Callow and Claxton
[2019] FamCA 610
•13 August 2019
FAMILY COURT OF AUSTRALIA
| CALLOW & CLAXTON | [2019] FamCA 610 |
| FAMILY LAW – PARENTING – Interim arrangement – Best interests of the child – Where orders are sought by the mother to preserve the status quo of the child – Where orders are sought to suspend previous Orders of the Court and to reserve time with the father pending a psychological assessment – Where the issue of risk to the child is so dominate that it outweighs all other considerations – Where the status quo will apply only until such time as the Court has the capacity to consider additional evidence – Orders made. |
| Family Law Act 1975 (Cth) ss 11C, 11F, 60CC. |
| Blinko & Blinko [2015] FamCAFC 146 Sirola & Sirola and Anor (No.3) [2016] FamCA 1076 Stott & Holgar and Anor [2017] FamCAFC 152 |
| APPLICANT: | Ms Callow |
| RESPONDENT: | Mr Claxton |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip Theobald |
| FILE NUMBER: | HBC | 27 | of | 2015 |
| DATE DELIVERED: | 13 August 2019 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 13 August 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Burke of Ogilvie Jennings |
| SOLICITOR FOR THE RESPONDENT: | Ms Pagett of Pagett & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mooney SC |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Derwent & Tamar Chambers |
Orders
The matter is listed for further directions at 9.30 am on 25 February 2020.
That until further order, paragraphs 4-20 and paragraph 32 of the Orders made on 11 August 2017 be suspended.
The father’s time with the child be reserved pending further order of the Court.
Pursuant to s 11F of the Act, the parties are to attend separate meetings with a Family Consultant nominated by the Child Dispute Section of this Registry at a time and date to be fixed by Child Dispute Services, and, pursuant to s 11C of the Act, such meetings be reportable.
Following the conclusion of the meetings with the Family Consultant, the Family Consultant provide a Memorandum concerning their assessment of the parties to the parties, the Independent Children’s Lawyer and the Court.
The parties have liberty to apply on 48 hours’ notice to the Court and other parties.
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 Callow & Claxton 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 HOBART |
FILE NUMBER: HBC 27 of 2015
| Ms Callow |
Applicant
And
| Mr Claxton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This matter concerns an Application in a Case filed 19 July 2019 by Ms Callow (“the mother”), in respect of the child, X born in 2012 (“the child”). The mother seeks Orders suspending Orders made by the Court on 11 August 2017 and, in place of those orders, she seeks Orders that impose a status quo of the current situation, where the child is not spending any time with Mr Claxton (“the father”). The mother further seeks an order that the issue as to whether the child should spend time with the father be reserved pending further assessment of the father by a Court appointed Family Consultant.
The Orders I have made in these proceedings are broadly consistent with the mothers Application, save in so far as I have amended the second order, such that it applies only until further order of the Court. In doing so I have made provision for the father to utilise the liberty to apply provisions set out in Order 6 to seek a modification of parenting arrangements if, upon advice, he considers that course of action to be appropriate.
The mother relies upon her Affidavit filed 19 July 2019. No material has been filed by the father.
In making the Orders that impose the status quo, in the circumstances where the child lives with the mother and has not seen the father in the period since December 2017, I have had regard to the provisions in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The law, concepts and principles relevant to this decision, in the context of the findings which I have made and will set out below have been set out in the decision of Sirola & Sirola and Anor (No.3) [2016] FamCA 1076, at paragraphs 63–76, as follows:
[63] Part VII of the [Family Law Act 1975 (Cth) (‘the Act)] sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Pt VII. These 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.
[64] Section 60B(4) notes that an additional object of Pt VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”). Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
[65] More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)).
[66] Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, s 61DA(2) provides that the presumption does not apply if:
(2)…there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
[67] Abuse is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
[68] Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
[69] Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property;…
[70] Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The presumption of equal shared parental responsibility
[71] In these proceedings it would be inappropriate for the presumption of equal shared parental responsibility to be applied by the Court in circumstances where, as I will detail, the father has engaged in conduct that constitutes family violence as defined in s 4AB of the Act.
[72] As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA does not apply and the Court is not obliged to consider equal time or substantial and significant time. Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein.
Paramount consideration in making parenting orders
[73] Section 60CA provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65AA.
[74] Section 60CC sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
[75] In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)).
[76] Section 60CC(3) sets out additional considerations in determining what is in a child’s best interests. Those considerations include:
•Sub-section (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.
•Sub-section (3)(b) — the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
•Sub-section (3)(c) — the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
•Sub-section (3)(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.
•Sub-section (3)(d) — the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
•Sub-section (3)(e) — the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
•Sub-section (3)(f) — the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
•Sub-section (3)(g) — the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
•Sub-section (3)(h) — issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
•Sub-section (3)(i) — the attitude to the child, and parental responsibilities, by each of the child’s parents;
•Sub-section (3)(j) — any family violence involving a child or a member of the child’s family;
•Sub-section (3)(k) — any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
•Sub-section (3)(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
•Sub-section (3)(m) — any other facts or circumstances the Court considers relevant.
[16] Essentially those provisions to which I have referred, confirm the fundamental object of proceedings involving applications for parenting orders is to make orders that are in the best interests of the child and in doing so I am required to have regard to those matters set out in s 60CC of the Act. I have had regard to all of those matters, but specifically those which I have found to be most relevant to the facts of this case. I address the following considerations specifically.
The concept of a meaningful relationship
[17] Firstly section 60CC (2A) requires me to have regard to the prospect of the child having a meaningful relationship with both parents, and indeed, as the solicitor for the mother indicated, the legislation speaks in terms of the child having a right to have a meaningful relationship with both parents. However, that needs to be balanced as against any issues of risk. Significantly section 60CC (2A) prioritises risk above the issue of a meaningful relationship.
[18] In a decision of Wilde & Foster [2018] FamCA 502, at paragraphs 97–100, I refer to several authorities confirming that the concept of a meaningful relationship is but one of the factors to which the Court is required to have regard, to the extent that it is in the interests of the child to have such a meaningful relationship. It is contended by both the mother and the Independent Children's Lawyer that, on the facts of this case, there is no such benefit. For reasons that I will explain, taking a cautious approach at this stage of proceedings, I accept that is the case.
Issue of risk
[19] The second consideration set out in s 60CC (2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with the father. The Court has confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm: Stott & Holgar and Anor [2017] FamCAFC 152 at 38.
[20] Having regard to the evidence set out in the mothers Affidavit, which attests to the father having significant mental health issues, I am satisfied, that there is an unacceptable risk in the child spending time with the father or indeed communicating with the father. In arriving at that decision, I note that in Blinko & Blinko [2015] FamCAFC 146, the Full Court discussed the appropriate approach to dealing with issues of risk and the obligation of the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks. The Full Court usefully summarised relevant authorities at paragraph 83, as follows:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
· If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
· If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
· Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
The central issue in these proceedings is the issue of risk to the child and of potential risk to the child in spending time with the father, as set out in s 60CC (2)(b) of the Act. In the decision of Blinko & Blinko [2015] FamCAFC 146, as referred to above, the Full Court discussed the appropriate approach to dealing with issues of risk and the obligation of the Court to consider whether the imposition of conditions or other safeguards would ameliorate that risk.
In the present circumstances, given uncertainties regarding the psychological health of the father, it is my view that the Court cannot be sufficiently confident that the child will not be placed in a situation of either psychological, or at least potential psychological harm in spending time with the father.
In those circumstances, I am not comfortable that the risk can be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the child and the father, pending further investigation and report regarding the father’s psychological health.
In those circumstances, while I have had regard to all of the considerations set out in s 60CC of the Act, including those set out in s 60CC (2)(b), the issue of risk is so dominant in these proceedings that it outweighs all other considerations. On that basis, I have made orders to effectively preserve the status quo of the child living with the mother and not seeing or communicating with the father. That status quo will apply only until such time as the Court has the capacity to consider additional evidence regarding the father’s psychological health and an Application is made by one of the parties for additional orders.
For the reasons provided in the body of this decision, I make the Orders as set out at the commencement of these Reasons for Judgement.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 13 August 2019.
Associate:
Date: 30 August 2019
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