Collier and Avery and Anor

[2016] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLIER & AVERY & ANOR [2016] FCCA 1728

Catchwords:
FAMILY LAW – Children – allegations of violence by child against father –child to live with the mother – child to spend time with the father in accordance with her wishes.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode (2007) 36 FamLR 422, (2006) FLC 93-286

MRR & GR [2010] HCA 4

Applicant: MS COLLIER

First Respondent: MR AVERY

Second Respondent: MS S COLLIER

File Number: PAC 920 of 2014

Judgment of: Judge Obradovic

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Parramatta

Delivered on: 15 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Mahony Family Lawyers

For the First Respondent: No appearance

For the Second Respondent: In person

ORDERS

1. All previous parenting orders are discharged.

2. The child X born (omitted) 2002 shall live with the mother.

3. The mother shall have sole parental responsibility for the child.

4. The child shall spend time with her father in accordance with her wishes.

5. Each of the parents is restrained from making derogatory remarks in relation to the other parent in the presence or hearing of the child and each parent is do all things necessary to remove the child from the presence or hearing of any third party who makes critical or derogatory comments about the other parent in the presence or hearing of the child.

6. Each parent is restrained from consuming alcohol or non-prescription drugs 6 hours prior to and whilst the child is in that parent’s care.

7. Each of Ms Collier born (omitted) 1975, MR AVERY born (omitted) 1976 and Ms S Collier born (omitted) 1952 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2002 (female) from the Commonwealth of Australia.

8. X born (omitted) 2002 be and is hereby restrained from leaving the Commonwealth of Australia.

9. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the child attains the age of 18 years.

10. Upon expiration of the period referred to in Order 9 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List. 

11. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Collier & Avery & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 920 of 2014

MS COLLIER

Applicant

And

MR AVERY

First Respondent

MS S COLLIER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to the only child of the parties, X, born on (omitted) 2002, who at the time of the hearing was almost 14 years old.

2. The final hearing proceeded on an undefended basis as against the First Respondent, the father. The Second Respondent, the maternal grandmother, appeared in person and supported the orders sought by the Applicant mother.

3. The mother relied on an Amended Initiating Application filed 20 June 2016, as well as the following:

   a)Affidavit of Ms Collier filed 14 July 2015;

   b)Affidavit of Ms Collier filed 2 October 2015;

   c)Affidavit of Ms Collier filed 17 June 2016;

   d)Children and Parents Issues Assessment completed by Ms B, Family Consultant, dated 16 February 2016;

   e)Affidavit of Ms K filed 6 July 2016; and

   f)Affidavit of Service of Ms L filed 6 July 2016.

Brief Summary of Facts and Proceedings

1. The mother was born on (omitted) 1975. The father was born on (omitted) 1976. The Second Respondent, the maternal grandmother, was born on (omitted) 1952.

2. The parents commenced a relationship in 2001 and started living together a short time later. They separated on a final basis in around late 2002 or early 2003.

3. There is one child of the relationship, X, who is the subject child of these proceedings. X has two half siblings, A and B.

4. A, who is approximately 16 years old at the time of hearing, is the son of the mother from a previous relationship.

5. B, who was born on (omitted) 2012, is the son of the father from a later relationship.

6. After the parent’s separation, X initially lived with the mother. However when she was around two or three years of age X commenced living with her father. This was in circumstances where the mother was recovering from drug issues and spent time in gaol from the end of 2004 until November 2005, for offences including drive whilst disqualified and obtain money by deception.

7. The parties were initially subject to orders made in the Family Court of Australia on 11 September 2006. These orders were subsequently discharged and the parties consented to final parenting orders on 7 March 2014, which were likewise made by the Family Court of Australia. By way of summary, those orders provided for the parents to have equal shared parental responsibility for X, that X live with her father and that she spend time with her mother on alternate weekends, half the school holidays and on special occasions.

8. Since 7 May 2015, X has been living with the mother.

9. Except on one occasion in April 2016, X has not spent any time with her father since she came into her mother’s care in May 2015.

10. On 14 July 2015 the mother commenced proceedings in the Family Court of Australia seeking, inter alia, orders that X live with her. The mother through the Notice of Child Abuse, Family Violence or Risk of Family Violence filed 14 July 2015 and her Affidavit filed 14 July 2015, alleged that the father had been physically violent towards the child and that he had subjected the child to controlling behaviours. The mother also made allegations that during the parties’ relationship the father had been physically and verbally violent towards her and her then two-year-old child, A.

11. On 20 August 2015, a final Apprehended Domestic Violence Order was made for a period of eight months at Blacktown Local Court naming only X as the protected person and the father as the Defendant.

12. On 4 September 2015, the father filed a Response to Initiating Application seeking both interim and final parenting orders in relation to X. In essence the father sought that the child live with the mother and that she spend significant and substantial time with him. On the court file is an Affidavit of the father filed 4 September 2015, which however, was not read at the final hearing of this matter. At the time he filed his documents and until 14 June 2016 the father was represented by lawyers.

13. On 10 September 2015 orders were made in the Family Court for the parties to attend an intake event for the child responsive program on 16 February 2015. Consequently a Children and Parties Issues Assessment Report was prepared by the Family Consultant. The matter was then listed before Registrar Tran on 12 April 2016 at which time the father was still pressing for orders. The matter was transferred to the Federal Circuit Court and listed for directions at 9:30am on 14 June 2016.

14. On 14 June 2016, when the matter came before Judge Dunkley in the 9:30am list, leave was granted to the father’s legal representatives to withdraw from the proceedings. The father was not present in Court and the matter was transferred to my list at 2:15pm to be heard on an undefended basis.

15. So that the father would be afforded procedural fairness I made orders listing the case for directions at 9:30am on 11 July 2016 and noting that in the event there was no appearance by the father at that time the matter would be dealt with on an undefended basis. In the meantime, the mother was ordered to file an Amended Initiating Application by 24 June 2016 and notification of orders I made on 14 June 2016 was to be made to the father.

16. On 20 June 2016 a copy of the most recent orders, the mother’s Amended Initiating Application and her Affidavit filed 17 June 2016 were sent to the father’s previous legal representatives together with a letter to the father which advised that the matter had been listed for undefended hearing at 9:30am on 11 July 2016.

17. On 21 June 2016 the father was personally served with the mother’s Amended Initiating Application and her Affidavit filed 17 June 2016.

18. When the matter was called on shortly after 9:30am on 11 July 2016 there was no appearance by the father and the matter proceeded to final hearing in the absence of the father.

The Law

1. Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary (sub-s.(2)) and additional (sub-s.(3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

5. In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.

6. The Full Court in Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.

7. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.

Allegations of Violence

1. The Family Law Act1975 (Cth) (“Act”) in s.4AB defines family violence as:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

2. On the morning of 7 May 2015 at approximately 10:30am the mother received a telephone call from X, who was very upset and crying. X asked her mother to pick up from school that afternoon and said to her mother that she was scared to go home to her father’s house. X said to her mother words to the effect of “heaps has been happening mum, I can’t keep living here.” At approximately noon on the same day the mother received a telephone call from X's High School asking the mother if she could attend the school straight away. On her way to X’s school, the mother received a telephone call from (omitted) Police Station asking whether the mother was able to attend X’s school and take X home. The mother was also told that if she was not in a position to take X to her care straight away, that X would be placed into the care of the Department of Family and Community Services. The mother picked X up from school in the early afternoon and X has been in her care since that time.

3. That day X disclosed to her mother that on 6 May 2015 the father said to the child “I’m gonna choke you then find your mother and choke her.” At that time X also disclosed that in 2012 the father had physically assaulted her by grabbing her and smashing her face into a door handle cutting her eyelid. X said that her father refused to take her to obtain medical attention and threatened her by saying words to the effect “don’t you dare tell anyone what happened to you.”

4. Subsequently X has raised significant complaints to the mother about feeling unsafe, threatened and intimidated in her father’s care. X has also complained of being socially isolated and restricted whilst in her father’s care for example, the father would not permit X to participate in after-school or weekend sport.

5. A Final Apprehended Violence Order was made protecting X from her father for a period of eight months on 20 August 2015.

6. During the Children and Parents Issues Assessment on 16 February 2016, X stated to the Family Consultant that she did not want to spend any time with her father because she was fearful of him. X claimed that the night before she had gone to live with her mother her father had threatened to kill the mother. X also disclosed to the Family Consultant that her father had frequently hit her and on one occasion had pushed her into a door handle causing a cut above her eye. X also indicated to the Family Consultant that her father had tried to turn her against her mum and that the father’s wife also used to hit her.[1]

   [1] During the assessment with the Family Consultant the father denied that he had ever hit X or that his wife had ever done so

7. In her Affidavit filed 14 July 2015, the mother also makes allegations of violence against the father during the parties’ relationship. While such allegations are historical, and must be considered particularly in light of the consent orders made in 2006 and 2014, they are nonetheless relevant.

8. The mother alleges that during their relationship including while she was pregnant with X, the father would “bash” her with his hands and also with implements. The mother alleges that the father broke a broom stick across her back, whipped her across her back and legs and hit her in the presence of her then two-year-old son.

9. The mother’s observations of the father are that he is a violent man and that he treats women, especially those who defy him or voice different opinions to him, in a violent manner.

10. During the Children and Parents Issues Assessment[2]:

    a)The father said that both parents had been physically abusive towards each other on occasions.

    b)Both parents reported past drug use and in particular the use of heroin; and

    c)Both parents indicated they had a criminal history that included periods of incarceration.

    [2] CAPIA page 5

Parental Responsibility

1. The mother seeks an order for sole parental responsibility.

2. I am satisfied that the presumption of equal shared parental responsibility does not apply in the circumstances of this case.

3. This is not only because there are reasonable grounds to believe that the father has engaged in family violence[3] but also because it would not be in the child’s best interest for the parents to have equal shared parental responsibility for the child due to the parents’ almost complete inability to effectively communicate with each other.

   [3] On the basis of the matters set out under the heading family violence in these reasons

4. In the words of the Family Consultant[4] the parents “have a toxic relationship, with little trust and no capacity to communicate or cooperate.”

   [4] CAPIA page 8

5. I will therefore make an order for the mother to have sole parental responsibility for the child.

Primary Considerations: s60CC(2)

1. As indicated above, based on the matters set out under the heading “Allegations of Violence” earlier in these reasons, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence, I take into consideration the Final Apprehended Violence Order that was made in August 2015.

2. During the Children and Parents Issues Assessment the father maintained that he had forgiven X for fabricating lies about him and that he would put the past behind him. However he later stated:

   “If my daughter decides she doesn’t want to see me, I don’t want my daughter coming in the future to ask me for anything. And I don’t think it’s fair I should be paying child support and not seeing my daughter.”[5]

   [5] CAPIA page 8

3. In the Children and Parents Issues Assessment the Family Consultant opined as follows:

   a)that it appeared that X’s relationship with her father and the paternal family had broken down;

   b)if the abuse as alleged by X had occurred, then X’s rejection of her father would be understandable;

   c)that the father had formed the view that it would be counter-productive to seek orders contrary to X’s wishes because there would be little capacity to see to it that she comply with such orders.

4. The need to protect X from both physical or psychological harm outweighs the benefit to her of having a meaningful relationship with both of her parents and in any event it is unclear whether X can have a meaningful relationship with her father in all of the circumstances.

Secondary Considerations: s60CC(3) Factors

X’s wishes

1. During the Children and Parents Issues Assessment X said she was happy living with her mother, that she had a positive relationship with her mother’s partner and that she was close to the maternal grandmother whom she saw several times a week.[6]

   [6] CAPIA page 3

2. X said to the Family Consultant that she did not want to spend any time with her father.[7]

   [7] CAPIA page 3

3. Most recently X has indicated to her mother that she doesn’t want to speak to her father or see him as a result of a conversation that she had with her father in about early June 2016.

4. Notwithstanding X’s reluctance to speak to or see her father, the mother has indicated that she is hopeful that X’s attitude will change over time.

The nature of the child’s relationships

1. X has a positive relationship with her mother and her relationship with her father appears to have completely broken down. X also reported a positive relationship with the maternal grandmother and some members of the extended paternal family, although the latter to a lesser degree.

2. This is so notwithstanding that for many years after separation (since she was about two or three years old until she was about 13 years old) X had primarily lived with her father and spent time with her mother on alternate weekends and during school holidays.

Parent’s time with X and participation in making long-term decisions

1. The father has not spent any time with X since she came into the mother’s care in May 2015, except for one occasion in April 2016 when X attended her little brother’s birthday.

2. The father has since May 2015 only had very limited communications with X.

3. All decisions relating to long-term issues, such as X’s schooling have been made by the mother since May 2015, with whom she has been living since that time.

Maintenance of the child

1. The father currently pays child support in the assessed amount.

2. X lives with her mother and apart from the amounts received through child support, the mother is responsible for all costs of rearing the child.

Likely effect of any change

1. There will be no change to the child’s current circumstances if the orders sought by the mother are made.

Practical difficulty and expense of spending time

1. There do not appear to be any practical difficulties or expenses associated with X spending time with her father.

The parents’ capacity and attitude to the child and responsibilities of parenthood

1. The father appears to have accepted X’s wish not to spend any time with him although he does not appear to be happy about it. Indeed it is unclear whether the father’s statement to the Family Consultant, namely, that if X was not agreeable to commence spending time with him he did not wish her to ask for his help or support in the future, was made out of frustration or whether it was his genuine position. Either way it is a statement which does not reflect positively on the father’s capacity to parent X, particularly on an emotional level. It is also not a statement which reflects positively on the father’s attitude to the child and the responsibilities of parenthood.

2. The mother is committed to providing a safe, stable and loving family environment for both X and her brother A. She’s assisted and supported by her husband and her parents.

3. X attends (omitted) High School and is enrolled in Year 8. She is doing well academically and has made many friends. She is a happy, sociable and confident girl. X plays (hobbies omitted) on a regular basis and the mother takes X to these activities.

4. The mother has the capacity to provide for X’s needs including her emotional and intellectual needs.

5. Through her statements about encouraging X to spend time with her father in the future and also through her actions in facilitating time between X and her father (and the paternal family) in April 2016, the mother has demonstrated a positive attitude to the child and the responsibilities of parenthood.

Characteristics of the child and the parents

1. The father is a (nationality omitted) background.

2. There is no evidence as to X’s religion or the mother’s religious or cultural background, except that the mother is Australian.

3. There is no evidence as to whether or not the mother would in the future support X learning more about her father’s religious and cultural background.

Family violence

1. These matters are dealt with earlier in these reasons under the heading “Allegations of Violence”.

Possibility of further proceedings

1. The final hearing in this matter was dealt with on an ex parte and undefended basis. Despite being advised that the matter would proceed in such a way, the father did not appear at the hearing on 11 July 2016.

2. Given X’s age and that according to the Family Consultant the parents appeared to agree to orders that X live with her mother and spend time with the father according to her wishes, it is likely that such an order is least likely to lead to institution of further proceedings.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in X’s best interest that she lives with her mother and spend time with her father in accordance with her wishes, namely, for orders to be made as set out at the forefront of these reasons.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 15 July 2016