Brock & Brock & Ors

[2018] FamCA 999

FAMILY COURT OF AUSTRALIA

BROCK & BROCK AND ORS [2018] FamCA 999

FAMILY LAW – CHILDREN – Parenting – Where the proceedings relate to the children aged 14 and 15 and with whom they are to live and spend time with – Where the elder child lives with the maternal grandparents and the younger child lives with the father – Where the children spend no time with the each other or the mother - Where the mother sought that the children live with her, but did not participate in the final hearing – Where the maternal grandparents and father entered into consent orders for the current living arrangements to be maintained – Where orders are made to facilitate the younger child discussing with a therapist whether he wishes to participate in parentage testing – Where orders are made to facilitate the issuing of a birth certificate for the younger child and where leave is granted for the parties to apply for the father’s name to be registered on that certificate on 21 days’ notice.

Family Law Act 1975 (Cth)
Births, Deaths and Marriages Registration Act 1995 (NSW)

APPLICANT: Ms Brock

RESPONDENT: Mr Brock

2^nd RESPONDENT: Ms Aldergate

3^rd RESPONDENT: Mr Aldergate

INDEPENDENT CHILDREN’S LAWYER: Mr Clack

FILE NUMBER: SYC 7376 of 2016

DATE DELIVERED: 22 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by or on behalf of the Applicant Mother

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Commins Hendriks

COUNSEL FOR THE 2^ND & 3^RD RESPONDENTS: Ms Eldershaw 

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS: Cater & Blumer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Orders are made in the terms of paragraphs 1 – 22, 24 (excluding line 24.1), and 25 – 27 of Exhibit 10.

2. Orders and a notation are made in the terms of Exhibit 11.

3. I find that C was born on … 2004.

4. I find that C’s mother is Ms Brock born … 1985.

5. Leave granted to the parties on 21 days’ notice to all the other parties and Independent Children’s Lawyer to file an Application in a Case for a declaration as to whether Mr Brock is C’s father and an order pursuant to s 19 of the Births, Deaths & Marriages Registration Act 1995 (NSW), and any other consequential order together with an affidavit or affidavits setting out the evidence on which that application is based.

6. The matter is otherwise removed from the active pending cases list.

Exhibit 10

1. All previous parenting orders be discharged.

2. That the Father shall have sole parental responsibility all decisions about issues of a major long-term nature for C born … 2004 (“C”).

3. That the Maternal Grandparents shall have equal shared parental responsibility all decisions about issues of a major long-term nature for B born … 2003 (“B”) to the exclusion of any other person.

4. The Father shall inform the Maternal Grandparents in writing of any major long-term decision he has made for C and all reasonable particulars of the same.

5. The Maternal Grandparents shall inform the Father in writing of any major long-term decision they have made for B and all reasonable particulars of the same.

6. That C shall live with the Father.

7. That B shall live with the Maternal Grandparents. 

8. C shall spend time with the Maternal Grandparents at all reasonable times requested by C.

9. B spend time with the Father at all reasonable times as requested by B.

10. The Father and the Maternal Grandparents shall do all things necessary to facilitate any reasonable request made by C and B to spend time together.

11. For the purpose of implementing Orders 8 to 10:

    (a)the time B and C spend together shall occur in the care of the Maternal Grandparents.

    (b)except where changeover occurs at school or as agreed between the Father and Maternal Grandparents in writing, changeover shall occur at the front entrance to the IGA supermarket in D Town.

12. That the children spend time and communicate with the Mother in accordance with their wishes. 

13. In the event that B expresses a desire to spend time with or communicate with her Mother, the Maternal Grandparents will liaise with B’s General Practitioner for the purpose of obtaining an appropriate referral for B to a counsellor who can assist B in the re-establishment of her relationship with her Mother AND FURTHER, pursuant to s 121 of the Family Law Act, the Maternal Grandparents have leave to provide a copy of the Family Report prepared in these proceedings dated 12 September 2018 to that counsellor.

14. The Father and the Maternal Grandparents are to ensure that the other is kept informed as soon as is reasonably practicable of:

    (a)Any serious medical problems or illnesses suffered by B or C, including the details of any hospital or medical centre to which that child has been taken in the case of an emergency;

    (b)Any medication that has been prescribed for B or C that needs to be taken during the time she is in the care of the other parent;

    (c)Any changes to their residential address and other contact details;

    (d)Any other matter relevant to the care, welfare and development of B and C.

15. By this order, each party is permitted to liaise directly with B’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about her progress, irrespective of the named carer or contact person on any school enrolment form.

16. By this order, each party is permitted to liaise directly with C’s school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about his progress, irrespective of the named carer or contact person on any school enrolment form.

17. By this order, each party is permitted to receive copies of school reports, newsletters, photograph order forms relating to B and C.

18. By this order, the Maternal Grandparents are permitted to liaise directly with C’s general practitioner and school counsellor to obtain all relevant information concerning his health and welfare including his mental health to the extent the practitioner can comply with this order having regard to his or her professional obligations including patient confidentiality having regard to C’s age.

19. By this order, the Father is permitted to liaise directly with B’s General Practitioner and school counsellor to obtain all relevant information concerning her health and welfare including her mental health so the practitioner can comply with this order having regard to his or her professional obligations including patient confidentiality having regard to B’s age.

20. In the event that C’s General Practitioner or school counsellor recommends that C undertake any counselling or other intervention for his mental health, each party will do all acts and things to facilitate such counselling or intervention in accordance with the recommendation.

21. Each party shall be restrained from:

    (a)criticising or denigrating the other parent or member of that party’s household in the presence or hearing of B or C.

    (b)discussing these proceedings with B or C or with any other person while in the presence or hearing of B or C, other than to inform them of the arrangements by which he or she is to live with and spend time with a party.  

    (c)causing or permitting B or C to have any contact with the Mr E.

22. Nothing in these Orders prevents the Maternal Grandparents from facilitating B and C spending time with her new half-sibling born to the Mother in 2018 in accordance with B’s and C’s wishes.

23. Deliberately omitted (declaration of C’s parentage)

24. Pursuant to s 19 of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar of the NSW Registry of Births, Deaths and Marriages is ordered to register C’s birth and is to include the mother’s maternity of C, and is to issue a Birth Certificate. (the part of this order seeking the father be registered on the birth certificate deliberately omitted)

25. The Father shall do all things necessary to facilitate compliance with Order 23 as an incident of his sole parental responsibility for C.

26. In the event the mother is required to do anything to implement the registration of C’s birth, she shall do so within 14 days of the request failing which the Registrar of the Family Court of Australia at Sydney or Canberra be appointed pursuant to s 106A of the Family Law Act to execute the document on behalf of her and do all acts and things necessary to give force and effect to the relevant order.

27. That pursuant to s 121 of the Family Law Act, the ICL has leave to provide a copy of the Family Report dated 12 September 2018 Dr J, paediatrician.

Exhibit 11

1. Within 7 days, the ICL shall contact Dr J to request that the doctor discuss C’s paternity with C, noting paragraphs 123 and 133 of the Family Report.

2. That within a further 7 days, the ICL shall contact C to let him know that, should he wish to, he can participate in parentage testing and that there is an opportunity for C to discuss this with Dr J.

3. The Court notes that C is due to see Dr J in January 2019 for a regular review.

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 Brock & Brock and Ors 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 SYDNEY

FILE NUMBER: SYC 7376 of 2016

Ms Brock

Applicant

And

Mr Brock

Respondent

And

Ms Aldergate

2^nd Respondent

And

Mr Aldergate

3^rd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings in relation to B, born in 2003 (aged 15 years and 10 months) and C, born in 2004 (aged 14 years and 5 months).

2. The parties to the proceedings are the children’s mother, Ms Brock, the children’s father Mr Brock (noting that the mother has raised an issue as to whether or not Mr Brock is C’s biological father) and the maternal grandparents.

3. Currently, all family members live in D Town, New South Wales.

4. B lives with the maternal grandparents and they have sole parental responsibility for her at the moment.

5. C lives with his father and they live with the paternal grandparents and the father has sole parental responsibility for C at the moment.

6. The mother lives with Mr E. They have recently had a child together. The mother and Mr E live in an adjacent property to the maternal grandparents in a rural area with their houses being approximately 300 metres apart. There is no communication or contact between the mother and Mr E on the one hand and the maternal grandparent’s household, including B, on the other hand.

7. This matter has had a number of procedural events before me, the first of which was in August 2017.

8. Ms P has prepared a family report in September 2018.

9. The mother has not attended court today. The mother participated in the last court event on 20 September 2018. She was unrepresented. On that day there was a discussion, given that the mother was shortly to have a child, as to whether or not it was appropriate to list the final hearing of the matter to commence today, 22 November 2018. She indicated at that event that she did not wish the matter to be further delayed and she wanted the matter listed for final hearing today.

10. Previously, directions had been made for the mother to file material and no material has been filed by her pursuant to those directions. The matter has been called three times today outside the court and the mother does not appear. Exhibit 8 is a letter written by the Independent Children's Lawyer to, inter alia, the mother reminding her of the trial directions of 17 May 2018 and the additional directions of 20 September 2018. The lawyers for the maternal grandmother sent a letter dated 19 November 2018 (Exhibit 9) to an email address that is set out in the mother’s Notice of Address for Service. That document reminded the mother that the matter remained listed for final hearing commencing today. None of the parties have had any contact or communication from the mother in relation to her intentions to participate in the final hearing. I infer that she has decided not to participate.

11. The father, the maternal grandparents and the Independent Children's Lawyer have each filed a case outline and set out in those documents the documents upon which they seek to rely. I have read those documents. I also have had the assistance of the family consultant’s report dated 12 September 2018.

12. The parties here today and the Independent Children's Lawyer have reached an agreement in relation to a set of parenting orders they wish me to make. That agreement is contained in Exhibit 10. There is one aspect of Exhibit 10 which relates to a declaration as to C’s parentage and his birth certificate in which the mother may not have noticed. I shall refer to this later. The parties have agreed to orders in the terms of Exhibit 11 which relates to these issues.

13. B and C do not have interaction with one another, notwithstanding the fact that they go to the same school.

14. There is a “chronic conflict” between the three households in this case. Currently, none of the households communicate with one another.

15. The children have not lived with their mother for over three years.

16. The mother and father commenced to cohabit in 2002 and married in 2006. They separated in 2010 and the mother re-partnered with Mr E in 2012.

17. After the separation, the children remained primarily in their mother’s care and spent little or no time with their father. The maternal grandparents were heavily involved at that time. On 11 October 2011, a final AVO was made against the father for the mother’s protection for a period of 12 months.

18. In August 2015, the children came into the care of the maternal grandparents and in January 2016, the mother, with the assistance of police, removed the children from them. The police took the children to the father with whom they then lived.  C has remained in his father’s care since that time.

19. On 9 July 2016, the mother attempted suicide.

20. On 11 July 2016, it is alleged by the mother and Mr E that the maternal grandfather assaulted Mr E and on 9 August 2016, a final AVO was made against the maternal grandfather protecting Mr E for a period of three months.

21. In August 2016, B returned to live with the maternal grandparents.

22. On 12 August 2016, the maternal grandfather alleges that the father assaulted him.

23. From February to March 2017, B lived with her mother before returning to the maternal grandparents.

24. In March 2017, an interim AVO was made against the mother and Mr E to protect B. There is some dispute about whether a final AVO was subsequently made.

25. In August 2017, B spent a couple of days living with her mother.

26. On 18 August 2017, interim orders were made that B live with the maternal grandparents and that they have sole parental responsibility for her and that C live with his father and he have sole parental responsibility for him. The orders also stipulated that B and C spend each alternate weekend and half the school holidays together but that order has not been complied with and currently the children spend no time together.

27. In matters of this nature, I am required to make parenting orders which are appropriate. Section 60CA of the Family Law Act 1975 Cth (“the Act”) provides that when deciding whether to make a particular parenting order the court must have regard to the children’s best interests as its paramount consideration and s 60CC of the Act sets out those matters which the court must consider when determining what is in the child’s best interest.

28. Because there may be an outstanding issue as to whether or not the father is C’s biological father, I will generally discuss the considerations under s 60CC of the Act without necessarily referring to any particular subsection. Section 60CC(3)(m) of the Act provides that I can take any other fact or circumstance that the court thinks is relevant into account and that subsection applies to considerations that would otherwise be referrable to other subsections of s 60CC(2) and (3) of the Act if there was no dispute about the father being C’s biological father.

29. It is axiomatic that it would be in the interests of the children to have a meaningful relationship with all of the adults in this case, however, very serious concerns have been raised about the mother’s conduct which has led the children to express views that I will refer to shortly. It is apparent that B has a very good relationship with the maternal grandparents. C and his father also share a very good relationship.

30. The family consultant has provided information in relation to the views of the children.

31. B indicated to the family consultant that she struggles with academic work and does not enjoy it. She enjoys seeing her friends at school but she also experiences difficulties with other girls at school.

32. She wants to continue living with her maternal grandparents. She said she would like to have contact with her mother but she would like someone else with her and does not want to see the mother’s partner. She suggested her boyfriend could be with her when she sees her mother as she feels safe when she is with him. She said that she does not want to spend time with her father. She would like to see C but she does not want to see her father in order to be able to see C.

33. B said it was good living with her maternal grandparents. She described them as loving, caring and a bit overprotective. She said at school C ignores her as if she were a stranger. She said that she has previously tried to talk to him but he told her to “fuck off”.

34. B said she tried to maintain a relationship with her father but that she stopped trying when the father did not allow C to spend time with her at the maternal grandparents’ home.

35. In relation to C, he told the family consultant that he is doing alright at school and considers himself to be one of the smarter ones.

36. C indicated that he would like the current court proceedings finalised and he did not want to be required to do anything that he did not want to do. C adamantly and repeatedly stated that he wants to continue living with his father and paternal grandparents and that he does not want to spend time with his mother, maternal grandparents or B. When advised that his mother would like him and B to live with her he stated “she can shove that up her arse” and “there is no way that is going to happen”.

37. C described his father as a “top bloke” and said he is caring, reasonable and understanding. C said he does not associate with B at school because she “hangs out with the smokers”.

38. C said he does not want to see his mother. He seems to perceive that his mother causes trouble and behaves erratically and aggressively, describing her as a “psychopath” and going “off tap”.

39. C said that he “declined” to spend time with the maternal grandparents (whom he referred to as “the Aldergates”) as was ordered by the court.

40. The family consultant was not able to observe C with his sister or the maternal grandparents because he declined to participate. B indicated she would feel uncomfortable to see her father and the family consultant did not push it. The family consultant opined that caution needed to be taken when placing weight upon the children’s expressed views in circumstances where they were in the middle of a conflict that existed between the adults which the family consultant described as insidious and toxic. The adult members dislike each other; they do not trust each other and allegedly use manipulative techniques to try and prevent the children from having relationships with other adult family members. This conflict has been going on for at least eight years and according to the family consultant, has had a significant impact on the children’s development.

1. I agree with the family consultant’s assessment that there would seem to be an element of futility in making any orders for B and C that are not in line with their preferred arrangements. They have already demonstrated that they are not prepared to participate in complying with orders they do not like. Neither child seeks a relationship with their mother at the moment.

2. B has engaged with appropriate support such as counsellor Ms N and it has recently been said that she is making improvements although there are still significant concerns in relation to her behaviour including compliance with schooling.

3. Since 2015, the mother has had almost no role with the children save for her questionable decision in taking B to Queensland and exposing her to erratic and damaging behaviours.

4. There is no evidence that the father has not provided appropriate financial support from time to time.

5. C appears settled. B is still struggling emotionally and psychologically but I find it is clearly in her best interests to make an order confirming her current living arrangements.

6. B has given some indication that she may want to make contact with her mother at some point in the future. The parties reside in the same district and as mentioned, the mother now resides next door to the maternal grandparents. The orders that the parties here today seek that I make will provide opportunities, should the children wish to take them, to make contact with other persons with whom they currently do not have contact. I am satisfied the father has the capacity to meet C’s needs. I am satisfied similarly that the maternal grandparents have the capacity to meet B’s needs. They have kept her in school and have been liaising with staff and taking her to therapy.

7. At this stage, I have considerable reservations about the mother’s ability to care for either of these two children.

8. Family violence has been a pressing issue and a recurring theme in the history of these proceedings. As indicated, several ADVOs have been made over the years, most recently looking to protect B from her mother. I take some comfort in the fact that at least in recent times there has been no significant incident between the father’s and maternal grandparents’ households.

9. Finally, I agree with the sentiment that C has expressed that it would be best for all if these proceedings could be over.

10. Taking into account all the evidence to which I have been referred, I find that the orders that have been mutually proposed by the parties in the court room today are in the best interests of each of the children save, as I have foreshadowed, orders relating to C’s parentage and recording the father’s name on C’s birth certificate. I now turn to those issues.

11. At the commencement of the proceedings before me today, the parties sought that I make a declaration that Mr Brock was the father of C and an order pursuant to s 19 of the Births, Deaths & Marriages Registration Act 1995 (NSW) (“the State Act”), to order the Registrar to register C’s birth, to include the father’s paternity and the mother’s maternity and to issue a birth certificate. Section 19(2) of the State Act, is to the effect that if any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order the registration of the birth for inclusion of registerable information about the birth or the parents in the register.

12. I have no difficulty finding that the mother, born in 1985, is C’s mother and that his date of birth is 2004.

13. There is an issue, however, in relation to C’s paternity. Initially, counsel for the father sought to rely on s 69Q of the Act which is a presumption of paternity arising from a cohabitation. Whilst I might draw an inference, the evidence which I have been taken to falls short of me being able at this point to make an explicit finding that the mother and father cohabited in the window of time between 44 weeks and 20 weeks prior to C’s birth.

14. This issue of paternity was raised during procedural events as far back as 18 August 2017 where I initially ordered a report by Dr M. I requested her to express an opinion as to whether or not I should consider making a parentage testing order in circumstances where the mother had raised an issue as to whether or not the father is C’s biological father and the father has given evidence about that issue at [25] and following of his affidavit filed 25 November 2016. I noted then that none of the three parties, nor the Independent Children's Lawyer, are seeking an order for parentage testing at this time and I approached the matter on the basis that C’s parentage at that time was unchallenged by the parties and the Independent Children's Lawyer.

15. Dr M could not do the report and on 17 May 2018, I ordered that a family consultant prepare a report pursuant to s 62G of the Act and I made a similar request of the family consultant relating to the issue of C’s parentage.

16. The evidence I have in relation to this issue is primarily contained in [25] of the father’s affidavit of 25 November 2016. In that paragraph, the father describes a disturbing scene when he says he first heard the allegation being made by the mother that he may not be the father. That scene took place in front of C.

17. The family consultant in her report of 12 September 2018 at [123] says:

    [C] was not asked anything about the issue of whether or not [the father] is his biological father. It seems apparent from both parents and the maternal grandparents that [C] has been consciously aware of his mother’s claim. [C’s] views about wanting to live with his father are resolute and he is rejecting of his mother at the moment. Irrespective of whether or not [the father] is [C’s] biological father, he is [C’s] psychological father. There may be some benefit to [C] having this issue resolved and knowing who his biological father is, but that will be solely dependent on [the mother] providing that information, if [the father] is not [C’s] biological father. Given the complexity of [C’s] family circumstances and the lack of proposal for parentage testing by any of the adults, it seems that [C] should be given the opportunity to pursue parentage testing if and when he wants to do it. It is not something that should be forced upon him at this time. [C] may need to be given information about this issue and about his options, but the decision will need to be his.

18. The family consultant then at [133] makes the following recommendation:

    It is recommended that [C] be given the opportunity to attend upon a mental health professional who can advise him that his mother claims that his father is not his biological father and that his father believes that he is his biological father and that, if and when he chooses to do so, he can participate in parentage testing ([the father] would obviously have to consent to this testing also). It is recommended that the Independent Children’s Lawyer ensure that [C] be given this opportunity by organising such an appointment and informing C of the appointment. It is acknowledged that [C] may choose not to attend such an appointment and, if this is the case, then the Independent Children’s Lawyer should provide [C] with enough information that [C] is able to consider his options in the future.

19. As of today, there has been no implementation of the recommendation made by the family consultant but there is now a proposed order to implement it (Exhibit 11). I find it is in C’s best interests to make an order in those terms.

20. The other difficulty that arises is that the mother has been given no notice of the orders that were sought by consent today in relation to making the declaration of parentage and the order against the Registrar of Births, Deaths & Marriages. The consent order proposes that I remedy a problem that I am told exists, namely, that C currently does not have a birth certificate. Although the mother has not been given notice of the orders being sought, the orders simply facilitate C obtaining a birth certificate with his name, his birth date and the mother’s name registered as his mother. I am comfortably satisfied the mother could not reasonably complain about me making that order even though she does not have notice of that order being made and I am prepared to make that part of the order on an ex parte basis.

21. In relation to the remaining part of the application in relation to C’s birth certificate, namely a recording on the birth certificate of the name of C’s father, I will grant the parties liberty to relist the matter if they wish to pursue an order for a declaration of parentage in respect of the father and an order to direct the Registrar to amend the birth certificate under s 19 of the State Act and any consequential orders. The mother will of course need to be given notice about any such application.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 22 November 2018.

Associate: 

Date:  27.11.18