Che & Don (No 5)
[2023] FedCFamC1F 470
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Che & Don (No 5) [2023] FedCFamC1F 470
File number(s): CAC 600 of 2021 Judgment of: GILL J Date of judgment: 9 June 2023 Catchwords: FAMILY LAW - PARENTING PROCEEDINGS – Undefended – Parents complicit in disappearance of child – Parents pose unacceptable risk of harm to the child – Risk of further abduction – No contact with parents – Child to live with maternal grandmother – Sole parental responsibility to maternal grandmother Legislation: Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC, 65DAA, 68B and 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - r 1.33
Cases cited: Akbar & Mali and Anor [2015] FamCAFC 244
Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nellisen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Division: Division 1 First Instance Number of paragraphs: 142 Date of hearing: 5 June 2023 Place: Canberra Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Legal Aid, ACT Solicitor for the Respondents: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Ms Mahony Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers ORDERS
CAC 600 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHE
Applicant
AND: MR DON
First Respondent
MS TRACH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The child, X, born 2020, shall live with the applicant grandmother, Ms Che.
3.The applicant grandmother has sole parental responsibility for the child.
4.The child spend no time with and have no communication with the father, Mr Don.
5.The child spend no time with and have no communication with the mother, Ms Trach.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), and until 2038 when X reaches the age of eighteen, it is ordered for the personal protection of X, born 2020, and Ms Che, born 1967, that:
(a)Mr Don, born 1992, is prohibited from approaching within 100 metres of X.
(b)Mr Don is prohibited from procuring or causing any person to take the person of X.
(c)Mr Don is prohibited from causing or threatening to cause bodily harm to X.
(d)Mr Don is prohibited from harassing, molesting or stalking X.
(e)Mr Don is prohibited from attempting to identify the residential address of Ms Che or X and from attempting to identify any child care or educational facility attended by X.
(f)Ms Trach is prohibited from approaching within 100 metres of X.
(g)Ms Trach is prohibited from procuring or causing any person to take the person X.
(h)Ms Trach is prohibited from causing or threating to cause bodily harm to X.
(i)Ms Trach is prohibited from harassing, molesting or stalking X.
(j)Ms Trach is prohibited from attempting to identify the residential address of Ms Che or X and from attempting to identify any child care or educational facility attended by X.
(k)Ms Trach is prohibited from approaching within 100 metres of Ms Che unless otherwise agreed in writing between the applicant grandmother and Ms Che,
7.All extant applications are otherwise dismissed.
8.Mr Don and Ms Trach are permitted to collect any mobile telephones seized from either of them and held by the court in the City N Registry of the Division 1 of the Federal Circuit and Family Court of Australia (the Registry) following the expiration of 28 days from the date of this judgment.
9.In the event that neither Mr Don nor Ms Trach collect the mobile telephones held by the court in relation to this matter within 56 days from the date of this judgment such telephones may be otherwise disposed of by the Registry.
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
GILL J
This matter concerns parenting proceedings in relation to X, born 2020. The contesting parties are Ms Che, X’s maternal grandmother, the father, Mr Don and the mother, Ms Trach. Mr Don and Ms Trach, who are in an intact relationship, pursue orders for X to live with them, whilst Ms Che seeks orders that X continue to live with her, as he currently does pursuant to interim orders.
X’s interests are represented by an Independent Children's Lawyer (the “ICL”).
The final hearing of this matter occurs against a tempestuous background.
The central feature of this case has been the fact that X’s whereabouts were unknown to the court between mid-2021 and late 2022. This was despite orders directed to place X in the care of Ms Che, both parents being gaoled for contempt of court for defiance of orders to bring X under the care of Ms Che, and Ms Trach subsequently being gaoled a second time for contempt for failing to disclose information held by her as to X’s whereabouts.
The parents asserted that they were unaware of X’s whereabouts, describing that he had temporarily been placed in the care of a Ms L, a person that they asserted they were unable to contact. Their protestations of limited knowledge as to Ms L, and as to helplessness in respect of X’s return were disingenuous. The parents were complicit in X’s disappearance.
X ultimately came to police attention in late 2022 and was returned to Ms Che. He remains in her care, as does his sister, M who is not the subject of these proceedings.
The final hearing
Neither Mr Don nor Ms Trach filed trial material in compliance with the trial directions of 4 November 2022 that listed the trial to commence on 5 June 2023, and required Mr Don and Ms Trach to file their affidavit material by 28 April 2023.
The parents failed to appear at the final hearing.
The proceedings were conducted as undefended in respect of the parents.
The contentious scope of the hearing was as to the nature of the injunctions that would be directed to the parents for the protection of X, and whether X spending time with the mother would be at the discretion of Ms Che, or whether the prospect of such would require an initiation of fresh proceedings.
Orders sought
By a Further Amended Initiating Application filed 17 April 2023 Ms Che seeks an order that she solely hold parental responsibility for X, and that X live with her. Ms Che seeks orders that X spend no time with Mr Don, and that X (unless agreed otherwise in writing) spend only professionally supervised time with Ms Trach. Ms Che further seeks a suite of injunctions for the personal protection of herself and X, including prohibitions of the parents seeking to locate either X or Ms Che.
The ICL similarly sought orders that Ms Che hold sole parental responsibility, and that X live with her. The ICL sought a suite of injunctions directed to both Mr Don and Ms Trach that exclude the possibility of either coming into contact with X without a future order of the court discharging such orders.
The orders sought by Ms Che and the ICL are annexed to the end of this judgment.
Material relied upon
(1)Affidavit of Ms Che filed 17 April 2023.
(2)A report was prepared by a Court Children’s Expert.
(3)A report was prepared by a single expert paediatrician.
(4)Transcript of proceedings of 28 May 2021.
(5)Judgment and reasons of Judge Hughes of 28 May 2021 dealing with Mr Don and Ms Trach for contempt of court.
(6)Judgment and reasons of Justice Gill of 14 December 2021 dealing with Ms Trach for contempt of court.
(7)Transcript of proceedings of 28 July 2022.
(8)Transcript of proceedings of 26 September 2022.
BACKGROUND
The court record of the proceedings and the various orders assists in establishing the background to this matter.
Ms Che is Ms Trach’s mother.
The maternal and paternal families formed a friendship in about 2016.
Ms Trach lived with Ms Che until early 2018, when she moved to Sydney to live with Mr Don. Ms Che described that she had no warning that Ms Trach was moving out, and that Ms Trach appeared to block Ms Che’s telephone number on moving to Sydney. She and Ms Trach then had no contact until 2020, when Ms Trach was pregnant with X.
X was born in 2020. Ms Che describes that Ms Trach told her that Mr Don insisted that Ms Trach leave the hospital prior to giving birth, having attended there once contractions commenced. Ms Trach later gave birth in the home and was taken to hospital by ambulance.
Ms Che travelled to Sydney and remained there for two weeks to provide support. She then returned to City N, but travelled to Sydney on a weekly basis for the next three weeks, staying with Ms Trach and Mr Don until Mr Don refused to allow her to stay in the home any longer, Ms Che hearing, while speaking on the telephone to Ms Trach, Mr Don saying “I don’t want your fucking mum going to my apartment anymore.” Ms Trach later told Ms Che that Mr Don had taken the telephone from Ms Trach.
During a call two weeks later Ms Che heard Mr Don yell at Ms Trach “I don’t want you to talk to her.”
Ms Che describes that a few weeks after X was born she was caring for him and found a lump on his head, and suggested that he be taken to the hospital. After resistance from Mr Don, X was taken to hospital, where it was recommended that he remain overnight. Mr Don insisted that X return home, but Ms Che resisted and she and Ms Trach stayed with X at the hospital overnight. The NSW welfare authority was notified. Nothing came of the lump on the head.
Ms Che further describes that Ms Trach telephoned Ms Che in mid-2020, crying and saying that she wanted to come home (to City N). Mr Don was heard yelling in the background that he did not want Ms Che to come to the home. Ms Trach said that she would take X to City N, and Mr Don threatened that if she took X out of the house he would call the police.
Ms Che called the welfare authority who recommended that she call the police, who subsequently attended and obtained an interim apprehended violence order protecting Ms Trach from Mr Don.
Ms Che travelled to Sydney and collected Ms Trach and X from Suburb J police station and brought them to City N after the welfare agency conducted some checks.
Ms Trach described to Ms Che that Mr Don and she would argue almost every day, and that he would not permit her to have credit for her telephone, so that if Ms Trach wished to make calls it was on his telephone.
Proceedings were then commenced in the Suburb G registry by Mr Don against Ms Trach. The first return date was 9 November 2020. On 25 January 2021 orders were made appointing an ICL.
Ms Trach and X remained living in City N with Ms Che, until Ms Trach went out one day, and, unexpectedly for Ms Che, returned to Mr Don, whilst leaving X in City N in the care of Ms Che.
On 22 February 2021 Ms Trach filed a Notice of Discontinuance in respect of the Suburb G proceedings.
Soon after, members of P Region Police attended Ms Che’s home saying that they had been asked to remove X from her care. They, however, had no order to do so and did not remove him.
In the context of Ms Trach’s discontinuance, on 9 March 2021 final orders were made for X to live with the father, apparently with the support of Ms Trach. It is not apparent that the court was advised that X was at that stage living with Ms Che in City N, nor that he had been since mid-2020.
In March 2021 police again attended the home of Ms Che, in relation to a report of a disturbance. Police told Ms Che that there was an order for X to live with Mr Don. As there was no recovery order the police were unable to remove X. Ms Che observed Mr Don, Ms Trach and Ms C to be outside the house.
On 23 March 2021 Ms Che commenced proceedings in the Federal Circuit Court at City N.
In late March 2021 Ms Trach asked Ms Che to bring X to Sydney. She declined.
At about 4am the next day Ms Che received a call from NSW police asking to conduct a welfare check on X.
In April 2021 Ms Che took X and Ms Che’s mother to a general practitioner in Suburb R in P Region. Whilst there Mr Don attended, grabbed X, ran out the door yelling “you can’t take my child” and “fuck you.” Mr Don tripped and fell as he ran with X. Ms Che and her mother ran after them, Ms Che’s mother standing in front of the car Mr Don was travelling in. Mr Don hit her in the face and knocked her to the ground.
On 12 April 2021, in response to Ms Che’s application for urgent recovery orders, Judge Hughes made orders for the preparation of the matter, and restraining Mr Don and Ms Trach from changing the residence of X from an address in Suburb S. No immediate recovery order was issued pending the further hearing of the matter.
On 19 April 2021, after a further hearing, orders were made discharging the orders made in Suburb G on 9 March 2021, and for X to live with Ms Che, with X to be handed over to Ms Che at the Town E police station on 20 April 2021. These orders were further supported by a recovery order to be executed if X was not so provided. The handover order was made in these terms as Mr Don advised Judge Hughes than X had in fact been living with the paternal grandmother in Town E following the Suburb R incident.
Section 68B injunctions were also made restraining the parents from approaching X or Ms Che, and restraining Ms Che from approaching the home of the paternal grandparents.
However, X was not handed over in accordance with the orders of Judge Hughes, or at all. The recovery order was not executed as X was unable to be located.
On 29 April 2021 (and amended on 30 April 2021) a publication order was made to assist the recovery of X.
On 20 May 2021 further proceedings were conducted before Judge Hughes electronically. The parents were represented by counsel and appeared from counsel’s chambers. At that stage X had been withheld contrary to court orders for about one month. Counsel informed the court that he had advised the parents to return X in accordance with the orders, and that if they did not he would cease to act for them.
Judge Hughes enquired as to who was caring for X as the proceedings were being conducted, and was told he was being cared for by a friend or associate known as “Ms F.”
Judge Hughes then directed that Mr Don and Ms Trach cause X to be delivered to Ms Che that evening at the Suburb G police station.
Judge Hughes also issued a warrant for the arrest of Mr Don and Ms Trach as they indicated that they would not comply with the orders in relation to X.
The warrant for the parents’ arrest was executed upon them as they left their counsel’s chambers and they were taken into custody.
On 21 May 2021 Judge Hughes made orders releasing Mr Don and Ms Trach on their entering into a recognizance to attend the court on 28 May 2021, and subject to other conditions. Orders were made for X to be returned by Mr Don and Ms Trach to Ms Che at the Suburb J police station on 22 May 2021.
X was not so returned.
Ms Che was granted leave to make, and made, an oral application that Mr Don and Ms Trach be dealt with for contempt of the court. Orders were made requiring Mr Don and Ms Trach to forthwith provide information to the court that they held as to the whereabouts of X.
Orders were made for the paternal grandparents to provide such information as they held as to the whereabouts of X.
On 28 May 2021 Judge Hughes found both Mr Don and Ms Trach in contempt of the court for failing to comply with the order made on 19 April 2021 that they “each forthwith take all steps necessary to arrange for the child to be returned to the maternal grandmother at 12 noon on 20 April 2021” at the Town E police station.
Mr Don was sentenced to imprisonment for three months, subject to Mr Don purging his contempt. Similarly, Ms Trach was also found in contempt and sentenced to imprisonment for seven days, subject to purging her contempt.
Neither purged their contempt and each served their full sentences.
The substantive proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia on 28 May 2021.
On 2 June 2021 information orders were made directed to Mr Q and Ms C (the paternal grandparents), along with a subpoena directed to each to compel their attendance before the court. An order was made for telephones held by the K Correctional Centre as the property of the parents to be surrendered to the court. The paternal grandparents were subsequently questioned in court as to X’s whereabouts.
The Magistrates Court of P Region made an interim Family Violence Order for the protection of Ms Che directed to Mr Don.
On 23 June 2021, in circumstances where X’s whereabouts were still unknown to the court, orders were made for the production of recordings of conversations between Mr Don, Ms Trach and other persons whilst they were held in custody at the K Correctional Centre, with such recordings to then be provided by the Court to the relevant investigating agencies. Two telephones were obtained from the property of the parents held at the K Correctional Centre, along with a PIN provided for each telephone, and provided to the police to further the investigation into the whereabouts of X.
The following month, NSW police advised the court that they held a further mobile telephone that had been seized from Mr Don and Ms Trach at the time of their arrest. An order was made for the surrender of the telephone to the court.
On 23 July 2021, on her application, Ms Huynh (the paternal aunt) was joined as a party to the proceedings and made subject to an order to provide all information held by her as to the location of X.
On this same day Mr Don was directed to provide the PIN for the most recently produced mobile telephone seized from Ms Trach and/or Mr Don at the time of their arrest, and for the mobile telephone to be forwarded to the police for interrogation as to contacts and messages held on the telephone.
On 12 August 2021 Ms Trach filed an affidavit in which she asserted that X was currently in the care of her friend, described as X’s godmother, and that they were in a safe location unknown to Ms Trach in order to prevent the authorities from tracking Ms Trach to get to X.
On 6 September 2021 Ms Che commenced contempt proceedings against Ms Trach.
Given what was contained in Ms Trach’s affidavit of 12 August 2021, on 13 October 2021 Ms Trach was directed to provide information that she then held regarding the location of X.
On 25 October 2021 Ms Trach, through her then solicitor, wrote to the court purportedly providing information held as to the whereabouts of X. She nominated that he had been given to Ms L in mid-2021 at a store in Suburb B, along with $200 cash for expenses. The mother asserted that Ms L’s number was in telephones confiscated by the NSW police, and that she had not memorised Ms L’s number.
On 8 November 2021 the contempt proceedings were discontinued.
On 9 November 2021 Ms Trach was further charged with contempt for failing to provide information held by her as to X’s whereabouts, and the Marshal of the Court was directed to prosecute the charge.
In late 2021 the Magistrates Court of P Region made a two year Family Violence Order directed to Mr Don for the protection of Ms Che.
In late 2021 Ms Trach was found guilty of the following count of contempt:
That [Ms Trach] is in contempt of this Court in that she contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involved a flagrant challenge to the authority of the Court in that she failed to provide to the Court such information as she held about the whereabouts of the child [X] born […] 2020.
That is, Ms Trach was found to have failed to disclose information that she held as to where X was.
On 14 December 2021 a further publication order was made in the proceedings to assist in the location of X.
In early 2022 Ms Trach was sentenced to imprisonment for contempt of the court, with provision for Ms Trach to be released earlier on purging such contempt by the provision of information as to the whereabouts of X. No such purging occurred.
On 26 May 2022 Ms Huynh (the paternal aunt) was removed as a party from the proceedings following her filing of a Notice of Discontinuance.
M, X’s sister was born in 2022 whilst Ms Trach was still serving her sentence for contempt. M was removed by the local welfare agency.
In mid-2022 Ms Trach was released from custody following the completion of her sentence for contempt of the court.
X’s whereabouts were still unknown.
On 28 July 2022 both Ms Trach and Mr Don were orally examined before the court in an attempt to locate X. Part way through the examination of Mr Don an order was made referring Mr Don to the Commonwealth Director of Public Prosecutions for consideration as to whether an offence relating to the administration of justice, such as perjury, had been committed, by virtue of conflicting testimony being given in comparison with earlier testimony before the Federal Circuit Court on 21 May 2021.
In late 2022 X was left at a childcare facility in Sydney, who subsequently contacted the NSW police.
In late 2022 X was returned to Ms Che’s care by the NSW police. X was collected by Ms Che from Suburb J police station. Immediately after this Ms Che returned him to City N where they stayed several nights in a hotel on advice from the local welfare agency.
On 27 September 2022 orders were made authorising the NSW Police to take a buccal swab from X to assist in confirming his identity.
On 28 September 2022 interim orders were made granting Ms Che sole parental responsibility for X, and making orders for the personal protection of X from Mr Don and Ms Che pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”).
Ms Che describes that X appeared unsettled, crying often, appearing to be tense and nervous. Ms Che considered that, at that time, X did not recall who she was, although he appeared to become more comfortable after about four or five days. Ms Che describes that X appeared to be quickly comfortable with her ex-partner, the paternal grandfather, Mr V, who would feed, cuddle and do activities with X. Ms Che describes that when X came into her care he spoke no English, and minimal Country U language.
In October 2022 various orders were made permitting publication of aspects of the case pursuant to s 121 of the Act.
On 4 November 2022 the matter was listed for trial to commence on 5 June 2023, with accompanying trial directions for the preparation of a family report and the filing of trial material. The parties all participated in the preparation of the family report.
In early 2023 M, X’s younger sister, came into the care of Ms Che pursuant to arrangements with the local welfare agency who have the care of M.
On 16 January 2023 the report of the Court Child Expert was released.
On 9 March 2023 Dr W was appointed as a single expert to provide a paediatric assessment of X. He subsequently provided a report.
The family report
A family report by a Court Child Expert was prepared on 10 January 2023.
The report reflected polarised attitudes between the parents. Mr Don and Ms Trach made serious allegations against Ms Che and the maternal family, including that Ms Che had attempted to organise a marriage between Ms Trach at age twelve and a man twenty years her senior, and that Ms Che had encouraged a sexual relationship between Ms Trach at age fifteen and the man. Mr Don alleged also that the maternal family had both drug and other criminal involvement.
Ms Che alleged violence on the part of Mr Don, and fear of Mr Don. She “expressed a great deal of care toward” Ms Trach, describing the issue with Ms Trach as relating to Mr Don’s influence over her. Ms Trach was identified as having an intellectual disability.
Contrary to Ms Che’s description, Mr Don and Ms Trach described a mutually respectful relationship.
At the time of the report X was living with Ms Che, but had not, apparently, spent time with Ms Trach or Mr Don since he was less than one year old, in mid-2021. X was observed with Ms Che and Mr V. X was not observed with the parents as a result of the hiatus in his time with them.
The reporter observed that at his stage of development X is highly dependent upon his caregivers to provide his physical and emotional needs. Inconsistent with this need, the reporter noted a history of “highly disrupted care arrangements, including long periods of separation from his parents and grandmother,” including the period during which X’s whereabouts were undisclosed, in excess of a year.
In relation to the period of time when X’s whereabouts were undisclosed, the reporter noted that Mr Don placed the blame upon Ms Trach, and assessed it as “puzzling that [Mr Don] was not at all concerned for [X’s] safety or emotional well-being when no one was able to contact [Ms L] (the purported carer).”
The reporter observed that:
Young children of [X’s] age at the time of his disappearance rely entirely on their caregivers to meet their physical and emotional needs, and they find separations from their primary caregivers to be distressing. For [Mr Don] to display such limited concern for his child while [X] was in the care of someone he did not know well, indicates a lack of insight into [X’s] emotional needs, and possibly a lack of care about [X’s] safety. An alternate scenario is that [Mr Don] was aware of [X’s] whereabouts throughout the period he was missing, and was receiving updates about [X’s] wellbeing. In this scenario, [Mr Don] would have displayed complete disregard for the court and the law, and there would be a high risk that [Mr Don] would not follow future orders. Additionally, if [Mr Don] orchestrated [X] to be hidden for that period, he placed [X’s] physical and emotional wellbeing at risk, as [X] would likely have been restricted from accessing health care and contact with the community.
The report writer further assessed that Mr Don displayed no understanding of X’s emotional needs, and limited understanding of his developmental needs.
X was assessed as appearing both safe and settled in Ms Che’s care, without any current indication of risk of harm. X’s symptoms of distress appear to be abating in the care of Ms Che, who was assessed as recognising the need for ongoing monitoring of X’s well-being. The reporter considered that priority should be given to X’s ongoing connection with his sister M.
In contrast, in Ms Trach and Mr Don’s home the report writer considered that there would be a risk of exposure to family violence.
Whilst identifying general benefits associated with ongoing contact with biological parents, the report writer recommended that consideration be given to whether this can occur safely, identifying the need to assess the risk of future abduction of X.
The recommendations of the report writer were that X live with Ms Che, for Ms Che to hold sole parental responsibility, that Ms Che complete the Circle of Security parenting program, and, if X’s safety can be assured, that he spend professionally supervised time with his parents each two months.
The paediatric report
A report was prepared by Dr W, a paediatrician following assessment of X, and taking of relevant histories.
The provisional diagnoses given were of global developmental delay and post-traumatic stress disorder (“PTSD”). These followed an assessment of X and his history which led to impressions that X exhibits speech and language delay, cognitive delay, some delay in attainment of independent daily living skills, delay in play skills, anxiety and childhood trauma. There were “evident behaviours of hypervigilance, prominent separation anxiety and frequent night terrors or nightmares.”
A suite of further assessments was recommended, for audiology and vision, speech therapy, occupational therapy and assessment by a child psychologist, including for formal assessment as to PTSD. It was anticipated that X will require weekly intervention in a number of these areas.
The causes of the delay were unable to be definitively determined, for example as to whether they flow from an inherited genetic disorder, or from PTSD.
Principles
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Act, the best interests of X.
X’s best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[1] and are “relevant to the particular circumstances of the child.”[2] This calls for a focused examination of the considerations that arise in the individual case.
[1] Phillips & Hansford(No 2) (2019) 60 Fam LR 160 at [43].
[2] Jollie & Dysart [2014] FamCAFC 149 at [45].
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the court to place greater weight upon the second of these two primary considerations.
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap, between the considerations, and often many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
The s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the well‑being of a child. It is the synthesis of the considerations that determines best interest.
In this case, the dominant issues were related to the care for X provided by Ms Che, the protection of X from harm occasioned by his parents, the amelioration of such risks, and consideration of the benefits of meaningful relationship with the parents in a context of deficient parental capacity.
This requires careful assessment of the risk of harm to X, and the amelioration of that risk.
As identified in the Full Court case of Isles & Nellisen,[3] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[3] Isles & Nellisen [2022] FedCFamC1A 97 at [138].
Here, the determination of future risk takes place in circumstances of uncertainty about what has happened to X in the past.
The Full Court identified that, depending upon the evidence before the court, a risk of future abuse (or similarly, it may be thought, neglect or exposure to family violence) may be established by the possibility of past abuse (neglect or exposure to family violence), a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[4]
[4] M v M (1988) 166 CLR 69.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley,[5] (at [18]):
…the assertion the primary judge was obliged by law to settle certain nominated factual controversies is rejected. The parties’ evidence revealed a multitude of factual discrepancies, many of which were specifically addressed by the primary judge in the reasons for judgment, some without any positive or negative finding being made. Importantly though, the primary judge was not required by law to definitively resolve even the pivotal factual disputes when assessing the risk of harm within the wider context of the discretionary determination of the particular orders which would best promote the children’s interests.
[5] Eastley & Eastley [2022] FedCFamC1A 101.
Further, in the same manner (at [31]):
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
Finally, in that same case the Full Court observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
This understanding of risk analysis is central to the determination of this case where a key consideration is as to what harm may befall X if he is exposed to his parents.
Discussion
The manner of the parents’ interactions with the court, inconsistencies and apparent fabrications in their accounts, the circumstances of X being missing and his ultimate recovery together point strongly to a conclusion that the parents were knowingly involved in X being missing. On the evidence and circumstances as a whole, it may be accepted, on the balance of probabilities that the parents were together complicit in, and authors of X’s disappearance.
That involvement included active steps to hide X from the court and from authorities, and to actively resist the proper care arrangements put into place by the court.
X’s precise circumstances during the extended time that he was missing cannot be identified due to the non-cooperation of the parents. On their account he was left with someone who, at very best, had a most limited relationship with him. That account cannot be taken as reliable, leaving X’s circumstances during this time unknown.
The circumstances of his disappearance, and the conclusion that the parents were complicit in it, point to gaping deficits in the capacity of each of the parents to physically and emotionally care for X, noting X’s heavy reliance at his stage of development on his caregivers. The disruption to X’s care, and the placement of X in uncertain care arrangements points, at best, to a profound lack of insight into what X needs.
However, the circumstances go further than that. They point to X being at risk from his parents. He is at risk of removal and disappearance, and of subjection to inadequate care arrangements.
He is also at risk of conduct more generally by his parents toward him that takes no account of his well-being, but which pursues objectives of disrupting his current care arrangements with Ms Che.
These, either together or individually, constitute grave risks to X’s well-being.
They are not risks amenable to amelioration.
It cannot be anticipated that court orders will act as a protective factor should X be exposed to his parents. They pay little heed to court orders, as demonstrated in the contempt proceedings. Further, little comfort can currently be taken from a professional supervision arrangement pursuant to court orders, there being a risk that the parents will act forcefully in the face of such arrangements. The forceful removal of X from the doctor’s rooms gives some indication of the capacity of the parents to act forcefully to remove X. More significantly, the hiding of X in a manner resistant to the investigations of the police also speaks to the capacity of the parents to thwart mechanisms put in place by the court to ameliorate risk.
While there are general benefits identified by the report writer of a relationship with biological parents, in this case those benefits are eroded by the lack of insight on the part of the parents into X’s well-being.
What benefits remain are not sufficient to justify the risks that accompany an arrangement for the parents to have contact with X. Even if their time with X was to be professionally supervised, currently the risk posed by the parents to X, particularly by removal of X, must be assessed as unacceptable due both to their gravity and a significant likelihood of occurrence.
Under those circumstances the benefits of electronic communication between X and Ms Trach, as sought by Ms Che, are also not apparent.
It may be considered that this is a position that could change, with development of insight on the part of one or other of the parents. There can be no prediction that such will occur.
On the other side of the equation, Ms Che has demonstrated both commitment to, and capacity for the care and development of X. He is exhibiting a recovery from the circumstances of his removal by the parents, and, in her care, has good prospects for his well-being to be promoted. Ms Che’s capacity to do so is enhanced where Ms Che has the responsibility for making long term, important decisions about X’s welfare. It is not a responsibility that the parents are capable of exercising in X’s best interests, even if they were to share such responsibility with Ms Che. Parental responsibility should be vested solely in Ms Che.
Despite Ms Che’s position that seeks that Ms Trach have professionally supervised time, orders should not be made that provide for Ms Trach to spend time with X.
Rather, as sought by the ICL, there should be orders for no time with either parent, with such supported by appropriate injunctions. The risk to X of abduction is sufficiently grave as to mean that the question of any time with either parent is something to be determined, if at all, by a court, rather than left to Ms Che. It may be expected that either parent spending time with X would require a demonstration of a fundamental change of circumstances such as to alleviate the risk concerns identified in this judgment.
The actions taken by the parents to take and hide X point to the necessity for orders for the personal protection of both X and Ms Che as the person with whom X will live under these parenting orders.
Of the protections sought by Ms Che, those that are appropriate are those that prohibit either Mr Don or Ms Trach from approaching either Ms Che or X. Whilst an order for an exclusion of 500m was sought, the distance should be 100m, such distance being less likely to raise issues of inadvertent breach while still providing appropriate protection.
It is appropriate that there be an exception for Ms Trach approaching Ms Che where it is authorised in writing, given the relationship between Ms Che and Ms Trach.
Given the risk of removal of X, restraints against both Ms Trach and Mr Don prohibiting harassing, molesting or stalking X, or removing X, are appropriate. Given the nature of X’s previous disappearance, orders will also be made prohibiting the threatening of, or causing bodily harm to X.
Orders should also be made prohibiting the parents from attempting to identify the residence of X or Ms Che, or educational or child care facilities used by X.
The s 60B orders will be expressed to remain until X reaches the age of eighteen years old.
Conclusion
Orders will be made for Ms Che to hold sole parental responsibility for X. No provision will be made for either parent to have contact with X.
Injunctive protections of Ms Che and X will be made as indicated above.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 June 2023
Annexures
Orders sought by the applicant
(1)That the child, X born 2020 live with the Applicant Grandmother Ms Che.
(2)That the Applicant Grandmother, Ms Che have sole parental responsibility for the child X.
(3)That the child spend no time and have no communication with the First Respondent, Mr Don.
(4)That unless otherwise agreed in writing between the Applicant Grandmother and the Second Respondent, the Second Respondent spends professionally supervised time at Y Services City N with the child as follows:
(a)At days and times as agreed between the parties in writing.
(b)Failing agreement at days and times as nominated by Y Services.
(c)That the cost of any such contact, are to be met by the Second Respondent.
(5)That the child X communicates with the Second Respondent Mother as agreed between the Applicant grandmother and Second Respondent in writing.
(6)That pursuant to section 68B of the Family Law Act 1975 (Cth) it is ordered for the personal protection of X and Ms Che that:
(a)That Mr Don is prohibited from approaching within 500 metres of X
(b)That Mr Don is prohibited from procuring or causing any person to take the person of X.
(c)That Mr Don is prohibited from causing or threatening to cause bodily harm to X.
(d)That Mr Don is prohibited from harassing, molesting or stalking X.
(e)That Mr Don is prohibited from locating or attempting to locate X or Ms Che.
(f)That unless otherwise agreed between the Applicant grandmother and Second Respondent, Ms Trach is prohibited from approaching within 500 metres of X.
(g)That Ms Trach is prohibited from procuring or causing any person to take the person of X.
(h)That Ms Trach is prohibited from causing or threating to cause bodily harm to X.
(i)That Ms Trach is prohibited from harassing, molesting or stalking X.
(j)That Ms Trach is prohibited from locating or attempting to locate X or Ms Che.
Orders sought by the Independent Children's Lawyer
(1)That all prior parenting orders shall be discharged.
(2)That the child X born 2020 live with the Applicant Grandmother Ms Che.
(3)That the Applicant Grandmother, Ms Che have sole parental responsibility for the child X.
(4)That the child spend no time and have no communication with the First Respondent, Mr Don and the Second Respondent, Ms Trach.
(5)That pursuant to section 688 of the Family Law Act 1975 (Cth) it is ordered for the personal protection of X and Ms Che that:
(a)Mr Don is prohibited from procuring or causing any person to take the person of X.
(b)Mr Don is prohibited from approaching within 500 metres of X.
(c)Mr Don is prohibited from causing or threatening to cause bodily harm to X.
(d)Mr Don is prohibited from harassing, molesting or stalking X.
(e)Mr Don is prohibited from locating or attempting to locate X or Ms Che.
(f)Ms Trach is prohibited from approaching within 500 metres of X.
(g)Unless agreed between the Applicant Grandmother, Ms Che and the Second Respondent, Ms Trach, in writing, Ms Trach is prohibited from approaching within 500 metres of Ms Che.
(h)Ms Trach is prohibited from procuring or causing any person to take the person of X.
(i)Ms Trach is prohibited from causing or threatening to cause bodily harm to X.
(j)Ms Trach is prohibited from harassing, molesting or stalking X.
(k)Ms Trach is prohibited from locating or attempting to locate X or Ms Che.
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