Bolton and Kilroy

FAMILY COURT OF AUSTRALIA

BOLTON & KILROY

[2018] FamCA 458

FAMILY LAW – CHILDREN – Final parenting orders – undefended hearing – where the father has not complied with trial directions – where the father has not attended an appointment for a psychological assessment – where the father did not attend the interview for the Family Report – leave granted for the mother to proceed with her application for final parenting orders on an undefended basis – where the child has allegedly made disclosures to the mother that the father has sexually abused her – where the father has denied allegations to the Department but has put no evidence before the Court in accordance with trial directions to refute the mother’s allegations – where the mother’s evidence is unchallenged – where the father has not actively participated in proceedings since January 2018 – where the Court is satisfied that the child is in need of protection from exposure to physical and psychological harm by the father – where it is not in the best interests of the child for there to be equal shared parental responsibility – order that the mother have sole parental responsibility for the child – orders that the child live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DA(4), 65DAA

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT:

Ms Bolton

RESPONDENT:

Mr Kilroy

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

FILE NUMBER:

MLC

7328

2013

DATE DELIVERED:

19 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

8 June 2018

REPRESENTATION

SOLICITOR APPEARING FOR THE APPLICANT:

Mr Horsfall

SOLICITOR FOR THE APPLICANT:

Bayside Solicitors

THE RESPONDENT:

No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dwyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

Orders

That all previous parenting orders in relation to X born … 2011 (“the child”) be discharged.
That the child live with the mother.
That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child.
That the appointment of the Independent Children’s Lawyer be discharged at the expiration of one month from the date of these orders.
That pursuant to Rule 19.50 of the Family Law Rules it was reasonable for the mother to engage a lawyer to attend as counsel in this matter.
That all extant parenting applications be otherwise dismissed.
Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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 Kilroy & Bolton 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 MELBOURNE

FILE NUMBER: MLC 7328 of 2013

Ms Bolton

Applicant

And

Mr Kilroy

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in relation to the child the child who is aged six years and six months.
The applicant in the proceedings is the mother, Ms Bolton. She seeks orders that the child live with her and that the question of the father’s time and communication with the child be reserved.
The father, Mr Kilroy, is the respondent in the proceedings. In his Amended Response to Initiating Application filed 17 August 2017 the father seeks orders that he have sole parental responsibility for the child and the child live with him. He further seeks orders that he be excused from particularising the final parenting orders sought until such time as the mother is psychiatrically assessed and there is the release of a Family Report.
The proceedings were originally commenced by the mother in May 2017 following disclosures alleged to have been made by the child in April 2017 that she had been sexually abused by the father. As a result of those allegations the proceedings were allocated to the Magellan List of cases.
In January 2018 orders were made fixing the matter for final hearing on 18 June 2018. In addition orders were made for the parties to file trial affidavits and for the preparation of a Family Report.
On 28 March 2018 further orders were made by me extending the time for compliance with those trial directions. The respondent father was ordered to file his trial documents by 9 April 2018.
Notwithstanding those trial directions, the father has filed no trial affidavit material and no Amended Response. Further, the father failed to attend appointments scheduled with Dr B, who was to prepare a psychological assessment of both parties, and the Family Consultant for the preparation of the Family Report.
As a consequence of the father’s non-compliance with the trial directions, on 17 May 2018 the mother filed an Application in a Case seeking that her application for final parenting orders proceed on an undefended basis. These are my Reasons for Judgment with respect to the mother’s applications.

Background

The mother is aged 50 years and lives in C Town. She is engaged in home duties.
The father is aged 47 years and lives at D Town. He is a tradesman.
The parties commenced cohabitation in 2000 and separated in June 2012.
There is one child of the relationship, the child who is aged six years and six months. The child attends E School and is in Year 1.
Final parenting orders were made by consent in the Federal Circuit Court of Australia at Melbourne on 1 October 2014. Those orders provide that the parties have equal shared parental responsibility for the care, welfare and development of the child, that she live with the mother and that she spend time and communicate with the father on a gradually increasing basis culminating in each alternate weekend from after school Friday to 5.00pm Sunday and each alternate Wednesday from after school until 6.30pm, as well as for specified periods during school holidays and on special days.
The father continued to spend time with the child in accordance with those orders until about December 2016 when he ceased spending time with the child on alternate Wednesday afternoons due to his work commitments. Thereafter the father continued spending time with the child on alternate weekends.
The child ceased spending time with the father altogether following disclosures allegedly made by her to the mother in April 2017. The mother’s evidence is that this was the second occasion on which the child had made disclosures that the father had behaved in a sexually inappropriate manner in her presence.
These proceedings were commenced by the mother upon her filing an Initiating Application and Notice of Risk in May 2017.
On 25 May 2017 Macmillan J made orders requesting a Magellan Report from the Department of Health and Human Services (“the Department”) and for the appointment of an Independent Children's Lawyer. The proceedings were otherwise adjourned to 28 June 2017.
At the adjourned hearing on 28 June 2017 there was no appearance by the father. Orders were made for substituted service of the mother’s application and supporting documents upon the father. Otherwise the proceedings were adjourned for directions in the Magellan List on 2 August 2017.
The father was represented by counsel at the adjourned hearing on 2 August 2017. That day the father was granted leave to file his Response to Initiating Application and supporting documents and orders were made for the preparation of an addendum to the Magellan Report. The proceedings were otherwise adjourned to 25 October 2017. The father filed an Amended Response to Initiating Application on 17 August 2017.
Trial directions were made by Senior Registrar Field on 24 January 2018. Those directions included orders listing the matter for final hearing before me to commence on 18 June 2018, requiring the mother to file trial affidavit material by 1 March 2018 and the father to file his responding material by 15 March 2018 and orders for the preparation of a Family Report to be commenced after 14 May 2018, but to be completed and released by 31 May 2018. Further orders were made extending times for compliance with the filing of trial affidavit material such that the mother was to file her material by 28 March 2018 and the father to file his responding material by 9 April 2018.

Should the mother have leave to proceed on an undefended basis?

The mother filed an Application in a Case on 17 May 2018 seeking orders for the matter to proceed on an undefended basis. That application was supported by her affidavit filed the same date. Although the application also sought orders that the Court make a finding that the father represents an unacceptable risk to the child pursuant to s 69ZR of the Family Law Act 1975 (Cth) (“the Act”), that part of her application was not pressed.
At the commencement of the hearing of that application the father was called in the Court precincts. He did not respond to the call.
The mother relies upon the Affidavit of Service of Ms F filed 4 June 2018 which confirms that the father was served with her Application in a Case and affidavit in support by pre-paid post to his postal address as well as by email to his email address. The addresses to which the documents were forwarded are identical to those noted in the Notice of Ceasing to Act filed by the father’s previous lawyers on 26 April 2018. Exhibit A4, being the covering letter forwarded to the father with the documents dated 18 May 2018, confirms that both the Application in a Case and Affidavit of the mother affirmed 8 May 2018 were forwarded to the father at his postal address. Having regard to the Affidavit of Service and Exhibit A4 I am satisfied that the father has had notice of the mother’s Application in a Case.
I am also satisfied that the father has had notice of the orders sought by the mother in her Amended Initiating Application filed 7 January 2018. That application was served upon the father through his previous solicitors by letter dated 17 January 2018 (Exhibit A3).
Having regard to the documents evidencing service, I am satisfied that the father has had notice of the orders sought by the mother on a final basis. Further, having been satisfied as to service upon the father of the mother’s Application in a Case I am satisfied that the father has had notice of the possibility of the mother’s application for final orders proceeding on an undefended basis.
The mother relies upon the father’s failure to comply with the trial directions in support of her application to proceed on an undefended basis. In particular she relies upon his failure to attend appointments with Dr B and the Family Consultant and his failure to file trial affidavit material.
Although the mother deposes at paragraph 8 of her affidavit filed 17 May 2018 that the father has not filed any material in the proceedings since August 2017, that evidence overlooks the Application in a Case and affidavit of the father both filed 22 January, 2018. That application of the father was listed on 24 January 2018 and sought orders that the mother be psychiatrically assessed or alternatively that the parties attend Dr B for psychological assessment, including a sexual risk assessment of the father.
Order 1 of the orders made by consent on 24 January 2018 (being the date upon which the father’s Application in a Case was listed) required the parties to attend upon Dr B, psychologist for the purpose of undertaking psychological assessment, including a psycho-sexual risk assessment of the father. Those orders provided that Victoria Legal Aid was requested to meet the cost of the mother’s assessment and that the father be responsible for the balance of Dr B’s costs. Pursuant to those orders, appointments were arranged for the parties to attend Dr B on 18 and 19 April 2018.
The mother deposes at paragraphs 3 to 5 of her affidavit filed 17 May 2018 of the arrangements made in order to comply with that order. The mother deposes that the appointments with Dr B were cancelled due to a notification by the father to Dr B’s rooms that he did not propose to attend the appointment or to meet the costs of the assessment in accordance with the Court orders. As a result of the father’s cancellation of the appointments, the assessment of the parties by Dr B did not proceed.
Pursuant to the orders of 28 March 2018, the father was to file an Amended Response and his affidavits of evidence-in-chief by 9 April 2018. The father has filed neither affidavit material nor an Amended Response in compliance with that order.
Order 16 of the orders dated 24 January 2018 required the parties and the child to attend upon a Family Consultant nominated by the Director for Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a Family Report, that report to be commenced after 14 May 2018 and to be completed and released by 31 May 2018. In accordance with that order, appointments were arranged for the parties to attend upon Family Consultant G on 15 May 2018. The father failed to attend his appointment with the Family Consultant.
At paragraph 2 of the Family Report dated 16 May 2018, Family Consultant G reports as follows with respect to the father’s participation in the report-writing process:-
The assessment in respect to the parenting dispute is incomplete due to [the father] failing to attend his scheduled interview on 15 May 2018. The writer is aware that there was correspondence between the Independent Children's Lawyer and [the father] on 14 May 2018 in which [the father] indicated he may not participate in the assessment. Upon checking whether [the father] had confirmed his intention to attend, the Senior Family Consultant attempted to telephone [the father] to clarify his intentions to attend the following day, to no avail, despite a message being left requesting [the father] return the call.
It was submitted on behalf of the mother that in circumstances where the father has repeatedly failed to comply with Court orders and to participate in the Court ordered assessments, including the assessment sought by him in the case of Dr B, that the mother should have leave to proceed with her application on an undefended basis. I accept that submission and am satisfied that in circumstances where the father has been afforded procedural fairness, it is appropriate that the mother have leave to proceed with her application for final parenting orders on an undefended basis.

Orders sought

The mother seeks orders in the terms of her Amended Initiating Application filed 17 January 2018, save that she does not seek an order in the terms of paragraph 5 of that application. The orders sought by her are as follows:-
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the child [X] born … 2011 (“the child”).
3.That the child live with the mother
4.That the father’s spend time and communication with the child be reserved.
…
6.That the Independent Children's Lawyer appointed in these proceedings be discharged within one month of the making of these orders.
7.That pursuant to Rule 19.50 of the Family Law Rules it was reasonable for each party to engage a lawyer to attend as counsel in this matter.
8.Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The Independent Children’s Lawyer (“the ICL”) does not oppose the orders sought by the mother. It is her position that in circumstances where the Family Report is incomplete and there has been no psychological assessment of the parties the ICL is not in a position to give either support or oppose the mother’s proposals.

Documents relied upon

The mother relies upon the following documents in support of her application for final orders:-
·Amended Initiating Application filed 17 January 2018;
·Trial affidavit of the mother filed 28 March 2018;
·Family Report dated 16 May 2018;
·Family Report dated 3 September 2014;
·Report from South Eastern CASA dated 18 January 2018 (Exhibit A1);
·DHHS Magellan Report dated 6 October 2017 (Exhibit A2).

Legal Principles

Section 60B(1) of 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).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out below I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility. As a result of that finding, the Court is not required to consider whether the child spending equal time or substantial and significant time with each parent would be in her best interests and reasonably practicable (s 65DAA of the Act).
Findings are made on the balance of probabilities having regard to the evidence. 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(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 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 the benefit to a child of having 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 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.
(Original emphasis)
At the time of the parties’ separation the child was aged approximately six months. The mother was primarily responsible for the child’s care following separation. Since the alleged disclosures made in April 2017 the child has spent no time with her father. As a result, it is submitted and I accept that the child has a meaningful relationship with the mother due to the mother’s role in providing for all of the child’s day-to-day physical, intellectual and emotional needs.
Until April 2017 the child spent frequent and regular time with the father. At the time of the preparation of the first Family Report by Ms H on 3 September 2014 (“the first Family Report”), when the child was aged approximately 2 years and 8 months, the child was observed to be a child who was thriving across all aspects of her functioning and development and had a strong sense of both the mother and the father and appeared to view both parents as being able to meet her needs.[1] The observations of the child with the father in that report were described as being “entirely positive and were indicative of a relationship that would support a graduated move towards more substantive spend-time arrangements”.[2] It was against that backdrop that the final orders dated 1 October 2014 were made. Those orders were made by consent.
[1] Family Report dated 3 September 2014, paragraph 32
[2] Ibid, paragraph 38
As noted earlier, the father spent time with the child largely in accordance with those orders until April 2017. It is the mother’s position that the orders for the father to spend time with the child should be discharged and the question of him spending time with the child otherwise reserved. In circumstances where it is alleged that the child has been exposed to sexually inappropriate behaviour by the father, the mother submits that the need to protect the child from such conduct outweighs the desirability of her maintaining a meaningful relationship with the father.
The father’s failure to participate in the proceedings since trial directions were made in January 2018 constrains the Court’s ability to frame orders to ensure that the child has the opportunity of a meaningful relationship with him.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

These proceedings commenced upon the mother’s Initiating Application filed in May 2017. Therefore the provisions of s 60CC(2A) of the Act apply and in considering the matters in s 60CC(2) of the Act, the Court is required to give greater weight to the factors set out in s 60CC(2)(b) of the Act.
The mother submits that the child is in need of protection from physical and psychological harm when in her father’s care. At paragraph 72 of her trial affidavit filed 28 March 2018 (“trial affidavit”) the mother deposes that the father is regularly affected by drugs, is often intoxicated and barely able to walk and communicate. She deposes that the child is aware of the father’s drug usage, that she has seen “Daddy’s waterpipe” and that she has heard the father and his partner smoking their pipe through the bedroom door.
At paragraph 73 of the trial affidavit, the mother deposes that in October 2015 the child disclosed that she had seen “Daddy’s willy” and that it “had a smiley face and made [her] laugh”. the child informed her mother that she had seen her father’s penis when she was in bed with her father. Whilst the mother had concerns regarding the child’s disclosure she did not immediately report the matter to the police. The mother deposes that she ultimately determined to report the matter to police in May 2016. However that investigation did not proceed due to the death of her own mother which necessitated her return to Europe to attend to her mother’s funeral arrangements.
At paragraph 84 of her trial affidavit the mother deposes that a second disclosure was made to her by the child on 30 April 2017. At paragraph 85 of her trial affidavit the mother deposes that at approximately 8.00pm that day the child told her that “[She] saw Daddy’s willy again”. The mother reported the disclosures to police the following day. Subsequently the child was referred for interview with SOCIT and the Department.
As a consequence of the child’s disclosures, the mother applied for and obtained an Interim Intervention Order in the Suburb J Magistrates’ Court on 10 May 2017. That day the presiding Magistrate made orders suspending the operation of the parenting orders for a period of 21 days.
At paragraph 97 of her trial affidavit the mother alleges that further disclosures were made to her by the child on 17 May 2017. The mother deposes that the child disclosed that the father inserts his tongue in her mouth when kissing her, that her father “pees and poos” in her mouth and that his “willy threw up in [her] mouth too and it was disgusting”.
The Magellan Report dated 6 October 2017 (Exhibit A-2) confirms that a notification was received by the Department on 22 May 2017. At page 3 of the Report it is noted that the Department was initially unable to contact the father and engage him in the assessment process. The father finally agreed to an office visit with the Department which occurred on 11 August 2017. It is also noted on page 3 of the Report that the child made disclosures to the Department regarding having been exposed to sexual abuse. It is reported that the child made very descriptive comments regarding her exposure to inappropriate sexual behaviour by the father and it was reported that she was capable of describing what she had seen and what it looked like. The report notes as follows:-
…The child-like descriptions made by [the child] could be paralleled to witnessing [the father] undertake sexual acts such as masturbation in her presence. Due to the descriptions and disclosure provided by the child it is only reasonable to assume she may have been exposed to inappropriate sexualised acts by [the father]. The disclosure by [the child] remains consistent with earlier allegations made in May 2017, in the presence of [the mother], which was also audio recorded…
At page 4 of the Report it was noted that the child has been exposed to unprofessional enquiries and leading questions by her informal support networks.
During his interview with the Department on 11 August 2017 the father is reported at page 4 of the Magellan Report to have denied all allegations. It was his position that the child has been coached and he believes that all allegations are vindictive in nature.
The Magellan Report notes that the child was being counselled by SECASA and that that agency had reported that the child was continuing to make disclosures. As a result, the Department concluded at page 4 of its Report that any contact between the father and the child be suspended until the child had completed her assessment with SECASA. Further, the Department recommended that there be a psychiatric assessment of the father.
The mother places reliance upon the report of SECASA dated 18 January 2018 (Exhibit A-1) in support of her submission as to the need for the child to be protected from harm by her father. At page 6 of that report, the child is noted to have made a series of disclosures of sexually inappropriate behaviour by the father, including that:-
·She has been tickled on the “privates” by the father;
·The father spitting in her mouth;
·That her father “jiggled his willy” and that “all the threw up [sic] went on me”.
The evidence of the mother is unchallenged, as are the reports of the Department and SECASA. That evidence raises significant concern that the child has been exposed to sexually inappropriate behaviour at the hands of the father. Whilst the Department notes the father’s denial of the mother’s allegations, he has placed no evidence before the Court in accordance with the trial directions to refute the allegations contained in the mother’s trial affidavit.
Having regard to the unchallenged evidence in the mother’s trial affidavit coupled with the reports of the Department and SECASA as to the child’s disclosures, in circumstances where the father has elected not to participate in the proceedings, I am satisfied that the child is in need of protection from exposure to physical and psychological harm by the father.
I must now consider the additional considerations pursuant to s 60CC(3) of the Act.
(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
There is no evidence before the Court as to any views expressed by the child.
(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)
The mother has been the child’s primary care-giver since the parties’ separation in 2012 when she was aged approximately six months. It is submitted that the mother is devoted to the child’s care and that they enjoy a close and loving relationship. The mother deposes that the child is thriving at school and enjoying a range of extra-curricular activities including swimming and karate. She also deposes that the child has many friends, regularly has play-dates and receives invitations to birthday parties and other social events with her classmates.
The child has not been observed with the father for the purposes of these proceedings. As noted earlier, observations of the child with her parents for the purposes of the first Family Report indicate that at that time the child enjoyed strong and supportive relationships with both parents.
At paragraph 11 of her trial affidavit the mother deposes that she supported the child’s relationship with the father including ensuring that the child’s birthday celebrations were events at which both parents participated.
As discussed, the child has spent no time with her father since April 2017.
(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
Until the time of the child’s second disclosure in April 2017 the father was spending regular time with the child. The orders for the father to spend time with the child were suspended following the disclosure.
Whilst the father has denied the allegations of sexually inappropriate behaviour and sexual abuse, he has failed to actively participate in these proceedings since January 2018. As a result of his failure to engage in the Court process, the father has compromised his ability to have an on-going role in the child’s life. In the face of the very serious allegations raised by the mother, the father has failed to file trial affidavit material and further, in circumstances where there have been clear recommendations for the father to be psychiatrically assessed, and the father has sought orders for such assessment, he has then failed to attend appointments with Dr B to enable a psychological assessment to occur.
In contrast, the mother’s unchallenged evidence supports the view that she has continued to be actively engaged in all aspects of the child’s life to ensure that her physical, educational and emotional needs are met.
As to the child’s financial support the mother deposes at paragraph 129 of her trial affidavit that the father’s child support payments have been sporadic and inconsistent. At the time of swearing her trial affidavit the arrears of child support payable by the father totalled $1,549.
Otherwise, the mother is solely responsible for the child’s financial support. She deposes at paragraph 133 of her trial affidavit that she has met all of the supplementary fees associated with the child’s school attendance, school uniform costs and the like without contribution from the father. I accept that unchallenged evidence.
(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 arrangements which have been in place since April 2017. I am satisfied that such arrangements are appropriate and in the child’s best interests in circumstances where the father has elected not to participate in these proceedings.
(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
Currently the child is spending no time with the father. That circumstance 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 any 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 been the sole carer of the child since April 2017. The mother deposes in her trial affidavit that the child is thriving at school and in her extra-curricular activities and that she is engaged with her friends and community. I accept that unchallenged evidence.
Having regard to the mother’s evidence, I am satisfied that she has demonstrated a strong commitment to her role as the child’s primary care-giver. There is no challenge to the mother’s capacity to continue to meet all of the child’s physical, 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
To the extent that these matters are relevant they are referred to earlier in this judgment.
(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;
This consideration is not relevant to the matter.
(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
As noted earlier in this judgment the mother has obtained intervention orders against the father following the second disclosure by the child.

(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

This is the second set of proceedings regarding the child’s care, welfare and development. Proceedings were initially commenced in 2013 and culminated in final parenting orders in October 2014. These current proceedings have been instituted as a result of the disclosures to which I have referred earlier in this judgment. At age six, the child has been the subject of Court proceedings for approximately four years.
In my view, in circumstances where the father has disengaged from the Court process it is appropriate and in the child’s best interests that final orders be made to provide the child with certainty and stability in future parenting arrangements.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.

Conclusion

The mother seeks orders that she have sole parental responsibility for the child. The ICL does not oppose the orders sought by the mother.
In his Amended Response to Initiating Application the father also seeks orders that he have sole parental responsibility for the child. The father’s application must inevitably fail in circumstances where he has not participated in the proceedings, has failed to attend appointments for psychological assessment and for the preparation of a Family Report and has filed no trial affidavit material.
The father’s failure to comply with trial directions results in a circumstance where the mother’s evidence is unchallenged.
Given the father has spent no time with the child since April 2017 and the mother has been solely responsible for all aspects of her day-to-day care, welfare and development since that time, I am satisfied that pursuant to s 61DA(4) of the Act the presumption in favour of equal shared parental responsibility is rebutted. In my view it would be contrary to the child’s best interests were there to be any sharing of those responsibilities.
The child’s reality is that her mother has effectively been exercising sole parental responsibility for her care, welfare and development since April 2017. The father has effectively abandoned his applications before the Court in which he seeks orders to have sole parental responsibility for the child and that she live with him. In those circumstances, I am satisfied that it is appropriate and in the child’s best interests that the mother have an order for sole parental responsibility. This will enable to the mother to continue to make all decisions necessary to ensure the child’s long-term care, welfare and development.

The mother seeks orders that the child live with her. Again this is an order which is not opposed by the ICL. The evidence before me satisfies me that all of the child’s needs are being met by the mother. That evidence confirms that the child is thriving in the mother’s care. The mother’s living arrangements are unique insofar as she resides at a marina and lives on a boat with the child. That living arrangement was considered by the family consultant in the context of the preparation of the first Family Report. The father consented to final orders at that time confirming that the child would continue to live with the mother in that environment. In her trial affidavit the mother deposes as to the living arrangements with the child. She deposes as to the child enjoying friendships within the marina community and having play-dates with her friends at her home. Having regard to that evidence, I am satisfied that the mother’s living arrangements are appropriate. Further, I am satisfied that it is appropriate and in the child’s best interests that she continue to live with the mother.
The mother seeks an order that the father’s ability to spend-time and communicate with the child be reserved. The evidence of the family consultant in the first Family Report indicates that at that time the child enjoyed a loving and supportive relationship with the father. That relationship has ceased in the aftermath of the alleged disclosures. The father has had no time with the child since April 2017, and since January 2018 has ceased his engagement in Court processes that might otherwise have enabled him to resume his relationship with the child. In those circumstances, I am satisfied that there is little utility in attempting to craft orders to enable the child to spend time with the father. In the circumstances I am satisfied that it is appropriate that there be no orders for the father to spend time with the child.
The mother also seeks orders that the appointment of the ICL be discharged within one month of the final orders being made. In circumstances where these proceedings will conclude upon the making of orders, I am satisfied that an order in those terms is appropriate.
In his Amended Response the father sought injunctions restraining the mother from abusing, insulting, belittling, rebuking or otherwise denigrating the father and from discussing these proceedings in the presence or hearing of the child. In circumstances where he does not attend Court to pursue that application I am not satisfied that it is appropriate that there be orders in those terms. There is no evidence before me that indicates that such orders are necessary.
The father also seeks orders that the parties do all such acts and things as may be required to enrol the child in K School or L School. Again, there is no evidence before the Court which would support an order in those terms.
Finally, the father seeks orders that he be permitted to apply for an Australian passport for the child and that he be permitted to travel overseas with the child. Again, in circumstances where the father puts no evidence before the Court as to the facts or matters which would justify the making of such orders and where he does not appear at Court, I am not satisfied as to the necessity for orders in those terms.
Having regard to the above matters I make orders as follows:-
(1)That all previous parenting orders in relation to X born … 2011 (“the child”) be discharged.
(2)That the child live with the mother.
(3)That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child.
(4)That the appointment of the Independent Children’s Lawyer be discharged at the expiration of one month from the date of these orders.
(5)That pursuant to Rule 19.50 of the Family Law Rules it was reasonable for the mother to engage a lawyer to attend as counsel in this matter.
(6)That all extant parenting applications be otherwise dismissed.
(7)Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 June 2018

Associate:

Date: 19 June 2018

[2018] FamCA 458

19 June 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies