CORELLI & GUNTHER
[2015] FamCA 81
•19 February 2015
FAMILY COURT OF AUSTRALIA
| CORELLI & GUNTHER | [2015] FamCA 81 |
| FAMILY LAW – CHILDREN - Parental responsibility - where hearing proceeded on an undefended basis after mother failed to participate – limited information available in relation to father’s personal functioning - consideration of family assessment report - whether proper to make orders in the circumstances – orders cannot be made “by default” in this jurisdiction - father retains parental responsibility pursuant to s 61C - best interests of the child – no orders made for parental responsibility. |
| Family Law Act 1975 (Cth) s 60CA, 61B, 61C, 61D, 61DA, 65D, 65DAA Family Law Rules 2004 (Cth) r 11.02 |
| Allesch v Maunz (2000) 203 CLR 172 Andrew & Delaine [2009] FamCAFC 182 Goode & Goode (2006) FLC 93-286 Haydon & Bennett and Anor [2012] FamCAFC 89 Lanceley & Lanceley (1994) FLC 92-491 Marvel & Marvel (2010) 43 Fam LR 348 McMahon & McMahon (1976) FLC 90-128 Newlands & Newlands (2007) 37 Fam LR 103 Pavli & Beffa [2013] FamCA 144 Sexton & Sexton [2012] FamCAFC 218 VR v RR (2002) FLC 93-099 |
| APPLICANT: | Mr Corelli |
| RESPONDENT: | Ms Gunther |
| INDEPENDENT CHILDREN’S LAWYER: | Georgina Parker Lawyers |
| FILE NUMBER: | ADC | 2632 | of | 2013 |
| DATE DELIVERED: | 19 February 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 23 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | H Lawyers & Mediators |
| THE RESPONDENT: | No Appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Georgina Parker Lawyers |
Orders
That all previous parenting orders are discharged.
That the mother be restrained and an injunction granted restraining her from removing the child from the father’s care.
The father’s Amended Initiating Application filed 25 November 2013 is dismissed and the matter removed from the active pending cases list.
All extant interim applications are dismissed.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Corelli & Gunther has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2632 of 2013
| Mr Corelli |
Applicant
And
| Ms Gunther |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed 25 November 2013 the father seeks parenting orders in respect of the infant child B, born in 2012, including orders for sole parental responsibility with the child to live with him and spend supervised time with the mother as agreed between the parties. The father also seeks an order of this Court that he be nominated as the father on the child’s birth certificate.
By Response filed 30 August 2013 the mother opposes the father’s application and seeks orders for sole parental responsibility with the child to live with her. The mother makes no provision for the child to spend time with the father.
Ultimately, the mother failed to participate in proceedings and the child has been in the care of the father since September 2014. The lack of engagement appears deliberate but in any event is without explanation.
Background
The father was born in 1967 and is currently 47 years old. The mother was born in 1991 and is currently 23 years of age. The mother identifies herself as Aboriginal.
The child was born in 2012 and is currently two years old.
Prior to the commencement of proceedings the child lived with the mother and spent time with the father on an ad hoc basis depending on the mother’s needs and the father’s availability.
The mother has a three year old child, C, from a previous relationship. The father has an adult son, Mr D, from a previous relationship with whom he maintains a good relationship.
The parties commenced a relationship in June 2011. In January 2012 the mother, her child C, the maternal grandmother and the maternal aunt moved in with the father. That arrangement came to an end in September 2012 when the mother and her family members vacated the father’s residence after the breakdown of their relationship.
Families SA had monitored the mother’s ability to care for the child throughout her pregnancy and after the child was born. The subpoenaed material annexed to an affidavit of the father’s solicitor reveals the mother disclosed to Families SA significant drug use throughout her pregnancy. A drug test taken by the mother approximately one week after the child’s birth returned a positive result for both opiates and cannabinoids. A further drug test taken on 14 November 2012 returned a positive result for benzodiazepines, cannabinoids and opiates. The material reveals the mother displayed a similar pattern of drug use throughout her first pregnancy.
The subpoenaed material also discloses the mother’s concerns in relation to the father. The mother had previously reported their relationship to be one characterised by physical, sexual and verbal abuse. She reports as being “terrified” of the father and sought the assistance of domestic violence support services. The father rejects the mother’s allegations.
The father discloses a history of substance abuse but maintains that the birth of the child prompted a radical alteration in lifestyle and that he is now drug free and has been for a significant period.
Procedural History
Proceedings commenced in July 2013 when the father filed an Initiating Application seeking orders for equal shared parental responsibility and a shared care arrangement in which the child would spend time with the father as agreed between the parties.
The mother filed a Response in August 2013 seeking orders for sole parental responsibility and that the child live with her. The mother’s Response makes no provision for time with the father but rather it seeks an injunction restraining the father from coming within 300m of the mother and child or harassing or communicating with the mother.
In early September 2013 orders were made by consent which determined the child would live with the mother during the period of adjournment and spend time with the father at a Children’s Contact Service. The orders also restrained both parties from consuming illicit substances and required each party to submit to drug testing within 24 hours of a written request from the other party’s solicitors.
Shortly thereafter the father’s solicitors made repeated requests for the mother to undertake a random drug test. They received no response. The mother’s solicitors filed a Notice of Ceasing to Act in October 2013.
Orders for drug testing and the consequences of non-compliance is a thread that runs throughout the proceedings and has been the subject of numerous applications.
The mother appeared in person on 29 October 2013 when Judge Cole made orders that the child live with the mother and spend time with the father each Monday, Wednesday and Friday between 1.00pm and 3.00pm. Further orders were made continuing the parties’ ability to request the other undergo random drug testing, with the results to be furnished to the Independent Children’s Lawyer (“the ICL”).
After the mother did not comply with the father’s request for a random drug test in November 2013 the father filed an Application for Contravention directed to the mother’s failure to undertake drug testing as ordered between September and November 2013.
In December 2013 the orders were varied by consent such that the child would spend time with the father as follows:
· From 1.00pm on Monday to 1.00pm on Tuesday;
· From 1.00pm on Wednesday to 1.00pm on Thursday; and
· From 1.00pm on Friday to 1.00pm on Saturday.
Presumably the child’s age was a factor in the unusual arrangements.
The mother was further ordered to undertake a urine test for the presence of illicit and/or prescription drugs within 24 hours. The mother’s results dated 10 December 2013 show the test returned a positive result for cannabinoids, opioids and benzodiazepines. However, an affidavit of the mother’s solicitor at the time states the test detected substances prescribed by the mother’s general practitioner.
After observing cuts and bruising on the child upon his return from the mother’s care the father filed an Application in a Case on 25 November 2013 seeking the mother’s time with the child be suspended and the child live with him until further order
When the matter next came before Judge Cole on 30 January 2014 his Honour continued the existing parenting arrangements and the mother was again ordered to undertake a urine test. His Honour made further orders allowing the ICL to request a random drug test of either party.
Pursuant to a request by the ICL the father undertook a random drug test in March 2014. The father tested negative to all substances.
On 27 March 2014 the father filed an Application in a Case seeking an urgent order for the recovery and delivery up of the child from the mother’s care after the mother failed to make the child available at handover. The mother’s actions appear to be prompted by concerns over an injury sustained by the child while in the father’s care, an injury the father describes as a “minor bump to the head” during play group. Correspondence annexed to the father’s affidavit filed 27 March 2014 corroborates the father’s version of events.
In the application the father also sought the supervision of all time between the mother and child and for the child to live with him until further order. The father continued to express concerns for the child’s safety following more cuts and bruises to the child while in the mother’s care and what the father describes as the mother’s increasingly erratic and drug affected behaviour as detailed in his affidavit filed 27 March 2014:
[54] On Thursday 6th March 2014, I attended at the mother’s home in order to return [the child] to her. The mother asked me in to her home and I agreed to do so. Whilst there, I observed the mother smoking marijuana inside her home with [the child] and the mother’s son [C] present. The mother offered me some marijuana which I declined and I then left the mother’s home.
…
[87]I have been extremely tolerant of the mother’s ongoing drug use. It has been extremely hard for me to continue to return [the child] to the mother’s care after each period whilst knowing full well that the mother is strongly addicted to the almost daily use of illicit substances and having regard to the daily danger that the child is placed in as a consequence of the mother’s associated negligent parenting.
An Application for Contravention accompanied the Application in a Case. The father alleges the mother failed to undertake a random drug test as ordered and failed to make the child available for handovers.
In April 2014 the mother’s solicitors filed a Notice of Withdrawal as Lawyer however, the mother was able to secure new representation in May 2014.
The initial Family Report in this matter was completed on 22 May 2014 by Dr E. Citing “too many evidentiary issues”, Dr E declined to make a recommendation in this matter
The mother filed an Application in a Case on 20 June 2014 seeking urgent orders for the recovery and delivery up of the child after the father removed the child from the mother’s care on 15 June 2014. The father had removed the child from the mother’s home after she apparently received threats of physical harm from an individual by the name of “F”. The father was subsequently ordered to deliver up the child to the mother and the father’s time was suspended for approximately one week.
Upon noting the length of the trial would likely exceed five days, Judge Cole transferred proceedings to this court on 9 July 2014. The time for handover was also varied to 4pm at the Hungry Jacks Restaurant at the shopping centre, Suburb G.
For a brief period in July 2014 the father appeared unrepresented during which he filed an Application in a Case seeking an urgent recovery order after the mother did not attend handover on 11 July 2014. An Application for Contravention accompanied the Application in a Case.
The matter first came before me on 28 August 2014 for consideration of the father’s Amended Application for Contravention filed August 2014. While both the mother and the father had the benefit of counsel the mother did not attend. I made orders for a recovery order to issue should the mother fail to deliver up the child on Saturday 30 August 2014 and adjourned the matter for further consideration. The mother ultimately complied with the orders and the operation of the recovery order was stayed.
At a hearing before me on 3 September 2014, at which the mother was again represented by counsel, she admitted to two counts of contravention and orders were made for the mother’s time with the child during the brief period of adjournment to be conditional upon the provision of a drug test result that demonstrated the mother was not affected by illicit substances.
It is unclear whether the mother declined to take the test or failed to provide her solicitors with the results but in any event the mother did not spend time with the child and the child has been in the full time care of the father ever since.
Judgment was delivered in relation to the contravention application on 3 September 2014 and the mother was ordered to enter into a bond for a period of one year. The father’s Applications for Contravention filed 25 November 2013, 27 March 2014 and 26 August 2014 were otherwise dismissed.
The father filed a further Application in a Case on 4 September 2014 again seeking orders that the child live with him and spend supervised time with the mother. The father alleges the mother appeared to be under the influence of drugs and her health had deteriorated to the point at which she appeared to be covered in sores.
When the matter was next before me on 10 September 2014 (at which time it was expected the mother would enter into a bond as ordered), the mother did not attend and neither counsel nor the mother’s instructing solicitor could provide an explanation although the mother’s counsel was able to make contact with her.
Accordingly, the mother has not yet agreed to enter into a bond as ordered and the contravention proceedings remain unresolved but not pressed by the father.
Orders were made suspending all previous parenting orders during the period of adjournment with the child to live with the father until further order. The mother’s solicitor was ordered to provide the mother with a copy of the orders made by me that day and shortly thereafter filed a Notice of Ceasing to Act. The Court file reflects the mother has been without legal representation since 17 September 2014.
On 15 September 2014 the mother made an application in another Court for an Interim Intervention Order against the father. The order was made on 28 October 2014 and lists the mother, C and the child as protected persons. The order was varied on 30 October 2014 to remove the child from the list of protected persons.
On 24 September 2014 Dawe J made orders for the recovery of the child pursuant to s 67U after the father brought an urgent ex parte application. Despite the mother’s time being suspended until further order, the father allowed the mother to spend time with the child at a local park and, notwithstanding what the father describes as the mother’s distressing drug affected behaviour and visible “track marks up her arms”, he then permitted the mother to take the child inside her home in his absence. Somewhat unsurprisingly the mother closed the door on the father and refused to return the child. The child was subsequently located and delivered up to the father on 25 September 2014 by the Australian Federal Police.
The mother did not attend on the adjourned date of 2 October 2014. Upon noting the failure of the mother to participate in the proceedings, and the earlier contravention proceedings had not yet been finalised, orders were made setting the matter down for trial with further consideration to be given to whether a warrant for the mother’s arrest do issue should she fail to attend on the adjourned date. A copy of the order was forwarded to the mother’s address.
The mother did not attend the next mention date of 24 October 2014 nor did the mother attend a scheduled interview for the preparation of the family report on 17 November 2014.
The mother again failed to attend a hearing on 2 December during which directions were made for the final hearing of the matter on 23 December 2014.
The mother did not attend a hearing at the Adelaide Magistrates Court in relation to her application for an Intervention Order on 4 December.
The mother did not attend the final hearing on 23 December. There was no response to the mother’s name when called in the precincts of the court.
There being no appearance by the mother or her counsel the hearing proceeded on an undefended basis. Judgment was reserved following submissions from the father and the ICL.
However, on 15 January 2015 the father’s solicitors electronically filed a further trial affidavit which contained a brief update of the father’s Intervention Order proceedings. As no leave was granted that affidavit was uplifted from the Court file. The father then filed an Application in a Case seeking leave to adduce further evidence. That application was heard and determined by me on 2 February 2015 and leave was granted to the father’s solicitors to file the affidavit and the evidence was received in relation to the status of the Intervention Order proceedings. In summary, the Intervention Order was revoked on 13 January 2015 after the mother failed to attend the hearing in the Magistrates Court.
Documents Relied Upon
The father relied upon the following documents:
·Affidavit of the father filed 17 December 2014
·Affidavit of Mr H filed 18 December 2014
·Family Assessment Report dated 19 December 2014
The Independent Children’s Lawyer (“the ICL”) relied upon the following documents:
·Family Assessment Report dated 19 December 2014
·Affidavit of Ms Georgina Parker filed 2 June 2014
Evidence of Mother
The mother did not comply with the trial directions and accordingly there is no affidavit material that the Court was able to consider on her behalf. I am satisfied that the mother was aware of the proceedings but for reasons best known to her, chose not to avail herself of the opportunity to participate
I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 203 CLR 172, Sexton & Sexton [2012] FamCAFC 218 and Haydon & Bennett and Anor [2012] FamCAFC 89.
Notwithstanding the mother plays no part in proceedings either by way of her physical presence or in terms of any affidavit material that the Court is able to consider, I do not consider that this matter is dealt with appropriately by in effect dismissing the mother’s response summarily and making orders in default.
The Full Court considered the implications of an undefended hearing in Lanceley & Lanceley (1994) FLC 92-491 at 81,104:
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a “judgment by default” in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
Similarly, in the earlier decision of McMahon & McMahon (1976) FLC 90-128 the Full Court (Ellis CJ, Pawley SJ and Ellis J) at 75,607 said:
…where a court does proceed to deal with a matter as an undefended matter it is still bound by the same general requirements as to proof as in a defended matter. This does not mean that a court necessarily has to insist on detailed evidence, make elaborate findings and give reasoned decisions in undefended matters. This would cause too onerous a burden on the court, and clog up already crowded lists. Nevertheless it must be satisfied that the evidence supports its findings and orders.
While the comments in Lanceley (supra) and McMahon (supra) are in the context of property settlements the principle is of perhaps greater importance in an application for parenting orders.
The mother’s absence does not entitle the father to have orders made in his favour by default. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that it is apparent how I have exercised and discharged the need to give proper consideration to the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
Evidence of Father
The father attended proceedings and in support of orders sought he filed a trial affidavit on 17 December 2014. Counsel for the ICL took the opportunity to cross examine the father. The enquiry of the father was brief.
He confirmed the mother has not spent time with the child since the events leading to the recovery order in September 2014. The father has not spoken or communicated with the mother since late September.
The father gave evidence that he would contest the mother’s Intervention Order in January 2015 and indicated the mother had also failed to attend hearings in relation to that matter.
There was some confusion surrounding the evidence of the father in relation to the completion of the “Circle of Security” program. The father said he had already successfully completed the “Circle of Security” parenting program earlier in the year but would be willing to take the course again as he had found it helpful.
The affidavit material indicates the father completed the “Kids are First” separation parenting course on 5 March 2014 but there is no record of a “Circle of Security” course undertaken by the father.
Family Assessment Reports
The initial Family Report was completed by Dr E on 22 May 2014. The mother, father, the maternal grandmother, the paternal grandmother and maternal aunt were interviewed in June 2014 to assist in the preparation of the report. No recommendations were made by Dr E and neither counsel sought to rely on the contents of that report.
A second Family Report was completed by Family Consultant J on 19 December 2014. Ms J interviewed the father and the paternal grandmother. As the mother did not attend her scheduled interview her views are not recorded in the Family Report. No other members of the maternal family were interviewed in the preparation of the report.
While noting the father’s determination to be a good parent, Ms J expresses caution in relation to the father given the limited information surrounding his personal functioning, his admissions of a “dark past” and the mother’s untested allegations of abuse at the hands of the father.
Notwithstanding those reservations Ms J states the father “may be the only viable option to provide care for the child”. She recommends that “at this point in time” the child lives with the father who should engage in individual counselling and participate in the “Circle of Security” parenting program. While no recommendation is made in relation to time spent between the mother and child, Ms J recommends an order be made requiring both parents to undergo random drug testing.
In the decision of Andrew & Delaine [2009] FamCAFC 182 the Full Court considered the treatment and weight to be given to the recommendations by a family consultant at [72]:
It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a trial Judge. However, the ultimate decision still must be that of the trial Judge. The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent, with the rest of the body of evidence before him.
(c) While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witness in court under examination and cross examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
I consider that I am significantly helped by the report of Ms J, but am not persuaded that the interests of the child would necessarily be served by simple reliance upon the recommendations.
Parental Responsibility
Before embarking upon a consideration of the merits of the orders sought by the father, it is helpful to set out the legislative framework in relation to parental responsibility.
Section 61B defines parental responsibility as follows:
…parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
The effect of s 61B is explained by reference to ss 61C and 61D of the Act.
Section 61C(1) provides that “each parent of a child who is not 18 has parental responsibility for the child”. The notes to the section are as follows:
Note 1:
This section states the legal position that prevails in relation to parental responsibility to the extent which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2:
This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Section 61D provides:
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
In summary, s 61C confers parental responsibility for a child on the parent of a child while s 61D limits that parental responsibility to the extent that any order of a court expressly or necessarily provides.
The Full Court in Goode & Goode (2006) FLC 93-286, referring to parental responsibility pursuant to s 61C, held at [37] that:
…where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
In Goode (supra) the Full Court highlighted an important distinction to be drawn between s 61C and an order for equal shared parental responsibility at [39]:
We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
The Full Court in Newlands & Newlands (2007) 37 Fam LR 103 considered the distinction to be drawn between parental responsibility and equal shared parental responsibility. In that case the trial judge had made orders for “joint parental responsibility” save and except the mother would retain sole parental responsibility in respect of the child’s schooling. At [91] the Full Court considered an alternative approach open to the trial judge namely, for the mother to be given sole parental responsibility for the child’s education and:
…for the order to be silent as to the remaining aspects of parental responsibility in which case s 61C and s 61D would have effect and the remaining aspects of parental responsibility would be exercised by both parents either jointly or independently
This interpretation of s 61C and s 61D was reiterated by a differently constituted Full Court in Marvel & Marvel (2010) 43 Fam LR 348 at [94]:
Section 61C, as explained in Goode, provides that each of the parents of a child has parental responsibility for a child. That responsibility exists whether the parties are in an intact family, separated, or remarried. The section has effect subject to any order of the court. That is, one or more aspects of parental responsibility may be changed by a court order. (emphasis in original)
The decisions referred to above confirm that in the absence of an express or necessary order to the contrary, parental responsibility conferred on a parent by virtue of s 61C of the Act may be exercised either jointly or independently.
An order for sole parental responsibility, as sought by the father, is undoubtedly a parenting order as defined in s 64B and contrary to any parental responsibility the mother may seek to exercise pursuant to s 61C.
Consideration
The father seeks an order for sole parental responsibility and the child to live with him. The orders proposed by the ICL mirrored those sought by the father with the additional requirement that would see the father complete the “Circle of Security” program, perhaps for the second time.
The enquiry of the father was brief. I would have been assisted by a more thorough enquiry into the father’s criminal history (including convictions for possession of illicit substances), drug and alcohol issues, the allegations of domestic violence and what, if any, strategies he has implemented to improve his parenting abilities given the concerns of the family consultant.
While not accepting the police reports annexed to the affidavit of the ICL as truth of the matter, the father’s criminal history is of significant concern given the paucity of evidence in this matter. By way of an example, in 2012 the father was convicted of disturbing the peace for an incident which occurred in 2010 when a number of police officers attended the father’s residence after he was observed half dressed, but wearing a clown mask, smeared with blood while yelling obscenities at his neighbours and smashing beer bottles. An acquaintance and her young child were present at the time. The father was subsequently detained and sedated. The police removed swords and cannabis from the father’s home. In his affidavit material the father attributes his behaviour to a bad reaction to prescription medication. He has no recollection of the event. Another example plucked from the father’s criminal history is a conviction in 2006 for causing bodily harm by dangerous driving. The victim in that matter was a former partner of the father.
In relation to the father’s criminal history both counsel noted the father had not attempted to shy away from his past but rather that he had acknowledged his mistakes and changed his behaviour since the birth of the child. This is reflected in the father’s offender history with no offences recorded after the incident in 2010.
Counsel acknowledged that while the ICL had previously voiced concerns over both parents the greater concern was the mother’s ability to parent. Reference was made to the mother’s history of non-compliance with orders, particularly in relation to drug testing, and her presentation generally throughout the proceedings.
When I expressed concern over orders being made not because the father was a meritorious parent but because the mother had abrogated her responsibilities, counsel for the ICL submitted that the father had “stepped up to the plate” and provided the child with a safe and drug free environment with the benefit of a close and loving relationship with the paternal grandmother, as documented in the Family Report. However, Ms J also notes the father “missed several opportunities to emotionally connect with the child in very simple and developmentally appropriate ways” during the observed interactions. If the father has already recently undertaken a parenting course aimed at increasing his parenting skills, the criticisms of the family consultant are worrying.
Both counsel highlighted the father’s good intentions and during the course of submissions I was directed to the Family Report at [31]:
To assess the parent-child relationship, information from the observations of interaction between parent and child can provide some indication of the quality of that relationship. The importance of a secure parent-child attachment relationship is that it acts to protect children from other potential risk factors throughout their development. In the current assessment there was sufficient information to suggest that [Mr Corelli] was invested in being a good parent, and his intentions were positive. While [Mr Corelli] has expressed a determination not to parent in the same way as his father, he does not seem to hold a clear image of the kind of parent he would rather be. While he no doubt loves [the child] and has described the desire to be a “happy” parent, he would benefit from learning about the specific parenting behaviours that would support [the child’s] global development and assist him to be the best parent he can be. The Family Consultant was of the view that [Mr Corelli] would benefit from engaging in a parenting program aimed at increasing his parenting sensitivity skills and also addressing issues that appear to have emerged as a result of past traumatic childhood experiences as these can manifest within the parent-child relationship – despite a parent’s best intentions.
That paragraph does not greatly advance the submissions of the father or the ICL. In any event, the court must hear and determine an application for parental responsibility on the basis of best interests not best intentions.
Part VII of the Act sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.
In proceedings for a parenting order the Court’s power to make an order is contained in s 65D(1):
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper. (my emphasis)
Section 65D(1) is subject to s 61DA of the Act. This section requires the Court to apply a presumption that is in the interests of the child that there be equal shared parental responsibility, unless there is abuse or family violence as referred to in s 65D(2) and/or the presumption is rebutted by evidence that suggests equal shared parental responsibility would not in the circumstances be in the interests of the child.
The evidence in this case where it is uncontested and by reference to the matters raised by the Family Consultant and ICL enable me to find that it would not be in the best interests of the child for the parties to have shared parental responsibility.
Accordingly, the presumption in s 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.
The issue to be determined is whether, pursuant to s 65D(1), it is proper that any parenting order me made. The word “proper” was considered by the Full Court in VR v RR (2002) FLC 93-099 at 88,940:
28. The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but that a court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
29. Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
The discretion contained in 65D should be read in conjunction with s 60CA of the Act which provides that “in deciding whether to make a particular parenting order…a court must regard the best interests of the child as the paramount consideration”.
In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC (2) and (3) namely, the primary considerations and the additional considerations.
The primary considerations are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It is evident from the remarks of Ms J, and my own observations of the father during the course of proceedings, that the he clearly loves the child.
There remains significant uncertainty as to whether at this stage the Court can have confidence in the ability of the parties, but in particular the father, to “protect the child from physical or psychological harm” and to ensure that the child is not “exposed to, abuse, neglect or family violence”.
The mother has provided no assistance to the Court. The father presents as a party who admits to having a “dark past” but now is keen to be the best parent that he can be to the child.
His current circumstances are heavily reliant upon his residence in the home of his mother. There is no evidence of the father being able to independently care for and protect the child.
It is useful to note the issues that were in dispute as commented upon by the family consultant:-
·With whom the child should live and the time spending arrangements
·Allegations of drug abuse raised by the father
·Allegations of drug abuse and family violence raised by the mother
·Significant history of trauma experienced by both the mother and father during their respective childhoods and the impact on their personal functioning
·The separation of the half siblings
·Cultural issues
It would appear that the father has remained drug free, although he admits to having a long history of alcohol and drug abuse. It is only the birth of the child which in his words has given him “a real boot”.
For his part, the father alleges that the mother continues to abuse drugs and that when the child was born he was “drug addicted”.
The family consultant expressed concern as to the nature and extent of the behaviour of each of the parties but in particular that of the father as alluded to by the police records to which she had access.
Whilst the father rejects the accuracy of the matters raised in those records (and clearly they are either inadmissible or of no significant evidentiary weight), he nonetheless agrees that his criminal history is a significant factor. It is not the subject of detailed acknowledgement in the trial affidavit that he relies upon.
Whatever misgivings may exist in respect of the current presentation of the father, the almost total lack of engagement by the mother in the proceedings (save and except for her attendance upon the family consultant) require that I consider and give weight to the serious allegations that the father makes as to her lifestyle, drug use and the potential risks posed by those with whom she associates.
Whilst satisfied that the child is able to be protected from physical or psychological harm, abuse, neglect or family violence in the current circumstances in which the father lives, the same cannot be said for the mother.
The additional considerations are set out in s 60CC (3) and I bring them to account.
The child is currently two years of age. There are clearly no views expressed by the child, although the observations of interaction between each of the parties and the child were appropriate. It was noted by the family consultant that the father needed to develop skills that would facilitate the better interaction with the child taking into account his cognitive capacity, language skills and maturity. In short, whilst appropriate and protective, the father may not have developed skills that would enable him to be attuned to the needs of the child.
It is difficult to comment on the nature of the relationship between the child and each of the parties. There is nothing in the observations of the family consultant that suggests the child would not have a good relationship with his parents all other things being equal. What is important however is the important involvement of the paternal grandmother. The observations of the family consultant are significantly influenced by the beneficial relationship between the paternal grandmother and the child. She was prepared to acknowledge that her son’s history was “chequered” and that historically he had suffered from “poor personal functioning and drug use”. It is her observation that of recent date her son stopped the consumption of illicit drugs and alcohol and appears to her observation to have turned a corner with a principal focus now on the parenting of the child.
At this stage I am confident that the child’s best interests are served and protected by his continued residence in the home of the paternal grandmother. The difficulty however is that it could not be expected that the father will remain in his mother’s home indefinitely and it is also important to bring to account the father’s involvement and relationship with Ms K who it seems may well come into contact with the child every day.
There is no suggestion that the father’s relationship with Ms K is other than beneficial, but it is an element of uncertainty against the backdrop of the concerns of the family consultant that the father may not be attuned to the emotional requirements of the child at this young age.
Unfortunately there is no evidence to assist the Court as to the mother’s relationship with the child and in the context of this case, associates of the mother with whom the child may come into contact.
The father clearly maintains the child without assistance or input from the mother. It is reasonable to find that the father, with the assistance of his mother, provides appropriately for the child.
In circumstances where there is complete uncertainty as to the mother’s circumstances, it is not an issue as to whether the child should continue to reside with the father, it is a matter as to whether in all the circumstances the Court has sufficient evidence on which to found a parenting order.
I have already made comment on the ability of each of the parties to provide for the child’s emotional and intellectual needs. There is no evidence in respect of the ability of the mother to undertake this role and at this stage there is some uncertainty as to the extent to which the father understands the emotional and intellectual needs of the child. There is no doubt that the father is committed to the care of the child and as he says, the child is in an environment which is “beautiful, safe, clean and happy”. If this is a reflection of the father’s dramatic reassessment of his life and his commitment to the proper parenting of the child in circumstances where the father is now drug and alcohol free, then this is to his credit. The difficulty that I have is that given the age of this child and the significant changes that could occur if the father and the child were to leave the home of the paternal grandmother, uncertainty arises as to the father’s ability to provide an appropriate environment for the child.
The child is of aboriginal descent. There is no evidence as to the extent, if any, the mother would wish the child to enjoy his aboriginal culture and the father’s evidence is that this was never a factor in the mother’s presentation and parenting. To his credit the father says that he would wish the child to be proud of his aboriginal heritage and in that regard I accept what he says. The Full Court in the marriage of B & R (1995) FLC 92-636 at 82-396 said:-
It is not just that aboriginal children should be encouraged to learn about their culture, and to take pride in it in the manner in which other children might be so encouraged. What this issue directs our minds to is the particular problems and difficulties confronted throughout Australia history, and at the present time, by aboriginal Australians in mainstream Australian society. The history of aboriginal Australians is a unique one, as is their current position in Australian life.
The Full Court in Donnell & Dovey [2010] FamCAFC 15 said:-
[321]We consider that an Australian Court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/White Australian children apply with equal force to indigenous children, even those who may have been raise in an urban setting.
[322]In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic understanding of indigenous culture, at least to the extent this can be found in what the Full Court in B & R (supra) called “readily accessible public information”. It should not be expected that parties must approach the Court on the basis that the presiding judicial officer comes to the case with a “blank canvas”.
An obvious difficulty is that notwithstanding that the father would wish the child to be proud of his indigenous and non-indigenous heritage, there is nothing from the father as to how this would be promoted. It may be that in the absence of any viable alternative, there is nothing reasonable that the father can do, but it seems to me that in a case where the father seeks the sole parental responsibility for the child these are matters which need to be the subject of careful consideration by him.
The issue of family violence in this case is a river that runs deep. There appears to be an acceptance by the father that his history involved family violence and it is certainly noted by the family consultant that the mother makes allegations that the father demonstrated frequent violence towards her. The father denies that allegation but nonetheless in the absence of the father explaining the nature of his history, rather than acknowledging the generality of it, the Court cannot have the confidence in the father’s reformation and renaissance that he would promote. That is not to suggest that I do not accept his evidence and that of his mother that he appears to have remained drug and alcohol free since the birth of the child. It is however a reflection of the dramatic leap of faith that the father requires of the Court to accept that his presentation today no longer bears any of the scars of his earlier conduct.
I am obliged to consider making orders that are least likely lead to the institution of further proceedings. The whereabouts of the mother is unknown and the needs of this child will rapidly evolve given his age and the significant development milestones which will quickly present themselves.
Whilst finality makes it attractive to consider making orders as sought by the father, a parenting order should be made where proper to do and only if in the best interests of the child.
By reference to s 60CC both as to the primary but also the additional considerations, I am not satisfied that there is sufficient evidence or certainty as to the father’s ability to parent and in particular for him to do so away from his mother’s home, that it would be proper to make orders in terms of his application.
If I do not make the orders as sought by the father, each of the parents of this child retain parental responsibility pursuant to s 61C of the Act at least to the extent that it is not displaced by a parenting order.
I propose therefore to put in place an injunction that would restrain the mother from removing the child from the father’s care. The father would retain his parental responsibility pursuant to s 61C and would be able to make decisions both as to major and day to day issues likely to impact upon the child.
It may be the case that as the child matures and the environment of the child and father become more certain, appropriate circumstances may exist for him to seek further parenting orders.
Conclusion
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 February 2015.
Associate:
Date: 19 February 2015
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