Calleja & Collery
[2022] FedCFamC1F 637
Federal Circuit and Family Court of Australia
(DIVISION 1)
Calleja & Collery [2022] FedCFamC1F 637
File number(s): BRC 4903 of 2020 Judgment of: JOHNS J Date of judgment: 5 September 2022 Catchwords: FAMILY LAW – CHILDREN – Magellan – parental responsibility – with whom a child should live – with whom a child should spend time – family violence – allegations of child sexual abuse – where the parties’ eldest child currently resides in foster care – where the parties’ eldest child poses a risk to the subject child – where the parties’ eldest child is subject to Children’s Court orders
FAMILY LAW – PROCEDURAL – application to proceed undefended – where the applicant father disengaged from proceedings – where the applicant father was afforded procedural fairness – where the applicant father had sufficient notice of the hearing and applications before the court – where the father is the applicant and has elected not to prosecute his case – where serious allegations have been raised throughout the proceedings – where the matter requires finality
Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 64B, 65C, 65DAA
Cases cited: Mazorski & Albright [2007] Fam CA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Division: Division 1 First Instance Number of paragraphs: 129 Date of hearing: 1 August 2022 Place: Melbourne The Applicant: No Appearance Counsel for the Respondent: Ms Juneja Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Mr Tesoriero Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
BRC 4903 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CALLEJA
Applicant
AND: MS COLLERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
5 September 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child X born in 2011 ("X").
3.That X live with the Mother.
4.That X spend supervised time with the Father as follows:-
(a)The Father to provide the Mother with 30 days' written notice by email of his intention to commence supervised time with X and within 10 days of the Father's notice, the Mother will nominate a Children's Contact Centre ('the Centre') or professional supervisor;
(b)The Mother and Father do all things necessary to submit their individual Application to the Centre or professional supervisor and comply with the necessary intake interview as may be required by the Centre or professional supervisor;
(c)X shall spend supervised time with the Father for up to two (2) hours each occasion for four (4) occasions per year, or as otherwise agreed in writing; and
(d)The Father is responsible for the costs of the supervision and intake (if any).
5.The Mother and Father communicate with each other by email only in relation to parenting matters with such emails to be child focused, civil and polite.
6.The Mother and Father notify the other as to any change of their email and/or mobile telephone within 24 hours of any such change.
7.The Mother by her servant and/or agents be and is hereby restrained from allowing X to contact or communicate with her brother Y born in 2009 ("Y") unless it is assessed by Child Protection in Queensland that Y is no longer a risk or is assessed as a low risk to X.
8.That unless otherwise provided for by these orders, for the personal protection of X, the Father by himself, his servants or agents (including friends and family members) be and is hereby restrained from contacting, communicating or attempting to contact or communicate with X by any means whatsoever (including social media).
9.The Mother is permitted to provide a copy of these orders and Reasons for Judgment to:-
(a)Any school, after school care provider, or extracurricular activities provider that X attends from time to time;
(b)Any medical practitioner and any other allied health professionals including counsellors, psychologist and/or psychiatrists treating X;
(c)Any government or non-government agency in relation to any matters concerning:-
(i)Parental responsibility;
(ii)Care of X;
(iii)The personal protection of X and/or the Mother;
(iv)Applying for and obtaining a passport for X.
10.The Mother is permitted to provide a copy of the following documents to her own and/or X’s treating counsellors, psychologist and/or psychiatrists for the purpose of treatment:-
(a)Family Report prepared by Family Consultant Ms C dated 30 May 2022;
(b)Reasons for Judgment delivered by a Senior Registrar dated 29 September 2020;
(c)These Reasons for Judgment; and
(d)Report prepared by Mr D dated 27 December 2018.
11.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) ("the Passports Act") this order expressly permits the issue of a passport or travel document (within the meaning of the Passports Act) for X upon application by the Mother and the Father's consent is not required.
12.The appointment of the Independent Children's Lawyer be discharged.
13.All extant applications be otherwise dismissed.
14.Pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND THE COURT NOTES:-
A.The child, Y, born in 2009 ("Y"), remains subject to a court order made in the […] Court of […]. Y lives in Queensland with his foster carers. The Mother communicates with Y by telephone via his foster carers.
B.For the purpose of the Father's communication with the Mother pursuant to Orders 4 and 5 above, the Mother's email address is: …
C.The Father has advised the Independent Children's Lawyer that his current email is … and his mobile phone number is ...
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Calleja & Collery has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant father, Mr Calleja, and the respondent mother, Ms Collery, are parents to two children, Y, born in 2009 (aged 13 years) and X, born in 2011 (aged 11 years).
The parties have been in dispute as to parenting arrangements for the children since January 2017 when the father over-held the children at the conclusion of their school holiday time with him in Queensland.
At that time, the father raised serious allegations with respect to disclosures allegedly made by X that she had been sexually abused by the mother and her half-sister Z, who is the mother's child from a previous relationship.
Since that time, there have been proceedings in the […] Courts of Queensland and Victoria with respect to the children's care arrangements. At the date of hearing the proceedings with respect to Y were ongoing. Since early 2022, Y has been placed in foster care in Queensland and there were further hearings scheduled in relation to his care arrangements in Queensland in mid 2022.
These proceedings were commenced by the father in May 2020. At that time, the father sought orders that X live with him, that he have sole parental responsibility for major long-term issues with respect to X and otherwise that his further proposals be reserved until such time as the release of a Family Report.
The mother opposes the father's application. She seeks orders that X live with her and that she have sole parental responsibility for long-term decisions regarding X. In addition, she seeks orders that the father spend supervised time with X. It is the mother's position that the disclosures made by X with respect to sexual abuse are the product of the influence of the father and those associated with him. The mother denies all allegations of inappropriate behaviour towards the children. She also denies that the children have been the subject of abuse at the hands of their older half-sibling.
Further, the mother alleges that both she and the children were exposed to significant family violence at the hands of the father and that the father abuses illicit substances. On this basis, it is the mother's position that the father poses a risk to the children.
Interim orders were made by a Senior Judicial Registrar in September 2020 which provided that X live with the mother. X has had no time with the father since October 2020. The father's telephone communication with X has been sporadic since that time.
The matter was allocated to my docket in 2021 and on 10 December 2021 I made directions listing this matter for a final hearing before me to commence on 1 August 2022. At the time I made those orders, the father was represented.
The father's lawyers filed a Notice of Ceasing to Act on 1 April 2022. That document confirmed that the next court event was the final hearing listed before me to commence at 10:00am on 1 August 2022.
The father did not appear at the final hearing. As a result, the mother seeks leave to proceed with her Amended Response to Initiating Application filed 29 July 2022 on an undefended basis.
These are my reasons for judgment with respect to the mother's applications.
THE PARTIES
The father is aged 41 years. He resides in Queensland. He has re-partnered with Ms B, with whom he has two children, V, aged approximately three years, and W, aged approximately one year.
The mother is aged 39 years. She is engaged in part-time employment. She lives in Victoria with X and her child from a previous relationship - Z, aged 16.
The parties commenced cohabitation in November 2006 and separated on a final basis in August 2015.
BACKGROUND
It is the mother's case that the parties finally separated as a result of family violence perpetrated by the father towards her. Following the parties' separation, an application was made on behalf of the mother by Victoria Police for an intervention order against the father to protect her and the children. The mother alleges that she was a victim of physical assaults at the hands of the father. Further, she alleges that the children were also exposed to that violence.
The mother alleges that the father was charged with contravening the intervention orders made for her protection.
In about late 2015 the father relocated from Victoria to Queensland to live with his current partner, Ms B.
Parenting proceedings were originally commenced by the father in the Federal Circuit Court (as it then was) at Brisbane. Those proceedings were finalised by Final Orders made by Consent on 8 December 2016. Those orders provided that the children, Y and X, live with the mother and spend time with the father during school holiday periods.
In accordance with those orders, the children travelled to Queensland to spend time with the father during the long summer holiday period in 2016/2017.
The father alleged that during that holiday period, the children made disclosures of sexual abuse committed against them by their older half-sibling Z and the mother. Those allegations are denied by the mother. As a result of the alleged disclosures, the father refused to return the children to the mother at the conclusion of their time with him.
As a consequence of the father's over-holding of the children, in February 2017, the mother made application to the Federal Circuit Court (as it then was) for a recovery order. Orders were made for the father to return the children to the mother's care in Victoria. The children were over-held by the father for a period of six weeks on that occasion.
As a result of the alleged disclosures made by the children, they were interviewed by Queensland Police, Victoria Police and Child Protection. The s 69ZW report produced by the Department of Families Fairness and Housing ("DFFH") dated mid-2022 ("s 69ZW report") discloses that the Sexual Offences and Child Investigation Team (SOCIT) assessed Y's disclosures as "not credible and physically impossible" and that X did not make any disclosures and indicated that she felt safe with both the mother and the father. As a result of that assessment, the matter was closed at investigation phase by the Department.
In mid 2017, whilst the children were in the mother's care, X was injured by Y who inserted an object into her vagina. X was hospitalised as a result of that incident and was examined by the Victorian Forensic Paediatric Medical Service. As a result of that incident, Child Protection Services made protection applications with respect to the children. Those applications resulted in X living with the mother; in early 2018, Y relocated to Queensland to live with the father.
In late 2019, Child Protection Services in Queensland placed Y into out-of-home care.
X travelled to Queensland for holiday time with the father in January 2020. It is alleged that during that visit, X made further disclosures to a family friend of Ms B that she had been sexually abused by her half-sister, Z. As a result of the alleged disclosures, X was again interviewed by Queensland Police.
The father was directed to return X to the mother's care by Child Protection Victoria. The father refused to comply with that request and as a result, in early 2020 Child Protection applied for a Safe Custody warrant to have X returned to the mother's care.
As a result of the alleged disclosures by X, she was again interviewed by SOCIT in early 2020. The DFFH reports in their s 69ZW report that during that interview, X disclosed that a friend of Ms B had told her to make the disclosures about Z. Given the information provided by X during that interview, no further action was taken by SOCIT.
The father commenced these proceedings in the Federal Circuit Court of Australia (as it then was) on 1 May 2020. He sought both interim and final orders that X live with him and that he have sole parental responsibility.
X again travelled to Queensland to spend time with the father in mid 2020. Again, X was not returned to Victoria by the father, this time as a result of the travel restrictions imposed due to the COVID-19 pandemic.
The father's application for interim parenting orders was listed and heard by the Court on 28 September 2020 with orders made on 29 September 2020. Those orders provided that until further order, X be returned to the mother's care, she live with the mother and that the mother have sole parental responsibility. Further orders were made for X to spend supervised time with the father for up to two hours once per fortnight, such time to occur at a supervised contact centre.
Notwithstanding those orders, the child was not returned to the mother's care. As a result, a recovery order issued on 8 October 2020 following which the child returned to the mother's care.
Although orders were made at that time for the father to spend supervised time with X, he has not availed himself of that opportunity. X has spent no time with the father since October 2020.
By agreement between the parties, since December 2020 the father has had occasional telephone communication with X. It is the mother's case that even such telephone communication has been infrequent and the father has on a number of occasions disappointed X by failing to engage in such calls as scheduled.
On 10 December 2021, I made trial directions listing the matter for final hearing before me to commence on 1 August 2022. The parties were both represented by lawyers at that hearing. Orders were made for the father to file and serve his trial documents by 14 February 2022. In addition, orders were made for the preparation of a Family Report pursuant to s 62G(2) of the Act.
The father has filed no material in compliance with those trial directions. Further, the father did not participate in the assessment process conducted by Court Child Expert Ms C for the purposes of the preparation of the Family Report. At page 3 of the Family Report dated 30 May 2022, the Court Child Expert notes the attempts made by her to contact the father for the assessment. Those attempts included emails sent to him on 16 March 2022 and 28 March 2022 as well as telephone calls made to him on the day of the scheduled interview, being 28 March 2022. A further telephone call was made to the father on 5 April 2022 to no avail.
As a result of the father's lack of engagement in the proceedings since the trial directions were made in December 2021, the mother seeks leave to proceed with her amended response on an undefended basis.
Should the Mother have leave to proceed on an Undefended Basis?
The parties were notified of the trial date during the Case Management Hearing conducted by me on 10 December 2021. That day, the father was represented by his lawyer.
That lawyer remained on the record for the husband until she filed a Notice of Ceasing to Act on 1 April 2022. At Part B of that Notice, the father was informed that the Court would be advised as to his last known address, telephone number and email address. The father was provided with a Notice of Address for Service for completion. He was also advised as to the next Court event in the following terms:-
The next time this case is listed before the Court is on 1 August 2022 - 5 August 2022 at 10AM for Trial.
(Emphasis in Original)
Upon the commencement of the hearing, I caused my Legal Associate to call the father in the Court precincts. He was called at 10:05am. There was no appearance on behalf of the father in response to that call.
The matter was stood-down to enable the mother's lawyers to attend to some procedural matters. Upon the resumption of the hearing at 11:20am, the father was again called by my Legal Associate in the precincts of the Court. The father did not answer that call.
It was submitted by both the mother and the ICL that the matter ought proceed on an undefended basis in the father's absence.
It was submitted on behalf of the mother that the father had had notice of the hearing both by his own previous lawyers as well as through communications from both the mother's lawyer and the ICL.
The mother's lawyer, was called and gave evidence in relation to her communications with the father regarding the hearing. During her evidence, the mother’s lawyer confirmed that:-
·She is a Lawyer at Victoria Legal Aid and she has conduct of the mother's file;
·She made numerous attempts to communicate with the father between April and July 2022;
·On 19 July 2022 she forwarded an email to the ICL which was copied to the father (Exhibit R-1), outlining her efforts to communicate with the father regarding the proceedings and her client's proposals to finalise the matter. Included in that communication was a minute of proposed final orders prepared on behalf of the mother, a subpoena to produce documents directed to Queensland Police, filed on behalf of the mother, and a copy of an article published on the Newspaper E website in mid 2022.
The mother’s lawyers’ evidence was that that email was forwarded to the father's email address as noted on the Notice of Ceasing to Act.
The mtoher’s lawyer also gave evidence that she had communicated with the father by telephone on 19 July 2022, using a mobile telephone number provided to her by the mother. That telephone call was answered by the father's partner, Ms B, who provided the mother’s lawyer with the father's contact telephone number and also provided her with a copy of her own email address.
The mother’s lawyer gave evidence as to a subsequent phone call made by her to the father on 19 July 2022. She confirmed during her oral evidence that she informed the father as to the hearing listed to commence on 1 August 2022 and confirmed that he would be required to attend Court that day. The father provided her with an updated email address. Following that telephone call, the mother’s lawyer gave evidence that she forwarded a copy of her original email sent 19 July 2022 to both Ms B and to the father at the email addresses provided by them (Exhibit R-2).
tHE mother’s lawyer gave evidence that she received a phone call from the ICL on 27 July 2022 informing her that the father had provided the ICL with another email address which he prefers to use due to difficulties he claimed to have in receiving emails from the address previously provided to the mother’s lawyer. The mother’s lawyer gave evidence that upon receipt of that communication, she caused a further email to be sent to the father at the email address provided by him to the ICL forwarding the letter previously sent by her with enclosures (Exhibit R-4).
The mother’s lawyer also confirmed that she had received the following information from the ICL:-
·The father stated that he was only informed last week that the matter was before the Court;
·He had not received the Family Report. The ICL caused a copy of that document to be forwarded to him;
·The father proposed to fly to Melbourne to attend the hearing on 1 August 2022;
·The father was endeavouring to obtain a lawyer that day; and
·The father wished to resume "normal contact", namely that he have half school holidays, with X.
The ICL also caused an email to be forwarded to the father informing him that the Court may proceed with the hearing on its listed date (either on a defended or undefended basis), that he may not be permitted to cross-examine the mother personally if he does not have a lawyer representing him and that he should retain a Barrister to appear on his behalf at the final hearing. In that correspondence, the ICL provided the father with a link to the Victorian Bar website. She also confirmed that she had briefed Counsel to appear at the final hearing and that the mother too had briefed Counsel to represent her at the final hearing (Exhibit R-3).
The mother’s lawyer confirmed during her oral evidence that she had received no communication from the father in response to the emails sent by her to him (Exhibits R-1, R-2 and R-4). Further, she confirmed that she had received no notification from the father's email server that the emails forwarded by her to his email addresses had not been received.
In light of the father's failure to appear at the final hearing, coupled with his failure to comply with the trial directions requiring that he file his trial documents by 14 February 2022 or attend upon the Court Child Expert for the purposes of the preparation of the Family Report, it was submitted that the matter should proceed on an undefended basis. That application was supported by the ICL.
In light of the fact that the father was represented at the hearing at which the trial directions were originally made, that he was notified of the final hearing in the Notice of Ceasing to Act filed by his former lawyers on 1 April 2022 and having regard to the information provided to him regarding the final hearing by both the mother's lawyer and the ICL, I am satisfied that the father has had notice of the final hearing and of the mother's intention to proceed with her application for final orders at the hearing.
I am also satisfied that the father has been on notice as to the orders sought by the mother, having been provided with the minute of proposed orders sought by her in the email forwarded to him on 19 July 2022 (Exhibits R-1 and R-2). Further, the father has been on notice that the mother sought orders for the child X to live with her since the filing of her original Response to Application for Final Orders on 16 June 2020.
I am satisfied that the father has been afforded procedural fairness. I am also satisfied that the father has had notice of the intention of the mother to seek to proceed with her application for final orders on an undefended basis and further, that he has had notice of the final orders sought by her.
I am also satisfied that the father has failed to comply with the trial directions made by me on 10 December 2021.
Having regard to those matters, I am satisfied that the mother should have leave to proceed with her application for final orders on an undefended basis.
MATERIAL RELIED UPON
The mother relied upon the following documents:-
·Amended Response to Final Orders filed 29 July 2022;
·Affidavit of the mother filed 29 July 2022;
·Family Report dated 30 May 2022; and
·Exhibits R-1 to R-4 inclusive, being documents tendered during the course of the hearing.
The ICL relied upon the following documents:-
·Outline of Case document filed 28 July 2022;
·Family Report dated 30 May 2022;
·S 69ZW Report dated 1 February 2022; and
·Report of Mr D, Psychologist, dated 27 December 2018.
ORDERS SOUGHT
Both the mother and the ICL sought final orders as follows:-
(1)All previous parenting orders be discharged.
(2)The Mother have sole parental responsibility for the child X born in 2011 ("X").
(3)X live with the Mother.
(4)X spend supervised time with the Father as follows:
(a)The Father to provide the Mother with 30 days' written notice by email of his intention commence supervised time with X, and within 10 days of the Father's notice, the Mother will nominate a Children's Contact Centre ('the Centre') or professional supervisor;
(b)The Mother and Father will do all things necessary to submit their individual Application to the Centre or professional supervisor and comply with the necessary intake interview as may be required by the Centre or professional supervisor;
(c)X shall spend supervised time with the Father for up to two (2) hours each occasion for four (4) occasions per year or as otherwise agreed; and
(d)The Father is responsible for the costs of the supervision and intake (if any).
(5)The Mother and Father communicate with each other by email in relation to parenting matters only with such emails to be child focused, civil and polite.
(6)The Mother and Father shall keep the other updated as to any change of their email and/or mobile telephone within 24 hours of any such change.
(7)The Mother, her servants and/or agents are restrained from allowing X into contact or communication with her brother Y unless it is assessed by Child Safety in Queensland that Y is no longer a risk or is assessed as a low risk to X.
(8)Unless otherwise provided for by these Orders, for the personal protection of X, the Father, his servants and/or agents (including friends and family members), be and are hereby prohibited from contacting or attempting to contact X by any means (including social media).
(9)The Mother is permitted to provide a copy of these orders to:-
(a)Any school, after school care provider, or extracurricular activities provider that X attend from time to time;
(b)Any medical practitioner and any other allied health professionals including counsellors, psychologist and/or psychiatrists treating X;
(c)Any government or non-government agency in relation to any matters concerning:-
(i)Parental responsibility;
(ii)Care of X;
(iii)The personal protection of X and/or the Mother;
(iv)Applying for and obtaining a passport for X.
(10)The Mother is permitted to provide a copy the following documents to her own and/or X’s treating counsellors, psychologist and/or psychiatrists for the purpose of treatment:
(a)The Family Report prepared by Family Consultant Ms C dated 30 May 2022;
(b)The Reasons for Judgment delivered by a Senior Registrar dated 29 September 2020; and
(c)Report prepared by Mr D dated 27 December 2018
(11)For the purposes of section 11 of the Australian Passport Act 2005 (Cth) ("the Passport Act") this order expressly permits the issue of a passport or travel document (within the meaning of the Passport Act) for X upon application by the Mother and the Father's consent not required.
(12)The appointment of the Independent Children's Lawyer be discharged.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 (Cth) ("the Act") sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Parenting orders are defined by s 64B of the Act as including all orders with respect to:-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child
…
The orders sought by the mother are parenting orders within the definition provided by s 64B, being orders relating to each of these identified matters. The mother indisputably has standing to apply for such orders pursuant to s 65C of the Act, as a biological parent of the child.
In determining what parenting orders should be made, the court must regard the best interests of the child as the paramount consideration (s 60CA).
Sections 60CC(2) and (3) of the Act provide the primary and additional considerations to which the Court must have regard in determining what is in the child's best interests. This is qualified by s 60CC(2)(b) which provides that the Court must give greater weight to the need to protect children from physical or psychological harm from being exposed to abuse, neglect or family violence. With the exception of this qualification, the weight afforded to each of the primary and additional considerations is a matter dependent upon the unique circumstances of the case; there is no requirement that the primary and additional considerations be considered in a particular order or for any of such to be afforded greater weight.
As to the manner in which the court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance...
(Emphasis in Original)
The Act imposes a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. For the reasons set out below, I am not satisfied that it is in the child's best interests for the mother and the father to have shared parental responsibility. I will make orders that the mother have sole parental responsibility for the child.
As a result of my finding that the mother should have sole parental responsibility for the child, the Court is not required to consider whether the child spending equal time or substantial and significant time with each parent would be in her best interests and whether it is reasonably practicable to do so (s 65DAA of the Act).
The evidence of the mother, as contained in her affidavit filed 29 July 2022, is unchallenged.
Findings are made on the balance of probabilities having regard to the evidence before the Court (Evidence Act 1995 (Cth) s 140). In what follows, statements of fact constitute findings of fact.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.
SECTION 60CC CONSIDERATIONS
Primary Considerations: Section 60CC(2)
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
Ordinarily it is in the best interests of a child to have a meaningful relationship with both of their parents. The question of what amounts to a "meaningful relationship" was considered by Brown J in Mazorski & Albright [2007] Fam CA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents…
…
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will 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.
(Emphasis in Original)
X has spent no time with the father since October 2020, notwithstanding orders made in September 2020 to facilitate him spending supervised time with her.
Following the making of those orders, it is the wife's evidence that an agreement was made between the parties to enable the father to have telephone communication with the child. Again, notwithstanding those arrangements, it is the mother's evidence that the father has not availed himself of the opportunity to communicate with X on a consistent basis. It is her evidence, as set out at [149] to [171] inclusive of her trial affidavit, that there have been occasions where the father has not exercised the time. On other occasions he has communicated with X and raised with her issues regarding these proceedings necessitating the termination of those calls. The mother's evidence is that X has been disappointed by the father on occasions when arrangements have been made for such communication and the father has not followed through. It was submitted on the mother's behalf that such instances have left X feeling abandoned by the father.
The father is the applicant in these proceedings but has now seemingly disengaged and has elected not to attend at or participate in the final hearing.
Given those circumstances, in my view there is little benefit to the child in the Court attempting to frame specific orders for him to spend time with X.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
It is the mother's case that X has been exposed to family violence perpetrated by the father during the parties' relationship. The mother's position is that the child needs to be protected from parental conflict and the risk of family violence by the father. In addition, the mother alleges that the father has used illicit substances.
It is also submitted that the child has been exposed to psychological harm when in the father's care. In particular, it is alleged that the child has been subjected to influence and coaching by the father and/or his partner in relation to the alleged disclosures made by her that the mother and/or her half-sister have perpetrated sexual abuse against her. In support of that submission, reliance is placed upon the s 69ZW report. In particular, in relation to the original disclosures allegedly made by the children when in the father's care, it was noted that the disclosures made by Y were described by SOCIT as "not credible and physically impossible" and further, that X did not make any disclosures on that occasion and indicated that she felt safe with the mother and the father.
Subsequent reports by the Department indicate that disclosures made by X when in the father's care were made as a result of the influence of a friend of the father's partner.
The only disclosures of abuse made by X have occurred when she has been in the father's care. The DFFH has expressed significant concern that X has been coached into making unsubstantiated disclosures when in the father's care.
It was also submitted that the father has failed to comply with Court orders, necessitating the making of recovery orders in these proceedings on two separate occasions.
In light of the above matters, it is submitted on behalf of both the mother and the ICL that it is necessary to protect X from psychological harm when in the father's care.
It is also submitted by the mother that X is at risk of exposure to physical harm or neglect when in the father's care as a result of his history of drug use and family violence.
Having regard to the mother's unchallenged evidence, which I accept, as well as the matters contained in the s 69ZW report, and in circumstances where the father has elected not to participate in these proceedings, I am satisfied that it is necessary to make orders to ensure that X is protected from the risk of physical and psychological harm posed in the father's care.
I now turn to the additional considerations.
Additional Considerations: Section 60CC(3)
(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;
X attended for interview with the Court Child Expert as part of the preparation of the Family Report dated 30 May 2022.
The Court Child Expert observed that X was wary of her and it was her assessment that X's mistrust was likely a result of the extensive and enduring role Family Services and Police have played in X's life.
At page 9 of the Family Report, the Court Child Expert reported with respect to X's view of her circumstances as follows:-
Although the conversation with [X] was not expansive, and she remained guarded to discuss her relationships, [X] clearly reported feeling safe in her current care arrangements, residing with her mother and her elder sister [Z]. She described her mother as "fun and kind", when speaking about [Z] and what their relationship was like, [X] reported "I don't know, just like normal sisters".
As to X's relationship with the father, Ms C reports as follows:-
She identified her father as "cool" but stated that she had not thought about what kind of relationship she wanted with him, and whether this included in-person spend time. At this point in time, it is possible that this conversation was too challenging for [X]. Considering her experiences and the number of professionals who have interviewed her about this, it is likely that this interview, and any further interviews of this nature could be traumatic for her.
There is no challenge to the evidence of the Court Child Expert, Ms C. Accordingly I accept her evidence as to the views expressed by X.
(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);
and
(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;
The mother has been X's primary care-giver since final orders were originally made in 2016.
The observation of Court Child Expert Ms C indicates that X feels safe in her current care arrangements with the mother. I accept that evidence.
In addition to her relationship with the mother, the evidence before the Court indicates that X has positive relationships with her half-sister, Z, and her maternal grandmother.
X has spent no time with the father since October 2020 and has had only sporadic telephone communication with him since that time. Although orders have been in place since September 2020 for the father to have supervised time with X, he has not availed himself of this opportunity.
The father refused to comply with orders for him to return X to the mother's care made 29 September 2020. This necessitated the making of a recovery order for the return of X to the mother.
I am satisfied that the father has failed to avail himself of time with X as provided by the orders of 29 September 2020 and further, that he has failed to comply with orders of the Court in relation to the return of X to the mother's care. I am satisfied that the father's conduct has adversely impacted on his ability to develop and maintain a relationship with X.
(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;
The mother's unchallenged evidence is that she currently receives the sum of $37 per month by way of child support from the father. Otherwise, she is solely responsible for X's support and is reliant upon a Centrelink single parenting payment to provide that support.
I accept the mother's unchallenged evidence with respect to the financial support she provides for X.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders sought by the mother will ensure a continuation of the existing arrangements for X.
Accordingly, the mother and X will continue to live with Z. The maternal grandmother lives in close proximity to the mother's home and it is the mother's unchallenged evidence that X spends time with the maternal grandmother on a weekly basis.
The mother's home is close to X's school.
Having regard to the evidence contained in the Family Report, I am satisfied that the mother will continue to provide appropriate support for X's physical, emotional and intellectual needs.
(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;
The orders I make will provide the father with the opportunity to spend supervised time with X on four occasions per year, should he elect to do so. Given that he has not availed himself of time pursuant to the previous orders, I have no confidence that such time will occur. The onus will be on the father to give reasonable notice of his proposal to spend time and to make the necessary arrangements and meet any expense associated with such time. In circumstances where the mother is paid nominal child support and has ongoing day-to-day responsibility for the care of X, I am satisfied that such arrangements are appropriate so as to minimise any disruption to her usual daily routines.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has attended to all of X's physical, emotional and intellectual needs since the parties' separation in 2015. She has been solely responsible for those needs since October 2020.
The mother has demonstrated a steadfast commitment to the care of X and to her responsibilities as a parent. The mother has had the support of her mother, who has provided regular support and assistance in caring for the child.
The father has spent no time with X since October 2020. His telephone communication with her has been sporadic. Further, he has not actively participated in these proceedings since December 2021. Having regard to that conduct, I am satisfied that he has shown little commitment to his responsibilities as a parent.
(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;
These matters are not relevant to the issues in dispute.
(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
The mother alleges that the father has perpetrated family violence against her and the children. The mother has previously obtained intervention orders for the protection of herself and the children. Those orders have now expired.
The father alleged that both X and Y had been subjected to inappropriate sexual conduct and abuse by the mother and their half-sibling, Z. Those allegations have been vehemently denied by the mother throughout these proceedings. Those allegations have been investigated by Child Protection authorities in both Queensland and Victoria and have not been substantiated. Indeed, the documents produced by the Department of Families, Fairness and Housing pursuant to the s 69ZW order report that Child Protection has concern that the children have been subjected to influence and/or coaching in the father's household.
As a result of Y's behaviour towards X, he was removed from the mother's home - initially to the father's home in Queensland and then, pursuant to Child Protection orders, to an out-of-home placement. Since approximately early 2022, Y has been living with foster parents pursuant to orders made in the […] Court. That Court continues to be seized of jurisdiction with respect to Y's care arrangements.
(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;
X has been the subject of ongoing disputes and litigation since the parties' separation in 2015. She has been interviewed by Police and Child Protection workers in both Queensland and Victoria. She has also participated in the preparation of two Family Reports with Mr D in 2018 and more recently with Court Child Expert Ms C in 2022. She has also been over-held by the father on at least two occasions, necessitating the issue of a recovery order to return her to the mother's care.
The observations of the Court Child Expert are compelling as to the impact of the Child Protection and Court proceedings upon X. At page 8 of the Family Report, X was described as follows:-
Upon meeting [X], and bringing her through for an interview she was resistant to engaging in conversation, initially refusing to sit down with the writer and remained standing against the wall... [X] was clearly weary of the writer, with this high level of mistrust likely being significantly impacted by the extensive and enduring role family services, and police have played in [X's] life thus far.
Further, at page 9 of the Family Report, the Court Child Expert observed:-
Considering her experiences and the number of professionals who have interviewed her about this, it is likely that this interview, and any further interviews of this nature could be traumatic for her.
In conclusion, at page 10 of the Family Report, the Court Child Expert observed:-
When interviewing [X] she presented as resistant, and suspicious of the writer. This presentation is consistent with a child that has been overly exposed to professionals, and has possibly lost trust in these adults. This could shape [X’s] view as she grows older, and may predispose her to not seek help in the future if required. [X] needs to be alleviated of this burden moving forward and supported in re-establishing a sense of trust that the adults in her life are able to keep her safe and prioritise her needs, along with her focus on more age appropriate things such as friends and school.
Having regard to the assessment of the Court Child Expert as to the impact of the proceedings upon X, which I accept, I am satisfied that it is in her best interests that final orders be made so as to bring an end to these proceedings and to provide her with certainty, routine and stability with respect to her future care arrangements.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances relevant to this matter.
CONCLUSION
The mother seeks an order that she have sole parental responsibility for X. That application is supported by the ICL.
In circumstances where the mother has been solely responsible for all aspects of X's day-to-day care, welfare and development since October 2020 and, prior to that, for the majority of time since the parties' separation in 2015 given that the father relocated to Queensland at that time and X remained in Victoria with the mother, and where the father has disengaged from the Court proceedings, I am satisfied that it would be contrary to X's best interests were there to be orders that the parties have equal shared parental responsibility. An order that the mother have sole parental responsibility for X's long-term care, welfare and development reflects the reality of her life, as the mother has assumed primary responsibility for all aspects of her care since the parties' separation.
Further, that order will ensure that the mother is able to continue to fulfil her responsibilities for X as her primary care-giver without disruption. I am satisfied that an order in those terms is in X's best interests. Accordingly, I will make orders as sought by the mother.
The mother also seeks orders that X continue to live with her. Again, that application is supported by the ICL. This too is an order that reflects the reality of X’s life. The order as sought will ensure X's ongoing security and stability in the mother's care. I am satisfied that an order in those terms is in X's best interests.
It is the position of both the mother and the ICL that provision should be made for the father to have supervised time with X, save that the onus will be on the father to provide notice of such arrangements and to make the necessary arrangements for that time as well as meet the costs associated with it. I am satisfied that such arrangements are appropriate and in X's best interests. Orders placing responsibility on the father to organise and commit to such time will hopefully ensure that the child does not suffer the weight of disappointment of the father failing to attend scheduled Court-ordered spend-time periods.
The mother and the ICL seek orders that enable the father to have supervised time with X, subject to conditions that:-
·He provide the mother with 30 days' written notice of his intention to commence such time;
·The mother and father submit individual applications to a professional supervisor or children's contact centre and undertake any required interview process conducted by those supervisors;
·The father be responsible for the costs of supervision and intake (if any); and
·Such time be limited to four occasions per year of up to two hours per occasion.
An order in those terms leaves the door ajar to the father to reconnect with X in a safe and secure setting. Given the allegations of family violence and in circumstances where he has a history of failing to comply with Court orders in relation to the return of X to the mother's care, I am satisfied that supervision is warranted. I am also satisfied that it is appropriate that the father be required to instigate the time and be responsible for meeting the costs associated with it given his disengagement from these proceedings and the mother's evidence as to his sporadic communication with X. The orders as sought will enable the father to re-engage with X should he choose to do so but will require commitment from him. In my view having regard to the history of his relationship with X and the concerns around his commitment and capacity to care for her, I am satisfied that such orders are appropriate and in X's best interests.
The ICL and the mother also seek orders which will ensure that the mother and the father have the ability to maintain communication with each other in relation to the children's welfare. I am satisfied that the orders sought that the parents keep each other updated as to their contact email and telephone numbers is appropriate.
Orders are also sought that any contact between X and Y be restrained unless it is assessed by Child Safety in Queensland that Y no longer poses a risk to X. Again, given the allegations as to Y's behaviour towards X, I am satisfied that such order is in her best interests.
I am also asked to make an order restraining the father by himself, his servants or agents from communicating with X or attempting to communicate with her by any means, including social media. Given the evidence produced by the Child Protection agencies as to the exposure of X to influence by the father and members of his household, in particular his partner, Ms B, and her friend, I am satisfied that such order is appropriate and in Y's best interest.
The mother and the ICL also join in seeking an order permitting the mother to provide copies of these orders, the Family Reports and Reasons for Judgment to X's school and health providers and to any government or non-government agency addressing issues associated with the care of X. I am satisfied that such order is in X's best interests to ensure that those caring for her are aware of X's experiences and needs.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 5 September 2022
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