Brand and Reyner

[2020] FamCA 185

FAMILY COURT OF AUSTRALIA

BRAND & REYNER [2020] FamCA 185

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental Responsibility – Where the father withdrew his application – Where the father has perpetrated family violence – Where the father has a significant criminal history including offences perpetrated towards the mother – Orders made as sought by the mother that the child live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61C, 61DA, 65DAC

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Brand

RESPONDENT: Mr Reyner

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: PAC 2617 of 2017

DATE DELIVERED: 25 March 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 14 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

SOLICITOR FOR THE RESPONDENT: McNamara & Associates

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

Orders

1. The mother is to have sole parental responsibility for the child X born … 2015 (“the child”).

2. The child is to live with the mother.

3. The father is not to spend any time with the child.

4. Pursuant to section 68B of the Family Law Act 1975 (Cth) the father shall be and is restrained from:

   (a)       contacting or approaching or attempting to contact or approach the mother and the child; and

   (b)entering or remaining at the child’s home or school. 

5. Order (4) is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

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 Brand & Reyner 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 2617 of 2017

Ms Brand

Applicant

And

Mr Reyner

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for a young boy now aged five.

2. The parties’ short relationship was characterised by significant family violence perpetrated by the father towards the mother including while she was pregnant. The father has been incarcerated for various violent offences including for offences perpetrated against the mother.

3. Following separation in late 2015 the child who was an infant remained living with the mother and did not spend any time with the father. This arrangement continued throughout the course of proceedings as interim orders were made that the child live with the mother and that she have sole parental responsibility for him with no orders being made for time between the child and father.

4. The mother in her Initiating Application filed 1 June 2017 seeks orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father. She also seeks an injunction restraining the father from approaching or contacting her or the child for the protection of herself and the child.

5. The father filed an Amended Response on 11 October 2019. On 14 October 2019 when the proceedings were listed for case management, I was informed through his legal representatives that the father wished to discontinue his application by withdrawing his Response. As the father did not seek any orders and did not otherwise seek to participate in the hearing the hearing proceeded on an undefended basis.

6. The Independent Children’s Lawyer (“ICL”) supports the making of orders in terms sought by the mother.

Background

1. The mother who is 32 and the father who is 30 commenced a relationship in about March 2014. By the time the relationship began, the father had already accumulated a lengthy criminal history including offences committed as a young person.

2. According to the police records, the father has a long history of violent and aggressive behaviour, including towards family members such as the paternal grandparents from the time when the father was a young adolescent. This offending continued until the father became an adult and included some very serious matters such as maliciously inflicting actual bodily harm.

3. The mother was also convicted of a serious offence in September 2012 after engaging in a fight with another woman in a club for which she ultimately received a good behaviour bond.

4. According to police records the father’s pattern of offending continued into adulthood.

5. The mother deposes to a number of violent incidents perpetrated by the father against her throughout the relationship, including while she was pregnant. Several of these incidents are documented in police records.

6. The mother deposes that the father was violent towards her for the first time in around July 2014 while she was driving with him to the paternal grandparents’ home. The mother describes that the father “backhanded” her while she was driving after she refused to ask his parents for money and lie about its intended purpose to enable him to buy alcohol.

7. The parties began living together in around August 2014 along with the child’s half-brother being the mother’s child from an earlier relationship. From around this time the mother started to harbour concerns about the father’s violent behaviour and observed him drink between half a carton to a carton of beer almost every night.

8. On 25 August 2014 the father was sentenced to a good behaviour bond with conditions requiring him to undertake courses for drug and alcohol management after he broke into a bottle shop.

9. It is apparent from court records that the father did not respond well to supervision by Community Corrections and lacked interest in the seriousness of failing to comply with that order resulting in him being brought back before the Court for breaching his bond. At the same time his Corrections Officer observed that difficulties with the father’s mental health continued as he generally failed to follow through with appointments and comply with treatment.

10. In September 2014 the mother who was pregnant was viciously assaulted by the father. He kicked and punched her in the stomach while screaming words to the effect of “I hope the baby dies! I should never have let you get pregnant! Look at you, you’re a fat whale!” He then pushed the mother out of bed held her down by her hair and punched her in the head. The mother called an ambulance and remained in hospital until it was clear that the baby’s heartbeat was stable and that the baby was still moving. Hospital staff made a mandatory report to the police and although the mother did not wish for the father to be charged, an Apprehended Domestic Violence Order (“ADVO”) was made against him for her protection.

11. Following this incident the police removed the father from the parties’ home and he returned to live with his parents. The parties remained in a relationship and saw one another on weekends.

12. In around October 2014 the mother discovered that the father used social media profiles in false names to make misogynistic and inflammatory comments to others. The mother also observed the father to use social media accounts in false names to engage in explicit/sexual conversations with others and elicit nude photographs from women, which he would then share with others. When the mother spoke to him about her concerns, he slapped her across the face with the back of his hand, punched the back of her head, pushed her and grabbed her around the throat.

13. The mother ended the relationship for the first time in November 2014.

14. In December 2014 the father sent the mother a photo of an object which looked like something dead in a bucket. When she asked the father about the object, he said “If you aren’t with me anymore, there’s no need to have your pet around anymore is there?” Upon closer inspection the mother realised the photo depicted her dead pet. The father later told her that he had cut the pet’s head off.

15. On 26 February 2015 police were called to the paternal grandparents’ home and both the paternal grandparents told the police that they were scared of the father and did not want him to remain on the premises. It is recorded that while both the paternal grandparents were reluctant to tell the police of the father’s behaviour, they asked police to remove him from the home. The police witnessed the father threaten the paternal grandfather with a clenched fist and he then threatened one of the police officers with a raised clenched fist. The father also threatened both officers with violence, threw a chair at them and was subdued by police with capsicum spray. The father was charged in relation to his conduct and on conviction spent six months in gaol.

16. On 5 March 2015 an ADVO was made for the protection the mother and the child’s half-brother against the father. The order was subsequently extended until March 2018.

17. The mother gave birth to the child in 2015.

18. In around August 2015 the mother took the child with her to visit the father in gaol. The father told the mother that he had been doing a domestic violence course and anger management program. He expressed a desire to resume the relationship with the mother and claimed to have changed as a result of rehabilitation programs.

19. Following the father’s release from gaol on parole in October 2015, the parties resumed their relationship and the father moved into the mother’s home.

20. After the father moved back to live with the mother he was uninvolved with the care of the children, began drinking alcohol every day and the mother suspected he was using methamphetamines (ice). Around this time, the mother again became pregnant with the father’s child.

21. On 11 November 2015 the parties became involved in an argument about the dog being inside the house. The mother tried to take the dog from the father to put it outside when the father hit her. He then dropped the dog, grabbed the mother by her hair, and hit her to the back of the head several times in the presence of both children. The mother deposes that the child’s half-brother was crying and said “please stop hurting mummy”.

22. A few days later, the mother met with a caseworker from B Group to develop a safety plan to assist her to leave the relationship safely.

23. On 22 November 2015 the parties engaged in an argument as the father could not find his phone and accused the mother and the child’s half-brother of stealing it. The father threw a remote control at the mother causing her to drop the pet dog that was in her arms and then pulled the mother to the ground by her hair and hit her twice to the head. When the mother threatened to call the police, the father grabbed her by the throat and held her against the wall yelling at her in the presence of the child’s half-brother. After being released by the father, the mother hid in a room with the children for several hours. Upon hearing the father leave the house, the mother locked the father out of the house and told him through the door that he could no longer live with her and the children. The parties separated on a final basis following this incident.

24. In December 2015 the father was charged with a range of offences relating to his conduct on both occasions in November. He was refused bail and remained in custody. He was subsequently sentenced to various terms of imprisonment with the net effect that he was to be released on parole at the end of March 2017.

25. In January 2016 the mother miscarried the baby she was carrying and was advised by a doctor that this had most likely occurred as a result of the physical abuse perpetrated by the father.

26. Later that month the mother deposes that she was asked to give evidence against the father for stabbing a 17 year old boy in the throat with a glass bottle as the father had made admissions to her about the incident via text message. Ultimately, the father pleaded guilty to this assault and she was not required to give evidence. The police records indicate that the father received a further sentence of imprisonment in relation to this offence.

27. Records produced from Department of Corrective Services indicate that while in custody the father threatened another inmate with assault if the inmate did not perform sexual favours, was involved in stand overs to obtain personal goods and assaulted a staff member at the prison hospital. It is also documented that he was involved in stand-overs to obtain personal goods and “buy ups” while he was in custody.

28. In or around March 2017 a staff member from B Group approached the mother in relation to allegations made by the father to the Department previously known as Family and Community Services (“the Department”). The father alleged that the mother was addicted to drugs, had used needles in the presence of the children and had given alcohol to the child. The mother admits to taking a photo of the child holding an empty can of an alcohol which she agrees was “in poor taste” but denies giving that child alcohol or ever using illicit drugs.

29. The proceedings were commenced by the mother in the Federal Circuit Court in June 2017. She sought orders that the child live with her, that she have sole parental responsibility for the child, that the father spend no time with the child and that an injunction be made restraining the father from approaching or contacting she or the child.

30. In July 2017 orders were made on an interim basis that the child live with the mother and that she have sole parental responsibility for him.

31. In October 2017 the mother also applied to have the child’s half-brother added to the current ADVO and for the order to be extended for a further two years. Subsequently, the ADVO was amended to provide protection for this child and was extended for a further two years.

32. In November 2017 the proceedings were transferred to this Court due to their complexity and an ICL was appointed.

33. In November 2017 the mother relocated from where she was then living due to concerns about her safety given that the father was soon to be released.

34. The father participated in the proceedings following his release for some time.

35. In March 2018 orders were made with the consent of the parties that the parties submit to urinalysis, chain of custody and carbohydrate-deficient transferrin (“CDT”) testing upon the request of the ICL. Orders were also made at that time for the parties’ participation in the Child Responsive Program.

36. So far as the mother is concerned, urinalysis and CDT tests carried out in April 2018 showed a negative result for all drugs and a low reading of 0.08 percent in relation to alcohol[1].

    [1] CDT levels become more elevated in most individuals consuming at least 60 grams of alcohol on more than 14 consecutive days. Results between 1.4 percent and 1.6 percent are considered equivocal.

37. A drug test undertaken by the father in April 2018 revealed a negative result and the CDT also produced a low reading.

38. Neither party complied with requests for subsequent tests.

39. On 22 August 2018 following an interim hearing before a Senior Registrar orders were made providing that the parties undertake the intake assessment at a Contact Centre but no orders were made as to time.

40. On 11 January 2019 an ADVO previously made on 24 March 2016 for the protection of the mother and child from the father was extended to remain in place until 10 January 2020. The ADVO restrained the father from going within 100 metres of the mother or child’s home or place of work.

41. On 7 May 2019 the parties were ordered to attend upon a family consultant for the preparation of a Family Report. The parties participated in assessment interviews with a family consultant in July and August 2019 and a report subsequently was released.

42. On 14 October 2019 the matter proceeded undefended as the legal representatives for the father informed the Court that he wished to discontinue his application. At that court event orders were made on an interim basis as sought by the mother that she have sole parental responsibility for the child, that the child live with her and spend no time with the father. An order was also made pending further order restraining the father from contacting or approaching the mother and child and from entering or remaining in the residence of the child or the child’s school. Judgment was reserved as to the final orders.

43. The final Apprehended Violence Order (“AVO”) protecting the mother and her children from the father expired in January 2020.

Family Report

1. The contents of the Family Report are a matter to which I will return in detail when considering the best interests of the children.  At this stage some of the salient matters are set out to give context of the concerns of the family consultant about the risk of harm to the child posed by the father.

2. The child was not assessed individually or observed with the father, the paternal aunt or the paternal grandparents by the family consultant due to his health issues and due to there being no established relationship between the child and these individuals.

3. The maternal grandparents told the family consultant that they would not be willing to supervise the father’s time with the child, as they would be concerned for the child’s safety as well as their own based on the father’s previous acts of violence towards his own family and police.

4. The mother reported that the child has generalised epilepsy for which he takes medication. The mother told the family consultant that she had been told by the child’s paediatric neurologist that there was some trauma to the child’s brain while he was in utero, and this may have occurred when the father allegedly kicked her in the stomach when she was 30 weeks pregnant. This caused the mother to believe that the father’s violence was likely to be the cause of the child’s epilepsy.

5. The mother also reported that the child has been diagnosed with global developmental delay and is estimated to be up to 24 months behind other children his age in his development.

6. The mother told the family consultant that she believed the father hates her so much, combined with him being unpredictable and volatile, that he may physically harm the child to obtain revenge on her, adding that he in the past has hurt his own pets.

7. The family consultant opined:

   [The child] appeared to share established relationships with members of his maternal family, and he appeared familiar and comfortable with [the mother], his maternal grandparents, and with [the child’s half-brother]. [The mother] appeared skilled at engaging [the child] in a child focussed manner, and she was also able to provide [the child] appropriate boundaries for behaviour that she considered unacceptable. It was also notable that [the mother] was able to identify when she felt and appeared anxious, and she prioritised the children’s needs by taking time to reduce her anxiety before they saw her.

   From [the mother’s] account of [the child’s] additional needs, no concerns were raised about her knowledge or ability to facilitate his attendance at the appropriate professionals as required. The only concern that has been raised about her ability to do so was that she removed [the child] from one hospital to attend another hospital. It may be a matter for the Court’s determination as to whether she acted irresponsibly, or if in the circumstances around the incident justified her actions and were reasonable at the time.

8. The family consultant also opined:

   The other concern raised about [the mother] was that she had exposed [the child] and [the child’s half-brother] to family violence and/or drug use in her relationships…

   If [the mother] has done so, it is possible that she involved herself with partners who were violent due vulnerabilities associated with poor self-esteem, or that she was unable to recognise violent or abusive behaviours in partners, or she was conditioned to accept such behaviour from partners. From [the mother’s] interview, she did not appear to currently be dismissive or minimising of family violence and its impact on the children. It may be a matter for the Court whether or not this is a current or future risk issue.

1. The family consultant opined that if the information relating to the father’s ongoing criminal history was accurate, concerns are held about the father’s ability and capacity to take responsibility for his own actions and then to make change.

2. The family consultant further opined:

   All of the above information indicates that [the father] may have a long standing, and potentially ongoing, issue with being able to refrain from anti-social behaviour. He may also have long standing issues with emotional regulation, and he may lack empathy and have a general disregard for other people’s physical and/or emotional safety.

3. The family consultant recommended that in the absence of any evidence to the contrary, she recommended that orders be made that the mother hold sole parental responsibility for the child, the child live with her and spend no time with the father.

4. Both parties made allegations to the family consultant regarding the other’s substance misuse, particularly the use of “ice” (methamphetamine) and marijuana. The family consultant opined:

   Should [the mother] have any issues with drug use or alcohol misuse, this may impact on her parenting of [the child] as [the child] may experience her as frightening, unpredictable and confusing. She may also not be as responsive to [the child’s] needs as she could be, and the likelihood of him being exposed to abuse and/or neglect in her care would increase. [The child] is a child with additional health and developmental needs, of which need to be responded to immediately. Should [the mother] be affected by drugs or alcohol, it is likely to impact on her ability to respond to [the child’s] needs in a quick and efficient manner.

5. The family consultant who conducted the interviews and prepared the report in these proceedings has extensive experience as a psychologist, in child protection and as a family consultant in the Family Court system. In light of her experience and expertise, and given that her evidence is unchallenged in these proceedings, I accept her evidence and attach significant weight to her opinions and findings.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that 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.

3. The principles underlying these objects 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).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[2] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[3] and has also agreed with the reasoning of Bennett J in G & C[4]. 

   [2] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [3] (2007) Fam LR 518

   [4] [2006] FamCA 994

2. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   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”.

3. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

4. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

5. The orders proposed by the mother and supported by the ICL provide that she have sole parental responsibility for the child and that the child live with her. She also seeks a specific order that the child spend no time with the father. Accordingly, if orders were made in these terms there would be no provision to foster a relationship between the child and the father.

6. Neither the mother nor the ICL contends specifically that the child will not receive a positive benefit from having a relationship with the father. However, the child who is now five years old has not seen the father since he was eight months old and has no relationship with him. The father must be taken through the withdrawal of his application to spend time with the child to accept that the child will not receive any benefit from having a relationship with him.

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

1. The second of the primary considerations looms large in these proceedings given the serious allegations of physical and psychological harm perpetrated by the father towards the mother. The mother contends that the risk of harm the father poses to the child far outweighs any benefits that the child may receive from spending time with him.

2. In relation to the mother’s allegations of family violence against the father, the family consultant opined that such was consistent with coercive and controlling type violence:

   Family Violence of this type is characterised by a pattern of control and dominance by a primary perpetrator that results in fear, intimidation and submission through the use of threats, emotional abuse, restriction of contacts, and/ or actual harm. Within a coercive- controlling dynamic, incidents of physical harm do not need to be frequent or severe in nature to maintain an abusive dynamic, as the fear generated in the victim in sufficient.

   Exposure to coercive and controlling family violence is known to have a detrimental impact on children, including on their physical safety and psychological wellbeing. For [the child], this may have directly impacted upon his brain development and subsequent functioning, particularly if he was exposed to family violence in utero, and/or as an infant, and this may have been a contributing factor to his developmental delay. Furthermore, family violence of this type can be associated with parenting deficits including coercive discipline methods which can escalate to physical abuse, and a limited capacity to identify and meet a child’s needs.

   In the absence of the perpetrating parent assuming responsibility for the violence, presenting as motivated to change and engaging with a specific therapeutic change program, it is likely that the coercive and controlling dynamic will continue post-separation, and this is likely to undermine the other parent’s ability to make appropriate decisions for their children and will continue to expose the victim and the children to ongoing coercive and controlling family violence.

3. The family consultant formed the view:

   Should the Court find that [the father] has continued to harass or threaten [the mother], despite already being charged and convicted for violent offences against her, and despite an order preventing him harassing her being in place, then serious concerns would be held that this dynamic will continue in the long term and that [the father] may continue to pose a risk to [the mother’s] safety.

   If [the mother’s] account is accurate, then despite [the mother’s] claims that [the father] acknowledges his actions, and [the father’s] claims that he takes responsibility for his actions, he did not present as genuinely taking responsibility and appeared to minimise the family violence and attribute responsibility for it to the victim.

4. The mother contends that she does not believe the father would be able to change his behaviour as he has a long criminal history and there is no information to suggest he has taken any responsibility for his behaviour, or done anything to change it. On this basis, she contends there is a significant risk of exposure to family violence in the future.

5. The family consultant also relevantly opined:

   In addition, if [the father] has continued to harass [the mother], it is likely that he will continue to do so if he maintains his disregard for orders that do not align with his views. Even if there are no orders protecting [the mother] from [the father], if [the father] is not able to genuinely take responsibility for his actions and demonstrate change, it is probable that a coercive and controlling dynamic will continue, and this might include further physical violence...

6. Having regard to the father’s extensive criminal history with many offences involving violence particularly those offences perpetrated towards the mother, I am satisfied that the father has committed significant family violence towards the mother. In addition to the father’s extensive criminal history for violent offences, I attach weight to the uncontested evidence which records the father’s history of non-compliance with conditions of supervision in the community as well as his continued violent and threatening conduct during his periods of incarceration.

7. I am also satisfied that because the child’s half-brother and the child (albeit he was only a few months old at the time) were exposed to family violence during the parties’ relationship, there is a real risk that the child would be exposed to further family violence if orders were made facilitating a relationship between the child and father.

8. Attaching weight to the family consultant’s views as to the consequences of exposure to family violence on children as outlined above, I am of the view that the consequences of exposure to family violence were that to continue would be significant.

9. There were also concerns raised in relation to both parties’ alleged substance misuse. The mother vehemently denies ever having had problems with substance misuse and specifically addresses her reasons for non-compliance with particular requests made by the ICL for further testing.

10. The parties produced negative results from their urinalysis and low results for their CDT testing on each occasion. While it is noted that both parties did not comply with some of the requests made by the ICL for testing to occur, the evidence before the Court does not raise any concern as to risks flowing from the parties’ drug use. In the absence of any other evidence that the mother has an ongoing issues with substance misuse other than the bare assertions made by the father to the family consultant regarding this, I cannot be satisfied that the mother poses a risk to the child flowing from such misuse.

11. It was also raised as a concern with the family consultant that the mother has exposed the child to family violence in her relationships and that this is a risk in the mother’s care. The family consultant was of the view that the mother does not appear to be dismissive or minimising of family violence. I am of the view that the mother’s engagement in programs to support victims of domestic violence and her obtaining of psychological assistance for the child’s half-brother following his exposure to family violence demonstrates her understanding of family violence and the potential consequences future exposure to family violence may have on the children.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. The child is only five years old and as such he is too young for his views to be afforded any significant weight. His views were not traversed with the Family Consultant in any meaningful way.

Nature of the child’s relationship with each parent and other significant persons  

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The mother has been solely responsible for the care of the child since his birth without assistance from the father. During the assessment interviews the family consultant observed the child to run to the mother enthusiastically at the start of the observation and that the mother engaged with the child in a “child focussed manner”.

2. The child also has a close relationship with his half-brother who is also part of the mother’s household. The mother describes the children as having “a typical sibling relationship” and are “inseparable playmates and best friends”.

3. The father has at no time been involved in the care of the child and the child has not seen the father since he was about eight months old. The father has also at no stage provided any financial support for the child.

4. The father’s total withdrawal from the proceedings is a salient feature in this dispute. By withdrawing from the proceedings completely and not seeking orders to spend even some limited time with the child or in relation to parental responsibility, the father can be taken to have forfeited his interest in participating in the child’s lives in all respects.

Likely effect of change in the child’s circumstances

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. The child has high needs having been diagnosed with epilepsy and global developmental delay which affects his speech, social skills and fine motor skills. The mother has at all times been aware of and attentive to the child’s special needs including facilitating the child’s attendance for occupational therapy.

2. The mother described to the family consultant how the child is reliant on structure and routine due to his developmental issues and was concerned about the father’s ability to be consistent and predictable. The mother also raised concern about unnecessarily exposing the child to unpredictability and instability as she feared this may negatively affect his development particularly if the father was not able to commit to spending regular time with the child.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Following separation the mother sought psychological assistance for the child’s half-brother as she was concerned about the impact exposure to family violence would have on his development. She also sought out psychological assistance for herself and began attending group programs focussed on supporting victims of domestic violence. She has also participated in a domestic violence course to ensure that she does not re-enter a relationship characterised by family violence in the future and has completed a Triple P Parenting Course and a Triple P Parenting After Separation Course.

2. The mother’s engagement in treatment and support following the breakdown of the relationship demonstrates her protective and proactive approach to the responsibilities of parenthood.

3. The father has in my view completely abandoned his responsibilities as a parent throughout the entirety of the child’s life.

Aboriginal or Torres Strait Islander background and the child’s right to enjoy their culture

1. The mother asserts that the child has Aboriginal heritage of the S tribe on the side of his paternal family. The mother has engaged the child in an Aboriginal dance group, a playgroup and teaches him about his Aboriginal heritage. She told the family consultant that she believes it is important that the child understand and learn about his culture and intends to arrange for the child to meet some of the elders in the S tribe when he is older.

2. The father told the family consultant that he did not know anything about his culture or the name of his tribe. The paternal grandmother told the family consultant that she is of the T tribe and that members of her extended family are currently trying to learn more information about their heritage.

3. The family consultant opined that while it is positive that the mother has undertaken to educate herself and the child about his Aboriginal heritage, it is also important that she be teaching him, or accessing information, about the Aboriginal community of which he is a part. The family consultant suggested that the mother may be assisted by seeking information from T elders and taking advice about how she may assist the child to be able to enjoy his culture, especially if he does not have access to Aboriginal family members.

4. The mother’s recount of the father’s derogatory and offensive behaviour towards Aboriginal Australians as well as the paternal family’s general lack of knowledge about their heritage would indicate the child will not suffer any significant detriment to his right to enjoy indigenous culture if orders were made that he not spend any time with the father or paternal family.

5. It would seem that the child would gain a richer understanding of his indigeneity generally in the care of the mother. Given that the mother and paternal grandmother are at odds as to the community to which the child belongs, and there is no evidence to support either assertion or the cultural practices of either asserted community, I cannot make any conclusions as to the child’s opportunity to enjoy his culture in a particular parent’s care. However, the mother seems more attuned to recognise that it is to the benefit of the child to gain a knowledge and appreciation of his background which will be to the benefit of the child.

Family violence relating to the child or a member of the child’s family

1. Family violence is broadly defined. The mother has provided detailed accounts of violence perpetrated towards her by the father which easily falls within this definition. Given that the father has served time in gaol for assaults perpetrated against the mother, it is clear that family violence is a significant factor in these proceedings which heavily weighs in favour of the orders sought by the mother.

2. Some of the incidents deposed to by the mother occurred in the presence of the child. While it is unclear whether the child was old enough to comprehend the extent of what he was being exposed to, the mere fact that he was present at the time satisfies a finding that he has been exposed to family violence.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. Having regard to the father’s withdrawal of his application in the proceedings, orders that would be least likely to lead to the institution of further proceedings would be those sought by the mother.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.

3. In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [5] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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 for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). I have more than reasonable grounds to believe that the father has engaged in family violence so the presumption does not apply.

5. The mother is the only parent engaged in the proceedings and she seeks sole parental responsibility. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.

6. In relation to parental responsibility, the family consultant relevantly opined:

   If [the mother], [the child] and [the child’s half-brother] have experienced family violence as claimed by [the mother], then it is likely to be extremely difficult for her to maintain an ongoing relationship with [the father] for the purpose of co-parenting. It may be damaging to her mental health, as she may need to remain constantly hyper vigilant for threatening behaviour from him. This is then likely to put her in chronic state of stress and distress, and this will in turn negatively affect her parenting.

   …In this circumstance, it would be recommended that [the mother] hold sole parental responsibility for [the child].

7. As the father has completely disengaged from the proceedings, it would not be proper for any orders to be made for him to be involved in the exercise of parental responsibility.

8. Having regard to the potential risks posed by the father as discussed, the fact that he has played no real role in the child’s life and the complete absence of any current relationship between he and the child, I am of the view that it is proper and in the child’s best interests to make an order that the child spend no time with him and the balance of the orders sought by the mother.

9. Given the gravity and multiplicity of the risks posed by the father, I am also satisfied that the restraints proposed against the father are appropriate for the welfare and protection of the child.

10. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 March 2020.

Associate: 

Date:  25 March 2020