Caprosi and Alton (No 2)

[2020] FamCA 714

FAMILY COURT OF AUSTRALIA

CAPROSI & ALTON (NO. 2) [2020] FamCA 714

FAMILY LAW – CHILDREN – undefended hearing – where the Father has not had contact with the child for in excess of a year – where the orders sought by the Mother are supported by the ICL – where onus is on the Mother to establish the factual matters that support the orders sought – where there would be no significant benefit to relationship with the Father – where there were serious incidents of family violence by the Father – where there is an unacceptable risk of harm of sexual abuse – where the Mother has progressed in her parenting capacity – where the Mother has received a psychological diagnosis and support – sole parental responsibility – where the child should live with the Mother – where the child should not have time or communication with the Father – travel and passports – name change.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

M & M (1988) 166 CLR 69

APPLICANT: Ms Caprosi

RESPONDENT: Mr Alton

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 1241 of 2016

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 27 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid

Orders

1. That all prior Orders be discharged.

2. That the child Y Alton, born … 2015, (hereafter “the child”) live with the Mother.

3. That the Mother have sole parental responsibility for the child.

4. The Mother be permitted, without the consent of the Father, to change the child’s name from Y Alton to Y Caprosi and do all acts and things to register the child’s change of name thereafter.

5. Pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) that the Mother be permitted, without the consent of the Father, to apply for and have issued an Australian travel document in the name of the child, Y Caprosi.

6. That the Father spend no time and not communicate with the child by any means.

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 Alton & Caprosi 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 CANBERRA

FILE NUMBER: CAC 1241 of 2016

Ms Caprosi

Applicant

And

Mr Alton

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern orders in the best interests of Y, who is five, and the child of Ms Caprosi and Mr Alton. 

2. For reasons given in the previous judgment the proceedings are now being conducted on an undefended basis with respect to the Father who was not present for the trial.  In accordance with previous orders the Father was served with the orders being sought by the Mother where she seeks an order for sole parental responsibility, that Y live with her, that Y spend no time with or communicate with the Father, that Y’s surname be changed to Caprosi and that a passport be issued for Y.  The orders pursued by the Mother are supported by the Independent Children's Lawyer (the ICL). 

3. Although the proceedings are undefended, the onus is on the Mother to establish the factual matters in support of these orders as being in Y’s best interests.  To do so the Court had before it three family reports prepared for this matter, along with affidavit material from the Mother, her mother and father and her psychologist.  These set out the general history of Y's care.  The Mother has always been Y's primary carer. 

4. The parties separated in May 2016.  Since that time Y's time with the Father has varied between formally supervised time to non-formal supervision but structured time, until August 2019 when, despite orders providing for Y to spend time with her Father, the time ceased.  The reasons for that time ceasing are not apparent to me.

5. Since May 2016 Y has lived in a household with her Mother and her mother's parents.  Each provided significant care for Y. 

6. In determining the orders, Y's best interests are the paramount consideration and they are to be determined on the consideration of the matters set out at s 60CC of the Family Law Act.  Not every consideration is relevant in every case.  Of those that are relevant in a case, often a case is determined on a smaller subset of the considerations because of their prominence in a case.  That is the situation here and those that are identified as prominent will be discussed below. 

7. The first is the first primary consideration which focuses upon the benefits of meaningful relationship with the child's parents.  In considering this matter there is no starting point of an assumption that there are benefits.  The benefits fall to be determined on a case-by-case basis as to what particular benefits there may be for a particular child in a particular relationship because of meaningful relationship.  It is apparent, particularly from the last family report as well as the Mother’s other material that Y derives great benefit from her Mother as her long-term primary carer and as her closest relationship. 

8. The same is not apparent with Y's Father.  Y has not spent time with him since August 2019, that is a year ago, and before then there was limited time and so it is unclear what the nature of their relationship is.  Further the evidence established that by virtue of Y having a relationship with her Father Y has, in the past, been exposed to family violence both against Y and against the Mother.  The Mother describes two incidents in relation to Y directly, being an incident where the Father shook Y, when she was a newborn, and a further incident where he took Y into the bathroom and threatened to electrocute Y when the Mother threatened to end her relationship with the Father.  In addition, the Mother describes the relationship with the Father prior to and following Y's birth that was at times physically violent, was characterised by high levels of control over who the Mother spent time with, over her property, her finances, over her conduct, over her maintenance of relationships with family and friends and characterised by threats to the Mother and threats about Y.  Further, the Mother and Y were exposed to serious controlling aggression on the part of the Father. 

9. In this context, despite the Family Report pointing to potentially having ongoing supervised time as providing some benefit to Y, I am not satisfied that Y would receive, on balance, a significant benefit from meaningful relationship with her Father.  Perhaps there would be some benefits which have not been established.  But in total, given the history of the matter, it cannot be anticipated that there would be a net benefit for Y. 

10. Additionally, a spectre of unacceptable risk of sexual abuse was raised.  Accepting what the Mother says that Y has said and her parents’ reports of what Y has said, there are indications that Y may have been the subject of sexual abuse whilst in the care of the Father.  At least Y has experienced a traumatic event or events while in the care of the Father and his family, being events with sexualised overtones.  The description of those do not allow findings on the balance of probabilities of particular incidents occurring, but raise for consideration unacceptable risk as described in the seminal High Court case of M & M and the line of authority that follows it.[1]  Y's description as reported is sufficient to conclude that there is unacceptable risk of harm to Y in the Father's care. 

    [1]M & M (1988) 166 CLR 69

11. Again, this means I cannot be satisfied that there are benefits of meaningful relationship with the Father.  Further, these are relevant to the second of the two primary considerations which concerns the need to protect a child from harm caused by abuse, neglect or family violence.  The matters identified above both regarding exposure to family violence and in relation to the traumatic events point to the need to protect Y from her Father. 

12. As well as the primary considerations a number of the additional considerations also arise.  Although it might be argued that Y has expressed views against spending time with her Father it was sensibly observed by the Mother that at Y's age, her views do not carry significant weight.  They may, however, be somewhat indicative of the nature of relationship between Y and her Father. What is of the greatest importance is the nature of Y’s relationships with and the capacity of her parents. 

13. Y is part of a household with her Mother as her long-term primary carer.  Her Mother's capacity to care for Y is enhanced by the care provided by her parents for herself and for Y.  These are Y's key relationships for her care, welfare and development.  There is no such relationship between Y and her Father.

14. In terms of capacity the matters identified above point to the Father lacking in capacity.  The Mother's capacity, it may be observed, has been compromised in the past.  She engaged in illicit drug abuse and what were described as lifestyle choices that were poor in terms not only of drug abuse, but also in the relationships and friendships she pursued, at times leaving her parents to pick up the pieces.  This may be what was referred to by her psychologist as reckless behaviour.  However, that is not the current case.

15. A longitudinal assessment of the various family reports shows a marked improvement in the Mother's parenting capacity.  Particularly in the differences between the earlier and later descriptions of the Mother with Y by the family report writers.  Importantly, the Mother’s psychologist’s evidence shows that not only does the Mother now have the benefit of a diagnosis of Post-Traumatic Stress Disorder, ADHD and autism spectrum disorder, but she has the assistance of a psychiatrist and appropriate medication.  Equipped with a better understanding through diagnosis, acceptance of appropriate medication and professional support and treatment, the Mother has blossomed personally and in her parenting capacity. 

16. In relation to participation for Y it may be observed that the Father has been deficient in decision-making in relation to Y's medical well-being and is not spending time with her.  He did not take her health issues seriously enough.  He has now not spent time with her for in excess of a year. 

17. In terms of consideration of change to Y it could be expected that a change to Y's current arrangements would be deleterious.  It would be practically difficult because the stress involved to enforce the cooperation of the Mother with Y spending time with the Father would constitute a heavy and stressful burden on the Mother which, as observed by her psychologist, may impact adversely her parenting capacity. 

18. The issue of family violence is a matter of great importance in this case and has already been dealt with. 

19. These matters collectively point to the orders sought by the Mother with some modification in relation to the name change order.  In considering these orders the presumption as to equally shared parental responsibility is inapplicable.  Sole parental responsibility with the Mother is in Y's best interests as the Mother has always been the primary carer and has shown herself capable to make the long-term decisions for medical treatment for Y while the Father has disengaged.  As noted above, cooperation between the parents would be exceedingly burdensome and not productive of good decisions for Y. 

20. Y should live with the Mother and in the context of the family violence and risk issues, and in the absence of benefit of meaningful relationship with the Father, should spend no time with nor communicate with him.  Further, if the Mother has sole parental responsibility she is well-placed to determine the issues of overseas travel and should not be hampered in relation to the issue of a passport. 

21. Lastly, and as an aspect of sole parental responsibility and in recognition that Y is well settled with her Mother and maternal grandparents as her family and as who she will take identity from, the Mother will be specifically authorised to make a decision regarding the change of Y’s surname to Caprosi. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 August 2020

Associate:     

Date:  28 August 2020