   h)That the father be restrained from contacting or approaching the mother and children; and

   i)She be permitted to travel overseas with the children and that she be able to obtain a passport for the children without the consent of the father.

5. The Independent Children’s Lawyer (“ICL”) relied on the evidence adduced by the mother and supported the orders sought by her.

6. Orders were made by the Court in the terms sought by the mother on 18 December 2019 and reasons were reserved. These are those reasons.

Context

1. The mother was 49 and the father was 52 years old at the time of hearing.

2. The parties commenced a relationship in 1989 and separated in March 2015 on a final basis.

3. The children referred to above are the children of the parties’ relationship.

4. Following separation, the children lived with the mother and spent time with the father as agreed between the parties. On a number of occasions the father took the middle and youngest child into his care despite their agreement without the consent of the mother by collecting the children from school without the mother’s knowledge. The mother became concerned for the children’s safety and wellbeing after she received concerning text messages from the father and found that the father was not sending the children to school.

5. The mother commenced proceedings on 5 August 2016 in the Federal Circuit Court of Australia. She filed an application seeking a Recovery Order and orders were then made that the children be recovered into the mother’s care and that the children live with the mother.

6. The children have since lived with the mother and the maternal family pursuant to court orders save for another occasion which the father unilaterally took two of the children into his care in breach of court orders.

The proceedings

1. On 6 December 2016 the father filed Response to the mother’s Initiating Application seeking orders that he have sole parental responsibility for the children, that in effect provided that the children live with him and spend supervised time with the mother.

2. On 16 August 2016 a Recovery Order was made requiring the father to return the children to the mother and for the children to live with her. An order was also made restraining the father from coming within 100 metres of the mother’s premises and of schools attended by the children and it was noted that this order was made for the protection of the mother and children from the father. 

3. The matter again came before the Court on 28 October 2016 and, given the father’s non-attendance, the matter was listed for undefended hearing.

4. On 21 November 2016 the father was in attendance so the matter did not proceed undefended, however, directions were made that he file an amended Response and if he failed to comply it was anticipated the matter may proceed undefended on the next occasion.

5. On 20 December 2016 the parties were ordered to attend upon a family consultant for the purpose of participating in a Child Inclusive Conference.

6. The proceedings were seemingly delayed at various stages while the matter was in the Federal Circuit Court due to delays in advancing the property side of the proceedings and also by reason of the father’s imprisonment for earlier offences.

7. On 1 March 2018 the proceedings were transferred to the Family Court of Australia and on 22 March 2018 the parties were ordered to attend upon a family consultant for the preparation of a Family Report.

8. On 25 October 2018 (as amended 22 July 2019) orders were made by consent resolving the final property proceedings. The orders provided for each party to retain certain assets and settled the dispute in relation to third party interests in matrimonial assets.

9. On 16 April 2019 trial directions were made in relation to the parenting proceedings.

10. The proceedings were before the Court on 22 October 2019 and on that date, noting that the father had failed to comply with trial directions, the Court ordered that the mother’s application be adjourned for undefended hearing and further filing directions were made for this date.

11. On 18 December 2019 the matter proceeded undefended despite the father’s attendance on this occasion as the father had still not complied with directions for filing. The mother pressed for orders to be made as sought by her. The unrepresented father was present and informed the Court that he did not consent to the orders sought by the mother and required the Court to exercise its judicial function and make orders in the best interests of the children.

12. Orders were made as set out above, inter alia, that the mother have sole parental responsibility for the children, that the children live with her and spend no time with the father and other associated orders.

Procedural fairness

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

2. Further, rule 11.02(2)(c) of the Rules provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

3. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

4. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

5. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…

6. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

7. Such is the case presently before the Court for consideration.

8. In circumstances where the father has failed to attend on a number of occasions throughout these lengthy proceedings and more recently has failed to comply with trial directions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

Family Report

1. On 23 January 2019 the parties attended upon a family consultant for the preparation of the Family Report.  At the time of the Family Report the father had not seen the children in over a year and a half. Due to an enforceable Apprehended Domestic Violence Order (“ADVO”) that was in place at the time restricting the father’s contact with the subject children, the father was not observed with the children.  The family consultant’s assessment was limited to the father’s relationship with the children based on the reports provided by the parties and the children.  The family consultant also interviewed other members of the maternal and paternal family by phone.

2. The father told the family consultant that he sought orders for equal shared parental responsibility and to re-establish a relationship with the children whether through supervised visits or alternate weekend time.

3. The mother told the family consultant that she was concerned about the harm that may result if the children were to spend even supervised time with the father.  She expressed concern arising from the father’s history of drug use, including the use of “ice” (methamphetamine), that he may enter a drug induced psychosis and harm the children. Both parents also alleged that the other had a history of significant alcohol misuse. While the father contended that the mother “drinks a lot” he said he is not concerned about her drinking as he just “wanted access to the children”.

4. The father was convicted of driving under the influence of alcohol in 2009 and 2012 and had his licence suspended on both occasions.  The father said that he no longer consumed alcohol and that this second offence made him “swear off drinking”. The father denied any past or current drug use.

5. The mother reported that she had also been convicted for Driving Under the Influence (DUI) in 2015 and that her license had been suspended for six months as a consequence.  She reported that she now rarely drinks alcohol. The maternal grandmother told the family consultant that the mother used to drink a lot and it used to be a problem but now does not drink to excess.

6. The father reported to the family consultant that he had been diagnosed with schizophrenia in 2015. The father told the family consultant that he now has an insight into his diagnosis and is well treated for this illness. The family consultant opined that if the Court determined the father was managing his mental illness adequately, the Court could consider the younger children spending some time with him and that the father’s housemate may be a suitable option providing supervision. 

7. The mother reported concerns that the father would “take off” with the children as he had previously threatened that “if he had gotten the third one, you would not see them again” referring to the time he had taken two of the children from the mother’s home in 2017. The mother was also concerned that the father would “knock the person out and take off with the kids” if his time with the children was supervised.

8. The family consultant also interviewed the father’s housemate (the father’s deceased cousin’s partner). She stated that she had been “straight up with [the father] that he has done the wrong thing” but expressed the view that it would benefit him to spend time with the children.

9. The maternal grandmother expressed the view that the father “breaking into the home” had frightened the children and she felt “they were traumatised” by this experience.  She told the family consultant that the father had “done too much to those kids and they do not want to see him”. 

10. The oldest child told the family consultant that she would rather not see the father again, but that she “might talk to him on the phone, if he was better” explaining that the father took drugs that caused his behaviour to change and that he would need to stop taking them to be better.  She also explained that the father would ask her “weird questions” thinking that there were people in the house and she said she would “say yes to things that weren’t true” to get the father to stop asking questions.

11. The middle child presented to the family consultant as having mannerisms and rigidity of thought process consistent with his reported diagnosis of autism.  The middle child did not express any opinion about spending time with the father.

1. The youngest child told the family consultant that she was not sure how she would feel about spending time with the father and said that she didn’t know much about him.  When the family consultant explored this further the youngest child said she “was not sure about what it was, but it just doesn’t feel good”.

2. The family consultant opined:

   [The children] each appear to have well established and generally positive relationships with [the mother]. The presentation and demeanour of the children was not suggestive of neglect and nothing arose during the course of the assessment to suggest that [the mother] is not suitably meeting the children’s parenting needs.

3. The family consultant expressed the view:

   [The mother] and [the father] to not appear to have any functional post-separation parenting relationship, involving communication and shared decision-making regarding the children, nor does [the mother] appear to be willing to establish one in the future.  This lack of ongoing parenting relationship may impact the ability of [the children] to re-establish a positive relationship with [the father]. [The mother] has reported experiences, may lead to her having difficulties with accepting that [the father] is adequately treated and stabilised with his mental health and to promote a positive relationship between the children and [the father] as well as prioritising the children’s needs above her own.

4. The family consultant also expressed the view that if the Court determined there was veracity to either allegation relating to the parents of drug and alcohol use, then the parents may benefit from attending a drug and alcohol counselling program to obtain support.

The father’s perpetration of family violence

1. The father perpetrated significant family violence throughout the parties’ relationship.  Between 2013 and 2015, the parties separated and reconciled on approximately five occasions due to the father’s perpetration of family violence.  During the periods of separation, the father had limited contact with the children and only spent time with them in public places.

2. The father began perpetrating violence after he lost his job in 2013 and had his driver’s licence suspended. It was around this time that the mother suspects the father started using the drug “ice” which he has used on and off since this time.

3. The mother describes in her affidavit and told the family consultant how the father would accuse her of having an affair and placed audio recorders and video cameras in the house to monitor her behaviour. At various points the father physically assaulted the mother and threatened her with a knife.

4. The mother describes that although the father did not physically abuse the children, he would scream at them and interrogate them about his suspicions of the mother’s infidelity.

5. The mother also describes how the father would sleep with a knife under his bed, search for listening devices in the house and in different objects and not let the family eat certain foods due to a fear of being poisoned. She also reports that the father had placed a tracking device and camera in her car to monitor her movements, would take a phone away from her and were to restrict her from spending time with her friends. This is consistent with what is contained within the objective evidence discussed later in this judgment.

6. Various ADVOs were issued during the parties’ relationship which permitted the father to still reside with the mother but prevented him from drinking alcohol, assaulting, intimidating or stalking the mother and children.  The father breached the condition of a number of the ADVOs issued which is documented in police records.

Objective Evidence

1. The father’s perpetration of violence towards the mother is well documented in the records produced from various criminal proceedings and in police records (Exh “E”, Exh “F”, Exh “G”, Exh “H”, Exh “I”, Exh “J”). The father was charged with assaulting the mother on four different occasions.

2. In April 2014 the father was charged with assault occasioning actual bodily harm perpetrated towards the mother, intentionally or recklessly destroy/damage property and common assault. It is recorded in the Police Fact Sheet that the father had returned home after an afternoon of drinking with his cousin. As soon as the father entered the home he accused the mother of being a liar and then by grabbing her hair he pulled her to the floor. The father then started punching the mother to the head. He then dragged her into the hallway at which point the children came out of different rooms and yelled at the father to stop. The father initially released the mother but later grabbed the mother again and started punching her to the head and stomach. Again the father released the mother and at some point later walked to the dining room and flipped the dining table causing all the items on the table to fall including a crystal vase and two bowls. The mother then called emergency services who attended alongside police. Police observed the mother to have two black eyes, bumps to her forehead and blood on her face and in her hair. They also observed hair on the father similar to the colour of the mother’s hair, blood on him and a trail of blood in the house. The father was taken to hospital where he was later arrested and subsequently charged. 

3. In July 2014 the father appeared before the court in relation to these charges. The charges were dealt with under the Mental Health (Forensic Provisions) Act 1990 and the charges were dismissed with orders that he be discharged subject to a requirement that he “take prescribed medication/attend counselling/treatment in accordance with medical advice/nominated psychiatric/psychologist … or her delegate” (Exh “K”).

4. It is documented in police records (Exh “I”) that in March 2015 the father again was charged with common assault, stalk/intimidate, intend fear of physical harm and contravening an ADVO for offences perpetrated towards the mother. The police “Facts Sheet” documents a series of paranoid behaviours and associated violent and intimidating acts perpetrated by the father towards the mother. This included occasions where the father hit the mother to the back of her head and on another occasion put his hands around her throat and threatened her with his clenched fist while interrogating her about affairs he suspected she was having with other men. On various occasions the father would threaten the mother with violence and on one occasion threatened to kill her as he was suspicious that wires had been planted in the home. The mother finally reported a series of assaults and threats made by the father to her including death threats to police and a number of photographs were taken of the bruising to the mother’s arms. The father in June 2015 was dealt with by way of a two year good behaviour bond and orders were made requiring him to take prescribed medication and attend counselling and treatment in accordance with medical advice.

5. In April 2016 a Final ADVO was issued and in force for 12 months providing in conjunction with the standard orders that the father must not go within 100 metres of the mother’s place of work or where she was residing. 

6. In August 2016 the father was charged with assault on the mother occasioning actual bodily harm, common assault and two counts of contravene prohibition/restriction in ADVO. It was reported to the police that the father had attended the address where the mother was living with the intention of collecting the oldest child (as he had already taken the other two children into his care). When the mother went to the father’s car to tell the youngest child to get out of the car, the father punched the mother in the head, causing her nose to bleed. The maternal grandmother who was there at the time called the police. When the maternal grandmother went to speak to the youngest child, the father pushed her from behind causing her to fall forward into the car. When police attended, the father told them “I’m here and I shouldn’t be. I’m breaching my ADVO”. The father was then placed under arrest and taken back to the police station where he was charged.

7. In 2016 the father pleaded guilty to offences that he had contravened the conditions of the current ADVO but pleaded not guilty to the other offences of assault occasioning actual bodily harm and common assault. The Magistrate ordered that the father be taken and detained in a mental health facility for assessment in accordance with the Mental Health Act 2007 (NSW). It was ordered that if the father was on assessment found not to be a mentally disordered person within the meaning of the Mental Health Act 2007 (NSW), he was to be brought back before the magistrate or an authorised officer. He was not brought back before the Court.

8. The father is currently serving a two year and nine month sentence by way of an Intensive Correction Order (“ICO”) imposed in 2019 for the offences perpetrated on the mother and relating to the children that took place in July 2017 (Exh “E”). The father was convicted of:

   a)Aggravated break and enter;

   b)Commit serious indictable offence with use of violence;

   c)Take with intent to obtain advantage (in relation to the middle child); and

   d)Take with intent to remove from parental control (in relation to the youngest child).

9. In July 2017 the father climbed through an open window at the property where the mother was residing. He then threatened the mother, saying “I am going to fucking kill you, cunt” and by grabbing her hair dragged her to the ground. The father then punched the mother several times with a closed fist to the side of her head and then used his knee to hit her on her back, buttocks and head. The children were present during the assault. It is recorded that the father then told the children to “get outside to the car and I’ll stop bashing mummy”. The middle and youngest child did as they were instructed with the father following them out while the oldest child ran out to the backyard and called triple zero, reporting that she had seen the father “hurt” her mother. The father then walked the middle and youngest child to his car and drove off with them while the mother called the police to report what had happened. The police did not locate the father and children until 5.00 pm the next day at which point they arrested the father.  The father said to the police words to the effect “you’re lucky I never got my third one. If I got her, you’se would never have found me. I was gone. I couldn’t leave without her.” When the police inquired where the father was planning to go, the father replied “Don’t worry, I have it all planned out”.

10. The police applied for a provisional ADVO on 14 July 2017 which protected the mother and the children from the father. On 14 March 2018 a final ADVO was made protecting the mother and children and provides that the father not approach or contact the mother and children in person or by any means.  This will expire in March 2020.

11. The father was incarcerated on remand between July 2017 and March 2018. In 2019 the father was given an aggregate sentence of two years and nine months for the offences committed in July 2017. The sentence was ordered to be served by way of ICO with various conditions including:

    a)That the father does not commit any offence;

    b)That he submit to supervision by a community corrections officer, he submit to electronic monitoring for the duration of the ICO;

    c)That he perform 200 hours of community service work;

    d)He attend and remain under the care and accept treatment from certain mental health practitioners; and

    e)He comply with medication as directed by his treating doctor.

12. The ICO will expire in December 2021.

Father’s Mental Health Records (Exh “K”)

1. The father’s paranoid ideations of the mother’s supposed infidelities and surveillance of him is well documented in medical records produced by different medical practitioners who have treated the husband at various points in time.

2. As at March 2014, the father’s diagnosis was “major depressions with psychosis” and his treatment plan included medication, fortnightly visits with a clinical psychologist and ongoing GP counselling.

3. In a letter prepared from a treating psychiatrist from 2014, it is recorded:

   Unfortunately, at the last session with [the father] on the 18th December 2014, whilst he presented as euthymic in mood, polite and co-operative, it soon became clear that he experiencing paranoid ideation again (report that people have been following him in cars. He admitted to kicking in a couple of car doors and yelling abuse at passers-by assuming they were in on the plot to intimidate him. As such [the father] reported that he traded in his car for a new one, purchased a new phone and had his iPad wiped so that these alleged individuals would be unable to locate him…

   I believe that [the father will need to be urine tested for amphetamines (and other illicit substances)… I will continue to monitor and assess psychotic symptoms and risk levels. During his last session [the father] denied any plan or intent to harm [the mother] (despite feeling betrayed by her. I am concerned regarding his level of changeability however, given that at certain times his delusions appear to get the better of him.

4. A letter dated 1 June 2015 from a psychiatrist who had treated the father on an occasion that he had been admitted to the psychiatric unit of a hospital in March 2015 documented the following:

   …On admission it was clearly evident that [the father] was suffering from paranoid delusions. Essentially [the father] believed his partner was involved in some form of internet pornography, that she had been unfaithful, that somehow she had arranged for their house to be rewired and that he had been under surveillance. [The father] gave a multitude of illogical and improbable observation to support his thoughts.,, [The father] also alleged that he had placed “recorders around the house” but they only recorder what he called “white noise” meaning that his wife had once again had interfered with the recorders.

   …[The father] accepted treatment with antipsychotic medication… [The father] displayed a good, rapid and sustained response to the antipsychotic. Examination on the 12th March, 2015 revealed that he no longer harboured any psychotic ideation…

5. The psychiatrist recorded that the father clearly suffered from Paranoid Disorder which is not related to drug and alcohol abuse and responded well to antipsychotic medication.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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 child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In relation to parental responsibility, the family consultant was of the view:

   Given the allegations of family violence, the continuing parental conflict, and poor communication between the parents shared parental responsibility appears contra-indicated, and is likely to lead to the children being exposed to further parental conflict. In this situation it is recommended that orders be made that provide for the parent the children live with to have sole parental responsibility for the children.

9. In the present case, the Court is easily satisfied having regard to the objective evidence that the father perpetrated serious family violence towards the mother. Given the background of family violence the presumption does not apply, and in accordance with the recommendation of the family consultant the order sought by the mother that she have sole parental responsibility is in the children’s best interests.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The mother had been the primary carer of the children at all times in their lives which has ensued a meaningful relationship with the children. The orders proposed by the mother would see the continuation of this such that the meaningful relationship between the mother and children will continue as has always existed.

4. The father has not spent time with the children since being remanded in custody in 2017 and prior to this had infrequent and irregular contact with the children.

5. The orders sought by the mother would see a continuation of an arrangement in which the father does not spend any time with the children, but she proposes orders that the father be permitted to send letters and gifts to the children and allow the children to communicate with their father in accordance with their wishes. The mother’s proposal provides the children with the opportunity to determine the relationship they desire with their father while also sufficiently protecting them from harm, which given the risks posed by the father would be as meaningful as is in the children’s best interests.

Section 60CC(2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. This is a determinative consideration in the proceedings given the father’s historical perpetration of violence towards the mother, the children’s exposure to the father’s perpetration of violence and their involvement in conflict by the father.

3. The father’s drug use and mental health difficulties are of significant concern given the violent consequences that have flowed from such in the past.   

4. In relation to the father’s mental illness, the family consultant opined:

   Drug induced psychosis and schizophrenia are both psychotic disorders and are similar in that each can cause the sufferer to experience a disconnection from reality…  Experiencing symptoms of psychotic disorders can lead to confusion, for both the person experiencing symptoms and for those around them and to the sufferer to feel misunderstood.  Psychotic episodes, and the feeling that come with them, can impact a person’s ability to relate to family, friends and colleagues, and it may affect their ability to manage the requirements of running a household. People with psychosis often have hallucinations, that involve seeing or hearing things that seem very real, but others cannot sense.  Some people may have delusions of paranoia that can lead people to think they are being spied on, or that others are plotting against them…

   Exposure to a mental illness, including drug induced psychosis, where the person with the condition engages in violent behaviour is likely to have a detrimental impact on children and can be associated with a range of ongoing mental health difficulties, such as depression, anxiety or difficulty with social engagement. Children can also be adversely affected through ongoing contact with a person who has an untreated mental illness including neglect, the need to become a carer for that parent, isolation and feelings of guilt.

5. Aside from the father’s bare assertions to the family consultant that he is now managing his mental illness, there is no evidence before the Court that his mental health is well managed. Rather, the father’s criminal history of various violent offences often relating to his mental health issues would suggest the contrary. There has also been no evidence adduced in the form of drug tests or otherwise that the father no longer engages in drug use. In light of the family consultant’s evidence about the adverse consequences that may flow to the children from exposure to untreated mental illness, in the absence of any evidence otherwise, the Court cannot be satisfied that the children will not be exposed to an unacceptable risk of harm in the father’s care resulting from his mental health issues.

6. While the mother acknowledges that the father had not perpetrated physical abuse upon the children, the risk of harm to the children largely comes from exposure to family violence as they have been in the past.

7. Relevantly, the family consultant opined:

   If the children to establish a relationship with [the father] and there is ongoing conflict between the parents, this may be a concern in regards to difficulties in the future.  Children who experience ongoing conflict between their parents are at risk of poorer long-term outcomes in terms of their development and well-being.  However, children who are not able to establish a relationship with a parent can also experience emotional harm to the child and may result in them having long-term difficulties with their mental health and capacity to establish and maintain long-term peer and intimate relationships.

8. There is a long history of the father perpetrating physical violence towards the mother on occasions where the children have been present. Of concern, is the mother’s evidence of the psychological difficulties experienced by the children after the father had previously taken them into his care without the mother’s consent or knowledge. In particular, the mother describes how the oldest child has experienced anxiety and worry since the latest incident and has engaged with a school counsellor for additional support.

9. In these circumstances, the Court is easily satisfied that there is an unacceptable risk that the children may be exposed to family violence in the future and that a risk psychological harm may result. For these reasons, it is in the children’s best interests that an order be made that the children spend no time with the father.

10. In light of the family consultant’s evidence of the resultant harm that a child may experience if they are not able to establish a relationship with a parent, the Court is satisfied that it is appropriate to make an order that the father be permitted to send the children letters and gifts and the children be able to communicate with their father by telephone in accordance with their wishes. 

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   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);

   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;

   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;

   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;

   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;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   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;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   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;

   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; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The oldest child, who was 15 years old at the time of the interview, expressed to the family consultant the clear preference that she continue to live with the mother and not spend any time with the father. The oldest child was seemingly open to re-establishing telephone contact with the father if he was not taking drugs and managing his mental health appropriately. The family consultant expressed the view that the oldest child’s age enables determinative weight to be given to her views.  The family consultant also opined that a requirement that the oldest child spend time with the father or speak to him on the phone against her preferences is likely to negatively impact her well-being and her opportunity for establishing a relationship with the father in the future.  For this reason, the Court accepts the family consultant’s opinion that given the oldest child’s age and maturity she be allowed to guide the relationship between herself and the father in relation to her communication with the father.

4. The younger two children did not express any clear view about spending time with the father.

5. The family consultant opined that the children each appear to have well established and generally positive relationships with the mother. She has at all times been the primary carer for the children with very limited assistance from the father. The mother has also been primarily responsible for attending upon doctors, paediatricians, occupational therapists and speech therapists for the middle child since he was diagnosed with autism. The mother describes that the father sporadically would attend these appointments but became much less involved from 2012 onwards.

6. The children also enjoy a close relationship with the maternal grandparents with whom they live which they will continue to enjoy with orders made as sought by the mother.

7. The mother is completely financially responsible for the children in circumstances where the father provides no financial support for the children.

8. By taking or attempting to take the children into his care on various occasions, the father has caused the children significant distress which it seems has had adverse psychological consequences for the children. On the mother’s evidence, the middle child who suffers from autism was significantly affected by the disruptions to his routine caused by the father taking him into his care. The mother describes how the middle child was “set back with his progressions” after these incidents in that he regressed in his ability to get dressed by himself and toileting independently.  The father’s behaviour on these occasions has not been child focussed and demonstrates a concerning approach to the responsibilities of parenthood, and is an example of him prioritising his needs over what is best for the children.   

9. The father has also demonstrated an incapacity to provide for the children’s needs in failing to send the middle child to school for several weeks during a period where he had unilaterally taken him into his care in around June 2016. The father later failed to send the youngest child to school for over a week in August 2016 when he unilaterally took her into his care.

10. The children identify as Aboriginal and participate in NAIDOC activities through their school as a way of engaging with their heritage. The family consultant opined that the children’s enjoyment of this heritage could be enhanced by spending time with the father but only if this does not entail a risk of psychological trauma. The Court is satisfied that the children will be able to continue to participate in activities relating to their indigenous heritage to the same extent they have in the past in the care of the mother and given the findings of unacceptable risk this is in the children’s best interests.

11. Given the father’s non-compliance with directions and infrequent attendance before the Court, the orders sought by the mother would be least likely to lead to the institution of further proceedings.

12. The extensive family violence perpetrated by the father towards the mother and the children’s exposure to this violence has been detailed at length and is a weighty consideration in this matter. There is also a current ADVO in place prohibiting the father from approaching or contacting the mother and children in person by any means.

13. The middle child has been diagnosed with autism which means, the family consultant opined, that his routine would need to be consistent as “typically people diagnosed with autism require stricter adherence to structure and routine than neuro typical children”.  The mother is primarily responsible for managing the middle child’s high needs. This is another consideration which supports the making of orders as sought by the mother to ensure that the middle child has continuity to his routine which evidently would be in his best interests.

14. A consideration of the s 60CC factors having regard to the background of this matter supports the making of orders as sought by the mother as being in the best interests of the children. Such orders will allow the mother to provide for the children without fear of the father.

15. The mother also sought orders that would permit her to obtain travel documents for the children without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a travel document for a child absent the consent of the other parent. In circumstances where the mother has at all times been responsible for making decisions in relation to the children, it is proper for the mother to be able to obtain a travel document for the children without the consent of the father and to be able to travel as she wishes.

16. Otherwise, the mother sought injunctive orders for her and the children’s protection being that the father be restrained from contacting or approaching, or attempting to contact or approach, the mother and children. Given the history of family violence in this matter and the fact that there has been an ADVO providing this type of protection for the last two years which is due to expire in March 2020, the Court is satisfied that such orders are proper.

17. All the aforementioned considerations are indicative of orders being made in the best interests of the child as sought by the mother.

18. Orders will be made accordingly.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 February 2020.

Associate: 

Date:  28 February 2020