Carvallo & Tusek
[2023] FedCFamC2F 1043
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carvallo & Tusek [2023] FedCFamC2F 1043
File number(s): PAC 1540 of 2021 Judgment of: JUDGE STREET Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – PARENTING - undefended – no time Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: A & Z [2006] FamCA 179
Ashworth & Ashworth [2023] FedCFamC2F 617
Blinko & Blinko [2015] FamCAFC 146
Brown & Brown [2004] FamCA 1067
M v M (1988) 82 ALR 577
Marvel no. 2 (2010) FamCAFC 101
SS & AH [2010] FamCAFC 13 at [100]
Stott & Holgar & Anor [2017] FamCAFC 152
Tate & Tate [2000] FamCA 1040Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 22 May 2023 Place: Sydney Applicant: No appearance Counsel for the Respondent: Ms D Kaiti Solicitor for the Respondent: Solve Legal Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 1540 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARVALLO
Applicant
AND: MS TUSEK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
22 MAY 2022
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The matter proceed as an undefended hearing.
2.That the respondent mother have sole parental responsibility for the children X (born in 2012), Y (born in 2014), and Z (born in 2016).
3.The children live with the respondent mother.
4.The children spend no time with the applicant father.
5.The children X (born in 2012), Y (born in 2014), and Z (born in 2016) have their names removed from the airport watch-list.
6.The Court reserves written reasons.
7.Upon delivery of the Courts written reasons, the Independent Children’s Lawyer be discharged from the proceedings.
8.The applicant father pay the Independent Children’s Lawyer’s costs in the amount of $4,400, unless otherwise entitled to have the same waived.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 25 March 2021, and on 12 December, this Court made orders fixing the matter for a parenting hearing today. The applicant father was present at the time that order was made, and the Court’s orders also required steps to be taken by the applicant to a file a consolidated trial affidavit and also a case outline. No such documents consistent with the Court’s orders have been provided, nor has the respondent appeared. The Court finds that there has been default as defined by rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), enlivening the Court’s powers under rule 10.27(2)(b) to make orders in default.
The Court has also taken into account that the failure to attend and comply with the Court’s orders also gives rise to the potential to the Court to determine that the matter should proceed as an undefended hearing pursuant to rule 1.33(2)(c) of the Family Court Rules. The Court has taken into account the principles in Tate & Tate [2000] FamCA 1040 and also Brown & Brown [2004] FamCA 1067 at [142] and [144] in determining whether or not the matter should proceed as an undefended hearing. The Court has also taken into account the principles in s 43, s 69ZN and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court notes that at the time the Court made orders on 12 December 2022, note 3 foreshadowed that if there was a failure to appear on the next occasion, it may give rise to the matter proceeding as an undefended hearing. The Court is satisfied that the applicant was on notice of the prospect of the matter being treated as an undefended hearing as a result of the orders made on 12 December 2022.
The Court has taken into account the issues identified on the material identified in the case outlines of the ICL and the respondent and, in particular, the family report, and is of the view that it accords with the interests of the administration of justice to make an order that the matter proceed as an undefended hearing. The Court is also satisfied that it is in the best interests of the three children, X born in 2012, Y born in 2014 and Z born in 2016, for the Court to order that the matter proceed as an undefended hearing.
It is for these reasons that the Court made an order that the matter proceed as an undefended hearing, taking into account the material identified in the case outlines filed by the ICL and the respondent. The Court was also satisfied that this was a proper matter in respect of which it is in the best interests of the children for the Court to pronounce orders and publish written reasons on a later occasion. The Court also notes that the Court endeavoured unsuccessfully to contact the applicant father on the only two mobile telephone numbers that appeared on the Court record, which the Court notes were the same numbers that the ICL also unsuccessfully endeavoured to contact the applicant on.
EVIDENCE
The Court admitted into evidence the respondent’s affidavit dated 25 May 2022 and marked the notice of risk as exhibit A, the family report dated 5 July 2022 as exhibit B and the child inclusive memorandum as exhibit C. The Court notes that in proceeding as an undefended hearing, the Court must decide the matter, decide on the evidence that it is appropriate to grant relief; see A & Z [2006] FamCA 179 at 66. The Court must also take into account whether the respondent is on notice of the orders being sought. In the present case, there was a response filed by the respondent whilst the applicant was still in proceedings putting the respondent on notice in respect of the substance of the orders being sought in relation to the children.
The Court also notes that the applicant was aware of today’s hearing date and had been served with the ICLs case outline as well as the respondent’s case outline. The Court is satisfied that the respondent has been afforded procedural fairness in relation to the matter proceeding as an undefended hearing, being on notice of the same by reason of the note made by the Court on 12 December 2022 as well as the content of the response, the family report and the case outlines.
In that regard, the family report relevantly recommended that the children live with the mother, that the mother have sole parental responsibility and that there be an order for no time by the children with the applicant. Accordingly, the Court was satisfied it was appropriate to proceed as an undefended hearing.
CHRONOLOGY
Date Event 1982 Applicant father born 1982 Respondent mother born 2009 Applicant father attends a rehabilitation program for 9 months. 2010 The parties marry 2012 X is born 2014 Y is born Early 2015 12 months final AVO for protections of respondent Mother and children (expired 2016) 2016 Z is born
Applicant father arrested and incarcerated (released 2016)
Early 2016 Applicant father contacts respondent mother demanding to see the children
Police extend AVO until 20229 April 2018 The parties separate 2019 Applicant father convicted of domestic violence offences– sentenced to a term of imprisonment 27 July 2022 Interim Hearing – orders made by Judge Street for the children to live with the respondent mother and spend no time with the applicant father. SUMMARY OF THE RESPONDENT’S AFFIDAVIT
It was asserted that the respondent mother, born in 1982, had met the applicant father in 2010 and were married in 2011. The parties commence cohabitation on the same date of their marriage and separated in July 2018 but were not divorced at the time of making their parenting applications to the Court. The parties share three children together. The respondent mother asserted that she has not worked since 2004 due to a motor vehicle injury to which she received a compensation payment in 2012. Her injury has resulted in prolonged pain, inhibiting her ability to work.
The respondent mother asserted that she met the applicant father at B Church in Suburb C and they commenced a relationship soon thereafter. The respondent mother asserted that she is from a strict religious background and was encouraged to meet someone from the Church that would share the same beliefs. At the commencement of the relationship, the respondent mother would drive the applicant father to various locations as he did not have a car at the commencement of their relationship.
The respondent mother asserted that at the time, the Church had a rehabilitation facility called D Centre and did not know what the facility was. It was alleged that the applicant father made the respondent mother aware of the facility and she did not press the applicant father for more information. It was alleged that only after the respondent mother fell pregnant, that the applicant father disclosed that he was attending to program to assist with his illicit drug addiction.
The respondent mother asserts that towards the end of 2010, the applicant father started to display more controlling behaviour towards her, telling the respondent mother where she could go and what she could do. It was asserted that this controlling behaviour by the applicant father appeared in various other aspects of her life, including the respondent mother not being able to express her emotions or opinions to the applicant father.
The respondent mother asserted that In 2004, she commenced a course at TAFE on a part time basis and continued her studies whilst she commenced a relationship with the applicant father. It was asserted that due to the stress of the relationship during 2011 and falling pregnant, the respondent mother failed a semester and did not complete her studies. The respondent mother claimed that she is currently receiving parenting payment and family tax benefits.
It was asserted by the respondent mother that at the time of the parties’ marriage, neither party had a job or savings. The respondent mother asserted that she paid for the entirety of the wedding by taking money from her superannuation and borrowing money from her brother. It was alleged that on their wedding night, they were gifted approximately $3,000 from the guests. It was alleged that during their wedding night, the applicant father took the money gifted and did not return to the hotel room until 6am stating that he had spent all the money.
The parties moved in with the respondent mother’s parents in Suburb E NSW the day after they got married.
The respondent mother asserted that after she had fallen pregnant with X, the applicant father’s demeanour changed, asserting that he would act irrationally and say concerning things, claiming that he would kill himself if they didn’t have this baby. Once X was born, the respondent mother asserted that the applicant father spent little, to no time with her or the child alleging that he would only come when he needed money or to use the car. It was asserted that the respondent mother was the primary carer of X, tending to all his needs, such as bathing, feeding, dressing the child and playing with him. It was also asserted that the respondent mother also contributed to the household chores such as cooking and cleaning and her parents also provided some level of financial contribution towards X’s needs.
The respondent mother asserted that 12 months after X’s birth, the applicant father and the maternal grandmother had a negative exchange resulting in the applicant father demanding that the parties and X leave the maternal grandparent’s home. This resulted in the parties being homeless for two weeks and living in their car.
During 2012, the parties obtained a rental property for $220 a week. The applicant father found a full time job two weeks after the parties moved into the rental property. The respondent mother asserted that she did not know what the applicant father earnt and was received funds from Centrelink at the time to meet the expenses of the home, inclusive of rent and groceries.
It was alleged that the applicant father was rarely home during their time at the Suburb E rental. During late 2012, the applicant father did not return for three nights, leaving the respondent mother in a position where she was unable to purchase food for her and the child. The respondent mother moved back in with her parents and stayed there until late 2012. It was asserted by the respondent mother that during that evening in late 2012, she was unaware of where the applicant father was and called the police. She was told that he had been arrested and incarcerated. The respondent mother asserted that in late 2012, she received a call from the applicant father from jail requesting that she be his support person in Court. In late 2012, the respondent mother attended Suburb F Local Court where she provided $1,000 for the applicant father’s bail and he attended a rehabilitation centre in City G for several months. It was alleged that the applicant father remained the in rehabilitation centre for a period of months and was discharged in 2013. Following his discharge, the applicant father moved back in with the respondent mother and X. The respondent mother asserted that the applicant father’s maintained his controlling behaviour towards her after he moved back in. The respondent mother fell pregnant with their second child and gave birth to their child in 2014.
The respondent mother asserted that the applicant father would not allow for the maternal grandparents to visit, but would allow for the paternal grandparents to visit. It was asserted by the respondent mother that if she would ask or argue about her parents visiting their home, the applicant father would become aggressive and physically abuse her. The respondent mother asserted that she went to the Police and made a statement about the applicant father. It was encouraged by the police to serve an AVO on the applicant father, however the respondent mother was too scared to follow through. It was asserted by the respondent mother that at the time she was unaware that the police had served an AVO on the applicant father. It was asserted that the applicant father obtained employment during 2014.
The respondent mother asserted that following an incident in early 2015, the police placed a 12-month AVO on the applicant father or the protection of the respondent mother and the children. It was asserted that the applicant father would continuously breach the AVO orders however, the respondent mother was too afraid to report his breaches to the police. The respondent mother asserted that she fell pregnant with Z in 2015 and was struggling to meet the financial obligations for the family. It was alleged that when the respondent mother asked the applicant father for money to meet these expenses, he reacted in an aggressive manner towards the mother.
It was alleged that in early 2016, the parties’ neighbours called the police resulting in the applicant father being arrested. It was asserted by the respondent mother that the applicant father spent a period of months in jail and was released in 2016. The respondent mother asserted that the stress of the applicant father being arrested in 2016 caused for her to go into labour and she later gave birth to the parties’ third child, Z, without the aid of the applicant father. The respondent mother did not have the help of the applicant father to care for the three children whilst he was incarcerated, resulting in her and the children moving back in with the maternal grandparents.
The respondent mother asserted that in early 2017, she purchased a property located at H Street, Suburb J. It was alleged that 6 weeks after the settlement period, the applicant father approached the respondent mother’s aunt and uncle for marriage counselling. It was asserted that the parties attended marriage counselling and the applicant father asked the respondent mother for another chance in the relationship. The applicant father moved into the Suburb J property following the settlement period. It was alleged that three weeks after the applicant father moved in, he began to demonstrate negative and abusive behaviour towards the respondent mother, specifically demanding money for him to spend on gambling. It was asserted by the respondent mother that this negative behaviour continued for the course of a year.
The respondent mother asserted that in early 2018, she called the police due to an incident of physical violence with the applicant father. He was not incarcerated and returned to the Suburb J property that evening.
In respect of final separation, the respondent mother asserted that final separation between the parties occurred during July 2018. It was asserted that the respondent mother telephoned 000 following another incident with the father to which he was arrested and incarcerated. The respondent mother and the children have not seen the applicant father since July 2018.
Following separation of the parties, the respondent mother has spent her own time and money to renovate the Suburb J property. It was asserted that she is the only person paying for the renovation.
In respect of Child Support, the respondent mother applied for child support in 2015, which resulted in a negative reaction from the applicant father. It is asserted by the respondent mother that she has never received a child support payment from the applicant father.
SUMMARY OF THE FAMILY REPORT
The Family Report, released 5 July 2022, involved the interviewing of the applicant father on 3 May 2023 via telephone, the respondent mother on 3 May 2023 via telephone, and the three children on 9 May 2022 in person at the Parramatta registry.
In respect of the current arrangements, it was reported that the applicant father lives alone in Suburb K, works on a temporary basis with his hours mainly ranging from 11pm to 7am. The applicant father reported that he did not currently have a driver’s license.
It was reported that the respondent mother lives with the children and did not wish to disclose her address due to fears surrounding family violence perpetrated by the applicant father. The respondent mother reported that she is currently in a new relationship however, her partner does not live with her or the children. The respondent mother does not currently have paid employment and has an unrestricted driver’s license.
Both parties reported that the children have not seen the applicant father for four years and that there are not current orders providing that the children spend time with the applicant father.
In respect of background, both parties reported that there is a history of ADVO’s in the relationship. Specifically, ADVO’s made against the applicant father for the protections of the respondent mother and the children. The applicant father reported that only two ADVO’s have been made against him, however, the respondent mother reported multiple had been made against him. It was reported by the respondent mother that she had been approached by the Department of Communities and Justice (DCJ) that should she continue the relationship with the applicant father, then the children were at risk of being taken away from their parent’s care.
Proposals of the Parties
The applicant father reported that in his application for final order, he sought for the children to spend each alternate weekend and half of the holiday periods with him. He also reported that he is seeking shared parental responsibility of the children but the children are to live with the respondent mother. On 3 May 2022, the applicant father reported that he is still seeking shared parental responsibility of the children, however, now seeks for the children to spending supervised time with him once a week at his home.
The respondent mother reported that in her initial response for final orders she sought for the children to spend supervised time with the applicant father in accordance with their wishes. However on 3 May 2022, the respondent mother seeks that she is have sole parental responsibility of the children, they live with the respondent mother, and that they have no time with the applicant father.
Risk Factors
The family report writer identified various risk factors present in the matter that the Court is to take into account when making parenting orders for the parties.
The parties report mutual allegations of family violence, specifically relating to verbal abuse and controlling behaviours by the other parent. The applicant father reported that the respondent mother perpetrated family violence by pushing him, but does not go into further detail. The respondent mother reported that the applicant father perpetrated physical violence against her specifically by assault her body whilst she was pregnant.
The applicant father reported that he is not concerned about the respondent mother’s parenting and claimed that prior to separation, the parties co-parented the children. The respondent mother reported that the parties have never co-parented and that during the relationship of the parties, she was the sole caregiver of the children.
Applicant Father’s Interview
It was reported that the applicant father is currently 40 years of age and has not seen the children in four years. The applicant father reported that prior to separation, the parties shared the parenting responsibilities of the children and he played an active role in their lives, engaging in various activities with them.
The applicant father reported a 10 year history of illicit drug use, claiming that his last time using illicit drugs was 5-6 years ago. He reported that he had voluntarily admitted himself into the drug and alcohol rehabilitation program, L Centre in 2018 to which he was admitted for 12 months. The applicant father disclosed that he had purchased illicit drugs a year ago with the intention of using the drug, however was arrested by the police for possession, for which he received either a good behaviour bond or a fine. It was reported by the applicant father that his illicit drugs use was a form of coping with traumatic events and stressors in his life. He reported that his drug use never affected the children or the family because he would use illicit drugs outside the family home. The family report writer stated in the report that the applicant father’s recollection of his drug use is inconsistent with his written affidavit filed 25 March 2021.
The applicant father reported a history of severe episodic depression that is associated with the loss of his children and previous family life with his most recent episode of depression occurring during late 2021 to early 2022. It was reported that this depression episode resulting in his being unable to work and therefore lost his employment. The applicant father stated that he does not believe that this depression will affect his parenting capacity, claiming that this depression would disappear if he was able to spend time with the children. It was reported that the applicant father does not have a current mental health diagnosis and does not take medication for mental health. The applicant father reported that he currently attends a mood management course at L Centre and has never had any form of mental health intervention but tries to manage his mental health by not thinking about or blocking out past events.
The applicant father alleged that there was a mutual perpetration of family violence. It was reported by the applicant father that the respondent mother had been verbally and physically abusive towards him during the course of the relationship. It was alleged by the applicant father that the respondent mother demonstrated controlling behaviour during the relationship, specifically was in control of the family’s finances and refused to give him money for simple things. It was alleged that the respondent mother would monitor the applicant father’s movements and placed a vehicle tracker on his car. It was reported that the parties have argued in front of the children, and it was alleged that the respondent mother would undermine the applicant father in front of the children, consistently making him look like the “bad guy”.
The applicant father reported that the respondent mother has made false allegations of family violence against him and has been arrested by the police for family violence on three separate occasions. It was reported that the applicant father accepted these charges and took responsibility for his part in the family violence but did not make allegations against the respondent mother for fear of the DCJ getting involved. It was reported that only two ADVO’s have been taken out against the applicant father, with the second one being a result of a breach of the first ADVO. The family report writer stated that the applicant father was unable to provide a timeline for when the ADVO’s or charged had been made.
The family report writer requested that the applicant father recount an event to which he had perpetrated family violence. The applicant father reported an incident that occurred shortly prior to separation where the police arrived due to a noise complaint. It was reported that the respondent mother had falsely made herself out to be the victim of family violence when the police arrived and refused to speak to the applicant father. It was reported by the applicant father that he had then thrown his shirt at the respondent mother and as a response, the police charged him with family violence. The applicant father reported that the police unnecessarily turned it into a hostile situation.
The applicant father alleged that the respondent mother has told the Court has part of the parenting proceedings that she fears for her life, however he does not believe this and expects that the respondent mother is to take accountability for her behaviour during the relationship.
Respondent Mother’s Interview
The respondent mother reported that she is currently 39 years of age and that her and the applicant father have never co-parented the children, nor does she believe that the applicant father is interested in spending time with the children. The respondent mother alleged that the applicant father has initiated these proceedings in order to claim money from the asset pool since learning that she has sole the matrimonial home. It was reported that the children have very little to no memories of their father and that all children have a generalised fear of men due to their witnessing of family violence.
It was reported that the applicant father used illicit drugs throughout the course of the relationship, alleged that the applicant father required use of the drug every three days. The respondent mother reported that if the applicant father did not have the money to purchase illicit drugs, he would become irrational and would become aggressive towards the respondent mother until she gave up and would provide him with money. The respondent mother reported that the applicant father was spending hundreds of dollars every three days on drugs.
It was reported by the respondent mother that she nor her new partner have ever used drugs but occasionally consumes alcohol on festive occasions. The respondent mother reported that she nor her new partner suffer from any mental health conditions, do not take medication and her concerns surrounding the applicant father’s mental health are in respect to his behavioural regulation, which she alleges is due to his drug use.
The respondent mother reported being petrified of the applicant father and referred to the current ADVO’s in place for her and the children’s protection. The respondent mother disclosed that the current ADVO is a result of the applicant father’s breach of the former ADVO. It was reported that the applicant father breached his former ADVO by making multiple harassing calls to the respondent mother and sending multiple text messages depicting her as evil. The respondent mother reported that she is afraid that is the applicant father gains access to the children, that he would use them to manipulate the mother and that violent behaviours could escalate.
It was reported by the respondent mother that the applicant father displayed controlling behaviour throughout their relationship, not allowing her to carry a phone or a key card. It was alleged that the applicant father would not allow the respondent mother to speak to anyone unless the applicant father was listening on the telephone. The respondent mother reported feeling like a prisoner during her relationship with the applicant father.
The respondent mother reported that she had been physically assaulted by the applicant father during her pregnancy, to which she was punched in the eye and stomach by the applicant father. It was reported that the applicant father would often throw things from around the home at the respondent mother.
The respondent mother reported that she is concerned about the impact on the children should they spend time with the applicant father. It was reported that the respondent mother is concerned that the applicant father will teach the sons to disrespect women and that he may prostitute the daughter to obtain funds for drugs. The respondent mother reported that whilst the applicant father says that he would not hurt the children, they have seen the applicant father perpetrate violence towards the respondent mother, and on occasion have been hurt by the applicant father. The respondent mother reported that she does not wish for the children to relive their previous traumatic experiences.
The family report writer based off the interviews with the parties concluded that there is no scope for the parties to be able to communicate effectively and if the allegation from the respondent mother are found to have substance, then it would not be safe for communication between the parties to occur.
Interviews with the Children
The family report writer reported that X presented as a talkative, happy and engaging child. X reported that he likes to spend time with his siblings and always tries to include his sister in activities with himself and his brother.
X reported some struggles of settling into a new school due to his family moving, however noted that he has been able to make new friends that he thinks are smart.
It was reported by X that he has always lived with his mother and that this mother is nice and wanted the Judge to know that he really likes his mother and wants to continue living with her. X reported that his is was to spend time with his father, he would see his father fighting all the time, whereas he feels “safe and calm” when he is with his mother. It was reported by X that he remembers seeing his parents fight a lot when he was six years old, often relating to money. X reported that during these fights, he would often hide under the blankets because he did not want to see his parents fighting.
It was reported that the respondent mother had told X about the applicant father’s drug use and gambling addiction. X reported that the last time he saw his father, the children were given gifts to try and make up for past behaviours however, it was alleged that these gifts were stolen and X reported that during this occasion the applicant father asked for money from the respondent mother.
The family report writer reported that Y presented as an articulate, happy little girl. Y reported that she liked the way that the respondent mother cared for her and the siblings and that the respondent mother helps the family.
Y reported that she enjoys cooking and playing games with her mother and her brothers. She also reported that she is happy at school and enjoys playing with her friends who take care of her when she is feeling down.
Y reported that she wishes that the applicant father would be better and not take money or hurt the respondent mother. It was reported that Y remembered the applicant father and that she did not wish to see him. Y reported that she was afraid that the applicant father might hurt her and that she wanted the Judge to know that she does not want to see the applicant father.
The family report writer reported that Z presented as a cheerful, animated and confident little boy. Z reported that he had never seen his father and that he was worried about seeing his father because his father might hurt his mother. It was reported that whilst Z was saying this, he raised a fingers horizontally across his throat to represent killing.
Z reported that he enjoys that his mother plays with him and his siblings and that she takes care of him and his siblings by showing them what to do and what not to do. It was reported that Z often plays with his siblings and has many friends at school. His favourite thing at school is to play in the adventure playground.
The family report writer from the interview with the children concluded that there is no current relationship between the children and the applicant father. Due to this and the alleged family violence, it was deemed inappropriate to conduct parent-child observations.
Evaluation
The family report writer concluded that the descriptions of the family relationship presented by the children was similar to that of the mothers. The children all spoke positively about the respondent mother and all expressed that they did not wish to spend time with the father. It was noted by the family report writer that the information provided by the children in respect of their memories of the applicant father derived off information that the respondent mother had given them. However X did appear to have his own independent memories of the applicant father, which indicated family violence.
It was evaluated by the report writer that the applicant father reported having a close relationship with the children prior to separation. If the applicant father’s recount is found to be accurate, the report writer evaluated that the children may not have been provided with the opportunity to maintain a relationship with the applicant father and the respondent mother may have been undermining the children’s relationship with the applicant father.
However, it was evaluated that is the respondent mother’s recount is found to be accurate, then the respondent mother’s behaviour can been viewed as protective of the children and the applicant father’s behaviour is deemed to be the reasons as to why they do not see him.
The family report writer noted that the applicant father reported that if he were to spend time with the children, then his depression would go away. The family report writer evaluated that the applicant father’s illicit drug use was associated with other childhood trauma and it is possible that there are multiple issues contributing to the applicant father’s depression. Further to this, it was noted by the report writer that the unpredictability of the applicant father’s depression may also present a risk of neglect to the children. It was evaluated by the family report writer that the children are at an age where they are unlikely to be able to comprehend what depression means and may feel a sense of blame for their father’s depression, potentially leading to their own mental health problems. It was recommended that the applicant father undergo a mental health assessment that also includes a focus on his cognitive capabilities.
It was evaluated that even though the applicant father reported that both parties mutually perpetrated family violence in the relationship, the family report writer noted that the applicant father shifted responsibility for his choice to be physically violent onto the respondent mother, demonstrating an inability to take responsibility for his actions and presenting a potential ongoing risk of future family violence by the applicant father. If the Court finds the allegations against the applicant father to have veracity, it may be traumatising for the children to spend time with the father. It was evaluated by the report writer that such trauma could disrupt the apparent current healthy sibling relationship, as it could undermine the solidarity that exists between siblings, as one of the effects of trauma is that it can cause relationships that were previously safe to feel unsafe.
The family report writer made reference to the respondent mother’s report of drug use by the applicant father. It was evaluated that there is a possible association between the applicant father’s drug use and the perpetration of family violence as drug use can exacerbate family violence.
It was also evaluated that the applicant father’s sense of his relationship with the children differs from that of the children. Therefore, should the Court make orders for the children to spend time with the applicant father, then he will have to be prepared for a gradual rebuilding of his relationship with the children. It was recommended by the family report writer that the applicant father work with a psychologist or counsellor with expertise in the area of family separation and reunification.
The family report writer also recommended that in respect of the applicant father’s depression, that should the Court makes orders for the children to spend time with the applicant father, it should occur merely for two hours a month, so that the applicant father can demonstrate his ability to spend time with the child consistently.
Recommendations
The family report writer made the following recommendations for the parties to implement and for the Court to consider:
(1)That orders are made for the children to spend no time with the applicant father;
(2)That orders are made for the children to live with the respondent mother; and
(3)That sole parental responsibility is allocated to the respondent mother.
PARENTING LAW – THE LEGAL PRINCIPLES
The Court has taken into account the legal principles set out in the matter of Ashworth & Ashworth [2023] FedCFamC2F 617 at [31] – [51], the principles in s 63, s 60B and s 69ZN and the statutory provisions and statutory pathway in Part VII of the Act.
FINDINGS AND CONCLUSIONS
The respondent sought orders similar to that of the ICL for the mother to have sole parental responsibility of the children, for the children to live with the mother, and sought an order that the children spend no time and no communication with the father. An order was raised under section 6(b) which was not pressed, and an order was sought in relation to the children’s names being removed from the airport watchlist as earlier required under an order made on 27 July 2022.
The respondent submitted that the applicant had perpetrated family violence over the entire course of the relationship, and that the applicant’s behaviour had been controlling and coercive. The respondent referred to the greater weight required to be given to the primary consideration in section 60CC(2)(b). The respondent identified alleged controlling behaviour and the impact on her going to work and in relation to persons visiting the home. The respondent also submitted that the applicant engaged in financially controlling behaviour and used her money to support his drug and gambling addiction, and identified the particular evidence of conversations in the respondent’s affidavit in that regard.
The respondent also referred to physical violence and an incident involving strangling, suffocating, kicking and pinning her down. The respondent referred to waking up to being choked, and that she had a black eye. The incident also involved, according to the respondent’s evidence, the applicant kicking her on her thigh causing her to buckle and fall down. The respondent also referred to verbal abuse, the calling of names and intimidation, and gave examples of words used by the applicant.
The respondent asserted her attempts to obtain assistance from the applicant’s family were ignored. The respondent also referred to the disclosures made to the family report writer and recorded therein in relation to family violence. Reference is also made to one of the children, Y, expressing that she did not want to see the applicant “because he might hurt me.” Both Y and X also conveyed to the family report writer they did not wish to see the applicant. The family report writer – at least, the respondent noted that the family report writer indicated memories by X, the child X, of his father’s conflict and family violence.
The respondent also referred to the applicant’s explanation about his use of illicit drugs and childhood trauma and depression. Attention was also drawn to the recommendation in the family report that the applicant undergo medical assessment, which has not been undertaken. The respondent pointed out that no medical health assessment has been provided in relation to the applicant, and, on the evidence, his health remains unmanaged and undiagnosed and is of extreme concern in relation to the children, and made reference to an attempted self-harm incident by the respondent.
The respondent referred to the applicant’s drug use and the positive hair follicle test in November 2021, and the failure to comply with random drug urinalysis testing. It was submitted that the Court could not find that the father would, in the future, be abstinent from drug abuse. It was submitted that the Court should find that the applicant committed significant family violence on the mother. The respondent referred to the family arguments and the apparent lack of insight by the applicant. And on the material, the applicant has little interest in pursuing a relationship with his children. And this is consistent with his failure to appear at the final hearing or to comply with the Court’s orders. The respondent submitted that, on the totality of evidence, the children are in an unacceptable risk of harm should they spend time with the father. It was submitted that X had suffered considerable distress and that he had been so frightened by his father in late 2022 that he only stopped wetting his bed after the father left the family home.
It was submitted that the children remain at risk from the father’s verbal and physical abuse and that contact would be a negative disruption on their life, exposing the mother to the risk of further anxiety and stress. The respondent referred to the father’s failure to take responsibility for his drug addiction and family violence and in relation to his mental health, as well as his lack of insight, as supporting the finding of an unacceptable risk should the children spend time with the applicant. Reference was also made, on behalf of the applicant, to the recommendations in the family report, that if the family violence was found to be accurate, the children should not spend time with the father. The respondent also referred to several ADVOs and the respondent serving terms of imprisonment.
The respondent submitted that, in relation to the views of the children, both Y and X expressed their fears towards their father to the family report writer and that those views should be given high probative weight. It was submitted, in relation to the relationship with each parent, that the mother has a strong and loving relationship with the children. The father appears to lack insight into how the children’s exposure to family violence contributed to the breakdown of their relationship with him and their perception of him. It was submitted that the mother had been involved fully with the children, as their primary carer, and that she remained steadfast and protective, whereas it was also submitted the mother supports the children and the father has done very little to support their emotional wellbeing.
It was submitted that the mother had suffered mental harm due to being subjected to years of abuse. And there is no evidence to support any changes implemented by the applicant or in relation to his approach to the children. It was submitted that the mother is child-focused and takes care of all the children’s needs and that the children are in good health. It was submitted that the mother has demonstrated insight in relation to the children’s needs and the same cannot be said for the applicant. It was submitted that the applicant had engaged in family violence, as well as bouts of verbal and physical abuse, on the respondent. It was identified that, in early 2017, the father was imprisoned, following an assault on the mother.
In early 2017, the father was imprisoned, following domestic violence charges. In 2018, the father was imprisoned, again, for a period of months and, again in 2018 for domestic violence charges and contravening an ADVO. It was also identified that the father had contravened ADVOs in 2015 and was placed on a bond in 2016 and served a time of imprisonment in 2018 and was sentenced to several months’ imprisonment. The ICL supported orders that the mother have sole parental responsibility, live with the mother and spend no time with the father. The Court finds that the chronology identifies family violence that has occurred in relation to the mother. The Court finds the children have not spent time with the father since the date of separation in 2018.
The Court finds that the applicant father has, by his actions and failure to appear and comply with the Court's order, conveyed an intention not to partake in the proceedings. The Court also finds that the failure by the father to file any material in relation to his illicit drug use supports the inference that he is not free of the continuing influence of drugs and has not disengaged form the drug milieu and has not acquired any insight in respect of his conduct of family violence to the mother or any insight in relation to its adverse impact upon the children. The Court finds that the applicant’s illicit drug abuse poses an unacceptable risk to the children. The nature of that risk is physical and psychological harm to the mother. The magnitude of that risk, given the history of the matter, is high.
The Court also finds that the nature of the risk is one of psychological harm to the children and that the magnitude of that risk is high. The Court finds the mother has been the primary carer for the children and that there is no concern over the mother’s ability to care for the physical and emotional needs of the children. The Court has taken into account the primary considerations and given greater weight to the need to protect the children given the family violence that the Court finds the father has perpetrated against the mother and the history of the ADVOs. The Court finds that greater weight should be placed on the need to protect the children than making orders for a meaningful relationship for the father. The Court is not satisfied that spending time with the children, given the history, would give rise to a healthy, worthwhile or advantageous relationship between the children and the father.
The Court accepts that the father engaged in physical violence, including assaulting the mother while she was pregnant. The Court accepts the respondent’s evidence in relation to the physical violence referred to above. Whilst the Court accepts the applicant may have a history of depression and drug use, there is no proper evidence that his drug addictions have changed. The Court also accepts the respondent’s evidence that the drug use caused the applicant to be extremely physically violent.
The Court has taken into account the relevant test in M v M (1988) 82 ALR 577 as to unacceptable risk. The Court has also taken into account that the assessment of the unacceptable risk must be evaluated against the prospects of the risk actually occurring and against protective measures that may ameliorate or minimise the risk: Blinko & Blinko [2015] FamCAFC 146; Stott & Holgar & Anor [2017] FamCAFC 152.
In the present case the Court is not satisfied that this is a matter where orders could be made to ameliorate or minimise the unacceptable risk of harm to the mother and the children. The Court accepts the ICLs submission and finds in the present case that orders for the mother to have sole parental responsibility, for the children to live mother and spend no time with the father strikes the appropriate balance so as to prevent exposure of the children to an unacceptable risk of physical and psychological harm.
In determining the best interests of the children the Court has also taken into account the primary and additional considerations in section 60CC and the observations of the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 cited at [74] – [84].
The Court must give priority to the second primary consideration pursuant to section 60CC(2A). The Court finds the applicant’s drug abuse and family violence pose an unacceptable risk to the children and the respondent if orders were made for spend time with the applicant. The Court finds the respondent is adequately providing for the needs of the children and has made all major decisions since the children have been in her primary care. The Court finds given the finding of family violence the presumption for equal time is rebutted. The Court finds that the recommendations of the family consultant, supported by the ICL, for no time with the father and live with the mother and the mother having sole parental responsibility are in the best interests of the children. It is for these reasons the Court made the orders pronounced on 22 May 2023 and reserved its written reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 25 August 2023
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