Buchanan and Marlow

[2016] FamCA 736

FAMILY COURT OF AUSTRALIA

BUCHANAN & MARLOW [2016] FamCA 736

FAMILY LAW – CHILDREN – Undefended hearing – Where father put on notice that the mother would seek final orders in his absence – Where no appearance by father – Where appropriate to proceed on an undefended basis – Where father has been diagnosed with paraphilia and other mental health issues – Where those issues to the mother’s knowledge remain untreated – Where significant concerns regarding the safety of the children in the father’s care – Where mother seeks sole parental responsibility for the children and the father to be restrained from communicating with or approaching the children – Where appropriate to make orders as sought by the mother.

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

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Buchanan

RESPONDENT: Mr Marlow

FILE NUMBER: PAC 1643 of 2016

DATE DELIVERED: 2 September 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McPhee Kelshaw

Orders

1. The Applicant Mother Jeness Bohan have sole parental responsibility for the children A born … 2009 and B born … 2011 (“the children”).

2. The children live with the Mother.

3. The children A born … 2009 and B born … 2011 are permitted to have an Australian travel document and to travel internationally.

4. The Mother Ms Buchanan may apply for an Australian travel document (passport) for the said children A born … 2009 and B born … 2011 without first obtaining the consent of the Father Mr Marlow.

5. The Father be restrained from:

   (a)       Communicating with the children by telephone, social media or any other means;

   (b)       Approaching within 500 metres of the children’s home or school; and

   (c)       Approaching within 500 metres of the children.

6. The Father is granted liberty to apply in relation to the orders made today.

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 Buchanan & Marlow 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 1643  of 2016

Ms Buchanan

Applicant

And

Mr Marlow

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings commenced by the applicant mother by application filed on 22 June 2016.

2. The application concerns the children A born in 2009 and B born in 2011.

Context

1. The applicant mother is aged 37. The respondent father aged 36.

2. The parties were married in late 2006 and commenced cohabitation on that day.

3. The parties separated on 19 April 2012 and a divorce order was pronounced on 3 November 2013. Property proceedings were resolved between the parties with final orders made on 27 November 2012.

4. There was a previous application filed by the parties on 14 April 2016 seeking final parenting orders by consent. For reasons that will become apparent the registrar refused to make the final parenting orders by consent and the application for consent orders was referred for judicial case management.

5. The proceedings were listed before the Court on 17 May 2016 on which date the father’s solicitor filed a Notice of Address for Service on his behalf. The proceedings were adjourned for further case management to Wednesday, 22 June 2016.

6. In the intervening period the solicitor for the father filed a Notice of Ceasing to Act on 10 June 2016. On 22 June 2016 the mother was granted leave to withdraw the application for consent orders and that application was dismissed.

Procedural fairness

1. Subsequently the mother filed her present application as noted above on 22 June 2016. On 24 June 2016 the father filed a Notice of Address for Service for the purposes of the proceedings identifying his address for service as G Street, Suburb C, New South Wales and identifying an email address also for the purposes of service.

2. The mother’s initiating application and her affidavit in support of the orders sought by her filed on 22 June 2016 were forwarded to the respondent father by ordinary prepaid post on 27 June 2016 to the street address and also on the same day forwarded to the father’s email address.

3. The mother’s solicitor has received no notification of the correspondence being returned or the email communication not having been received by the father.

4. The mother’s application was listed before a registrar on 26 July 2016. There was no appearance by or on behalf of the respondent father. The registrar listed proceedings before the Court for judicial case management on 15 August 2016 noting that the mother would be seeking to proceed on an undefended basis on that day.

5. On 5 August 2016 the mother’s solicitor wrote to the father by ordinary prepaid post and also on that day by email to the father’s nominated email address informing the father that in the event that there was no attendance by him on 15 August 2016 the mother would seek to proceed on an undefended basis in relation to the parenting orders sought by her. The solicitor received no response from the father, nor was there any appearance by the father on 15 August 2016.

6. On 15 August 2016 the Court was satisfied that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis.

7. Orders were made on 15 August 2016 with reasons reserved. These are those reasons.

The mother’s documents

1. The mother relied upon the following documents:

   a)Her affidavit filed on 22 June 2016;

   b)Her Notice of Risk filed on 22 June 2016;

   c)Her updating affidavit filed on 8 August 2016;

   d)The affidavit of her solicitor Ms Schrale filed on 8 August 2016 as to notification to the father of the proceedings; and

   e)The father’s Notice of Address for Service filed on 24 June 2016.

The evidence

1. The father and the children were previously known by the surname “Jones”. The children’s surnames were changed with the consent of the father in 2013.

2. The children presently live with the mother and spend no time nor do they communicate with the father.

3. During the parties’ cohabitation they argued frequently over the father viewing pornography. As a consequence the mother is now aware that the father commenced to view pornography in circumstances where it would not come to the attention of the mother.

4. The father worked as a health professional during the parties’ cohabitation.

5. The mother became aware that subsequent to separation the father was in a sexual relationship with a 19-year-old patient of his. The father induced his young patient to engage in various sexual acts with him for his sexual gratification including sexual acts with animals.

The Health Care Complaints Commission

1. Subsequently the father’s sexual misconduct and professional misconduct were referred by his former patient to the Health Care Complaints Commission. The father’s employment was terminated by his employer and the Commission undertook a detailed investigation. The father surrendered his registration as a health professional on 7 November 2012.

2. The Commission’s findings were published in early 2015. The determination of the Commission is exhibited to the mother’s affidavit in full. The decision of the Commission in summary resulted in the father being disqualified from being a registered health professional for a period of 10 years from February 2015.

3. The Commission’s report includes references to background psychiatric assessment undertaken. The father provided to the Commission two psychiatric reports, a report by Dr W dated 11 April 2013 and a report from Dr L dated 11 June 2013. These reports were provided by the father in response to the Commission’s investigation.

4. Dr W provided a diagnosis of paraphilia (characterised by periods of fetishism (non-living objects), zoophilia (animals), obsessive compulsive preoccupation with pornographic material and adjustment disorder with depressed and anxious mood pertinent to the predicament in which he finds himself as a result of his behaviour.

5. Dr W concluded that the father was clearly not fit to continue as a health professional “at this time”.

6. The conclusions of Dr L were not dissimilar to those of Dr W. In oral evidence before the Commission Dr L confirmed his opinion that given the compulsive nature and longevity of the father’s behaviour he would expect a condition of the father would be very hard to remit without treatment. In his opinions severe paraphilia deviance would not go away by itself and was quite debilitating in a psychological sense. He further expressed the view that irrespective of the fact that the father is no longer practising as a health professional the risk of him taking advantage of vulnerable people exists.

7. The mother understands that the father has sought no further treatment from any psychologist or psychiatrist since June 2013. Such a circumstance causes her grave concern should the father come into contact with the children.

8. Regrettably after the determination of the Commission a report of the father’s sexual misconduct was published in the media. It was as a consequence of the father’s notoriety that agreement was reached to facilitate a change of the children’s surnames.

Post-separation

1. After separation the mother facilitated some supervised time between the children and the father for a period of about four years until April 2016. Her family also assisted with the supervision.

2. However the mother became aware of sexualised behaviour being exhibited by both children during 2013 and 2014. The child B is now suspected of suffering from autism spectrum disorder. The mother has significant and ongoing difficulties in coping with the child’s behaviour.

3. The mother persisted with providing limited supervised time for the children to spend with the father until April 2016. At this time the mother informed the father that she would no longer facilitate supervised time; the father responded with an abusive email. The mother was aware of the father’s proposals to travel overseas for an extended period in May 2016 and she reluctantly agreed to the father having some supervised time with the children on 30 April 2016.

4. The father travelled overseas in early May 2016 and the mother facilitated a few occasions of electronic communication that month between the father and the children.

5. The mother now says that as a consequence of the Court’s reluctance to make orders as proposed in the application for consent orders she has reflected upon her position and is now aware that the children are at some risk should they continue a relationship with the father.

6. The application for consent orders provided in summary for orders that the mother have sole parental responsibility for the children, including overseas travel and that the children spend time with the father for a period not exceeding five hours in length each calendar month with such time to be supervised by a commercial supervision organisation or such persons as are agreed in writing between the mother and father. The proposed orders were silent as to the residential circumstances of the children but it is to be inferred that they were to remain residing with the mother.

7. Quite understandably the mother expresses concern that the father into the future would be unable to control his sexual urges particularly as to her knowledge he has sought no professional engagement or treatment now for some three years.

8. The older child is now in Year 1 at school and progressing well. The younger child is attending preschool two days per week and otherwise the mother is assisted in his care by the maternal grandmother. It is proposed that the younger child will commence school in the 2017 academic year. Both children are in good health.

9. The mother and children continue to reside in the former matrimonial home that provides comfortable and adequate accommodation for the children. The children are appropriately engaged in extracurricular activities.

10. The mother is in employment in the Suburb D area west of Sydney.

11. The mother has observed a significant improvement in the children’s behaviour and happiness since the father departed overseas in May 2016 and particularly since electronic communication ceased in early June. This observation is particularly so in relation to the younger child.

12. Neither child has expressed any distress at having no communication with the father although the eldest child has expressed some anger as to why the father is not present in her life. The mother has engaged the child with an appropriate counsellor.

13. The mother has recently received from the father a parcel for the children. The parcel included a postcard depicting three Buddhist statues “see no evil, hear no evil, speak no evil” and some clothing. The mother passed on the clothing to the children and informed the father by email that the children had received those items.

14. The mother has sent to the father more recently an email attaching some photos of the children and is willing to receive from the father appropriate gifts for the children.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1) The objects of this Part 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.

   (2) 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).

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

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

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:

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

   b)        …

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

2. If the presumption in s 61DA is to apply and the court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.

3. It is clear in this matter that the presumption will not apply by reason of the father’s conduct and a consideration of the best interests of the children. The parties had previously agreed that the mother would have sole parental responsibility. Such order will be made.

4. There is no need to consider equal or substantial and significant time. Appropriate time will be determined by the best interest considerations.

Best Interests

The Primary Considerations: s 60CC (2)

1. The primary considerations are:

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

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

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

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

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

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

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

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

3. The children’s relationship with the father is overshadowed by the issues discussed above, primarily the overshadowing spectre of the father’s behaviour and mental health issues. The manner in which the children can have a meaningful relationship with the father is clouded by his own conduct and the need to fashion orders protective of the children in both the short term and long term.

4. This leads to the conclusion that in the present circumstances the children cannot benefit from time with the father. Such time presents an unacceptable risk to the children.

5. It is otherwise clear that it is important for the children to continue in the primary care of the mother.

Section 60CC (2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above there are significant and unacceptable risk factors in the children’s engagement with and time with the father.  In themselves they are determinative of this application.

1. This consideration, which is to be given primacy, is supportive of the orders sought by the mother.

The additional considerations: s 60CC (3)

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

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)        The nature of the relationship of the child with:

   i)        Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)       To spend time with the child; and

   iii)      To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)        Either of his or her parents; or

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

   with whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)        The capacity of:

   i)        Each of the child's parents; and

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

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

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)        If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

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

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)        The nature of the order;

   ii)       The circumstances in which the order was made;

   iii)      Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)         Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

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

2. Many of the considerations above are relevant in the context of the background matters discussed. They are all indicative of orders being made as sought by the mother.

3. Orders will be made as set out at the forefront of these reasons for judgment.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 September 2016.

Associate: 

Date:  2 September 2016