Curtis & Garnett
[2023] FedCFamC2F 326
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Curtis & Garnett [2023] FedCFamC2F 326
File number: PAC 2578 of 2021 Judgment of: JUDGE STREET Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – PARENTING - leave to legal representative to withdraw- undefended hearing – mother sole parental responsibility- children live with mother – no contact with father Legislation:
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 69ZM, 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit Court and Family Court of Australia (Family Law) Rules rr 1.04, 1.33, 3.10, 10.26, 10.27
Cases cited:
A v A (1998) FLC 92-800
A & Z [2006] FamCA 179
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115
Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
Division: Division 2 Family Law Number of paragraphs: 85 Date of hearing: 23 February 2023 Place: Sydney Solicitor for the Applicant: Ms K Ziayee of Supreme Justice Lawyers Counsel for the Respondent: Mr L Reeves Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Mr L Fermanis Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 2578 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CURTIS
Applicant
AND: MS GARNETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
23 February 2023
THE COURT ORDERS THAT:
1.The matter proceed on an undefended basis.
2.Leave is granted to the applicant’s solicitor to withdraw from the proceedings in circumstances where the applicant father has failed to attend the hearing.
3.That X (born in 2006) and Y (born in 2008) live with the respondent mother.
4.That the respondent mother shall have sole parental responsibility for the children X born in 2006 and Y born in 2008 (“the children”).
5.The applicant father shall have no contact with the children except as requested by them.
6.The applicant father is restrained by way of injunction from removing the children from school.
7.The applicant father is restrained by way of injunction from attending the respondent mother’s house.
8.The ICL in this matter is discharged.
9.The Court reserves its written reasons for the above orders.
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 Curtis & Garnett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
BACKGROUND
These are parenting proceedings that were commenced on 14 May 2021 by the applicant father in relation to two children: Y (born in 2008), now being fifteen, and X (born in 2006), now being sixteen. The matter was fixed on 23 February 2023 for a final parenting hearing.
PERMISSION TO WITHDRAW
At the commencement of the hearing the Court raised whether the parties’ representatives had explored the resolution of the matter. Ms Ziayee, on behalf of the applicant father, indicated that the applicant father was not in attendance, that she could not now get instructions and that she wished an opportunity to endeavour to contact him and, failing that, would otherwise seek leave of the Court to withdraw from the proceedings. The matter was stood down for half an hour and the solicitor for the applicant identified that she was unable to contact her client. It was apparent that Ms Ziayee had expected her client to attend and was unable to obtain instructions. Further if the applicant’s affidavit evidence was to be admitted the applicant was required to attend the hearing for cross examination. The Court was satisfied that it was appropriate in the circumstances to give the solicitor for the applicant leave to withdraw from the proceedings in accordance with r 3.10 and that the applicant is in default under r 10.26 enlivening the powers under r 10.27 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules”).
UDEFENDED HEARING SUBMISSIONS
The respondent asked for orders that the matter proceed as an undefended hearing and asked for orders as identified in the amended response filed on 9 February 2023. The respondent’s case outline addressed the statutory criteria in detail which the Court has substantially accepted.
The ICL identified the impairment of the applicant if the Court finds that the father perpetrated family violence and the significant risk to the children from exposure to the father’s violent behaviour and impact on emotional development. The ICL identified the serious concerns as to the applicant’s parenting capacity, lack of insight and apparent inability to change posing a significant risk to the children which could not be addressed other than by the orders sought by the mother.
The ICL pointed out the deficiencies in the applicant’s evidence, his failure to take active steps for the children, his poor attitude to the mother, his allegations against the mother and that there is no evidence that the applicant has read or is willing to participate in the programs the subject of recommendations, has not obtained a psychiatric assessment and that requiring the children to participate in reunification therapy would expose the children to further risk and trauma. The ICL supported the matter proceedings as an undefended hearing.
UNDEFENDED HEARING
The matter was fixed for hearing pursuant to orders made on 30 August 2022 and those orders included requiring the applicant to file a consolidated trial affidavit on or before 20 December 2022. That order was not complied with by the applicant. The Court is satisfied that the applicant was well aware of the hearing date and has failed to attend. The Court finds the applicant has breached the Court’s orders and is in default of orders in terms of filing a consolidated trial affidavit and failed to comply with the procedural order by failing to attend the hearing enlivening the Court’s powers under r 1.33 and r 10.27 of the Family Law Rules. The Court has taken into account the overarching purpose of the Family Law Rules in r 1.04 and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) as well as s 43 and s 69ZN of the Family Law Act 1975 (Cth) (“the Act”).
Further, the respondent’s case outline foreshadowed seeking to proceed as an undefended hearing for the applicant’s failure to comply with the procedural order of the Court as to the filing of a consolidated affidavit. The Court notes this is a case where there had been a Family Report made on 4 May 2022 and an updated Family Report on 7 February 2023. The Court is alive to the fact that the updated family report identifies a level of participation by the applicant. In that report, it does not identify the taking of any active steps to undertake the programs that were identified in the earlier report dated 4 May 2022. The Court does not regard the participation in a supplementary Family Report as justifying the failure to comply with the Court’s orders in the filing of the consolidated trial affidavit.
This is a case where the Family Report of 4 May 2022 identified recommendations in relation to the parenting orders, but were dependent upon the findings that might be made by the Court in relation to domestic violence. The recommendations in that Family Report included the possibility of reunification counselling and identified views of the almost-adult children that they were not supportive of ongoing time with the applicant father.
The supplementary Family Report made the following recommendations:
(a)that the children live with the mother and the mother have sole parental responsibility; and
(b)depending on the findings that might be made in respect of the domestic violence, the undertaking of specialist domestic violence counselling; and
(c)depending on the findings that might be made in respect of the father’s emotional regulation, the undertaking of parenting counselling and courses by the father and
(d)the possibility of psychiatric assessment of the father and his mental health.
In determining to proceed in relation to an undefended hearing, the Court took into account the following law; Lanceley & Lanceley [1994] FamCA 94 as affirmed in A & Z [2006] FamCA 179 at [66] and Zane & Allen [2008] FamCAFC 115.
66. The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
“A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
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. Nevertheless, the proceedings in such a case are clearly ‘undefended’, and it would be a misuse of language to describe them otherwise. They certainly could not be described as ‘defended’.”
As indicated above the Court has taken into account the overarching purpose and objectives in s 190 of the FCFCOA Act and the principles in s 43 and s 69ZN of the Act. The Court is satisfied that there has been default under r 10.26 of the Family Law Rules, enlivening the powers under r 10.27. The Court is satisfied that this is an appropriate matter, in the interests of the administration of justice, in which to proceed as an undefended hearing and has accordingly made an order to that effect.
The non-participation by the applicant father in terms of an attendance at the hearing is such that the Court is not in a position to have the benefit of the detailed evidence and testing in cross-examination that the Court would have expected in responding to the very serious allegations that have been identified, both in the respondent’s earlier affidavits and in the Family Reports.
The Court is satisfied that this is a case where the applicant was on notice of the orders being sought by the respondent in the amended response dated 9 February 2023. The Court is satisfied this is an appropriate matter in which to order that the matter proceed as an undefended hearing and is satisfied such an order is in the best interests of the children.
UNDEFENDED HEARING OUTLINE
The Court treated as being in evidence before it the respondent’s affidavit and documentary material identified in the case outline by the respondent and by the ICL, which, materially, included the Family Reports. Whilst the Court was aware of the content of the case outline filed on behalf of the applicant and the intended evidence of the applicant in relation to deciding whether to proceed as an undefended hearing, given the failure to comply with the Court’s order and failure to appear the Court has not accepted the applicant’s evidence or submissions as being before the Court for the purpose of the undefended hearing.
In the circumstances of the case, where the Court had the benefit of the case outlines for the respondent and the ICL and their evidentiary material the Court was satisfied that this is an appropriate matter in which to pronounce the Court’s orders and to reserve the Court’s reasons. The Court is also satisfied that these orders are in the best interests of the children.
CHRONOLOGY
The Court have set out the chronology as identified in the respondent wife and ICL’s case outlines;
Chronology of events Date Event 1983 The Father, Mr Curtis, born. 1989 The Mother, Ms Garnett, born. 1989 Mother’s partner, Mr B, born. 2005 Parents meet, commence cohabitation in Town C with the paternal grandparents. 2006 The child X born. 2007 Mother and Father relocated to City D for a year where they both participated in the use of marijuana, however, the father would go so far as to smoke in front of the children. 2008 The child Y born. 2009 Family moves back to paternal grandparents’ home in Town C. 2010 Paternal grandparents had argument with Father over escalating domestic violence, to which the Father replied with cursing and told the Mother to pack as they were moving. 2011 Family moved into E Street, Town F. 2011-2013 Father made an effort to be better and gain employment, however, eventually gave up, forcing Mother to get a job as a cleaner. 2013/2014 Mother becomes carer for Father after he injured his back. During this time, Father would withhold Mother’s bank cards and only give her sporadic access. 2015 Father began abusing the children; Father squeezed Y’s knees causing him distress and was only stopped after repeated punched from Mother to which he responded by shoving her. 2018 Mother commences work at a business at Father’s behest.
Father and Mother commence use of Ice on an “on and off” basis.2019 Father threatened to slap X before being seen about to punch Y, though may have already punched him. 12 June 2020 Mother and Father got in an argument after he had taken her phone. Father assaulted mother severely, evident by her head leaving a hole in a Gyprock wall. Mother went to the police and Father was charged with assaulting her and Y, an AVO was taken out and the Father was arrested. mid 2021 Mother allegedly stops using “ice” 31 March 2021 AVO matter and family violence charges against Father were due to be heard. Mother requested the AVO be dropped and her request was approved. 16 April 2021 Parents separate on final basis, Mother moves out, children remain with Father. 2021 Father created a fake Facebook profile to contact Mother, before using it to send her threats and then sharing the conversation with others in the hopes it would tarnish her reputation. 2021 Mother and Mr B began their relationship. 2021 Mother begins cohabitation with Mr B. 7 May 2021 Mother collected the children from G School after Father stated she would never see them again and she was concerned with their safety. 14 May 2021 Father filed a recovery order and on the first return date, consent orders were entered into. 27 May 2021 Orders made by consent: children live with Mother, spend time with the father – each weekend Friday to Monday morning 29 May 2021 – 31 May 2021 Children visited Father per interim orders. Children complained of the Father asking questions, his behaviour, his allegations that the Mother is crazy and that her friends and her mother are on drugs. Y said he doesn’t want to see his father again and threatened to kill him if he continued to hurt them. 31 May 2021 Children spend time with the Father for the last time. 31 May 2021 X disclosed that the Father used to punch her when they were all living together. 10 June 2021 Mother attended Town H Police to report her concerns for X and messages she received from Father. Late June 2021 Police attempted to speak with X however due to her low intellectual functioning were unsuccessful. Police also attempted to speak with the Father but were unsuccessful. Late 2022 Father charged with common assault for assault on Y in 2019. Present Mother and children live with Mother’s partner Mr B. RESPONDENT’S EVIDENCE
The respondent in her affidavit 9 February 2023 identified that the parents met in 2005 and having had three separations throughout the relationship separated on a final basis on 16 April 2021. The respondent described the relationship as very unpleasant and that the applicant had been very controlling, verbally abusive and physically abusive to her and about three years ago started to abuse the children.
The respondent recorded her son Y’s view that he is so scared of his father that if sent to see him he doesn’t know if you will come back alive.
The respondent identified controlling behaviour by the applicant in her interaction with her parents and verbal and physical abuse after visits from her mother. The respondent explained that she was treated as a play-thing by the applicant and regularly physically pinched until causing bruising as well as biting her. The respondent explained that she didn’t call the police until 2020 when she had extensive bruising to her arm and the applicant was charged with assault and an AVO was issued.
Following the birth of the second child X, the respondent identified the terms of verbal abuse by the applicant as well as being in fact unsupportive. The respondent recounted abusive behaviour by the applicant when the respondent was communicating with the applicant’s parents.
The respondent explained the deterioration in the relationship and three physical assaults by the applicant during her pregnancy with the first child, Y. The respondent described an incident with several knives being stabbed into the respondent’s father’s door as well as the applicant’s response to his parents endeavour to diminish his family violence. The respondent identified the marijuana use of both parties for a period in the relationship as well as the use of Ice. The respondent explained an injury occurred to the applicant’s back and that she became his carer and controlling behaviour in use of her credit card by the applicant.
The respondent explained the commencement of work at a business at the respondent’s request. The respondent explained that X is developmentally delayed and explained the home environment as the children grew up and controlling behaviour of the respondent.
By 2015 the respondent deposed to the applicant staring to physically abuse the children, including rants, threats and hitting the respondent. There was a physical assault on Y by the respondent in about 2015 whilst on the couch in the lounge room.
The applicant described verbal abuse to X and physical violence to Y by the applicant following a school ceremony in 2019.
The respondent described assault by the applicant upon her on 12 June 2020 that gave rise to the applicant being charged and an AVO being taken out to protect her as referred to above. The respondent explained the circumstances in which the applicant came to move back in and the circumstances in which the AVO was dropped.
The respondent explained her decision to leave on 16 April 2021 and her discussion with the respondent about the children and finding accommodation. The respondent explained the collection of her children on 7 May 2021 and the entering into of consent orders following the commencement of proceedings. The respondent identified the distress of the children after seeing the applicant between 29 May 2021 and 31 May 2021 and inappropriate communications by the applicant with the children. The respondent identified very hostile views by Y about his father and X reported being punched by the applicant. The respondent reported the allegations by X to the Town F police.
The respondent deposed to the applicant not having seen the children since May 2021 and that Y is due to give evidence in May of 2023 against the applicant in respect of assault charges on Y in 2019.
The respondent explained the current living arrangements with her partner, the schooling of the children, difficulties faced by X and the children’s health. The respondent explained further the drug use by the parties and her own diagnosis and current prescribed medicine. The respondent is not currently working and asked the Court to proceed as an undefended hearing in her affidavit.
The respondent had also completed a notice of risk filed on 8 July 2021 which reflects the substance of the allegations of domestic violence advanced in the respondent’s affidavit.
The respondent’s partner provided an affidavit sworn 9 February 2023 supportive of the respondent.
FAMILY REPORTS
The family report by Ms J dated 22 April 2022 explained that the applicant had not been interviewed and the steps taken to try and get him to engage. The report writer interviewed the respondent, her partner and the children. The children, due to their age, were able to provide a good account of their wishes and concerns. The report writer addressed the current arrangements, the family background and allegations of controlling, verbally and physically abuse behaviour by the applicant. The report writer noted the incidents reported by both Y and X and not having seen the applicant since May 2021, as well as the respondent’s view of the children being fearful of spending time with their father.
The report writer addressed the history of the dispute, the significant allegations of family violence and addressed the children’s safety and wellbeing. The report writer identified the primary issues concerning the family violence. The report writer recorded the respondent’s views that the children do not wish to spend time with their father. The respondent’s partner was reported as having a good relationship with the children. The report written noted that the respondent was 15 years old at the time of the commencement of the relationship with the applicant who was then 23 and described a controlling relationship. The respondent continues to be fearful of the applicant.
The report writer summarised the position in relation to X, her speech impediment and alleged a threat of self-harm by killing herself to be away from the applicant. X reported the applicant having bullied them and that she would not feel safe spending time alone with her father as well as identifying having been punched by the applicant. It was apparent X has good bond with and loves her mother.
Y described the respondent as a good mother and described physical and threatening behaviour by the applicant. Y indicated he did not wish to spend time with the applicant and explained incidents as to the applicant‘s domestic violence in relation to Y and his sister. The report writer explained her evaluation of the information obtained and made recommendations as summarised above.
The supplementary report dated 6 February 2023 took into account and interview with the applicant on 29 November 2022. The report written identified the applicant is on Job Seeker payments and has a medical exemption and explained her residence is in Town K. The report summarised the family background and the applicant’s views as to the mother having coerced the children and giving false information to rupture their relationship. The report recorded alleged concerns by the father in relation to the mother. The applicant has been diagnosed with several mental health conditions. The report writer recorded the applicant has stopped seeing his psychologist. The report noted primary issues as to family violence. The report writer recorded the applicant’s views and dispute as to financially controlling behaviour as well as disputing physical and verbal abuse.
The report writer identified the need for the Court to determine whether there had been violence and the risk of future violence. The report writer records that the respondent is now not supportive of the children having a relationship with the applicant. The report writer recorded the father’s dispute as to the allegations of family violence. The report writer identified the higher risk category from exposure of children to hostility and the father’s risk of relapse. The report writer opined that considerable weight should be given to the children’s views. The report writer noted Y had not moved from his position of not wanting to spend time with his father. The report writer recorded that her impression was the children had not been coerced by their mother. The report writer also explained the difficulty of counselling where a parent has not taken account of their own actions.
The report writer recommended that the children remain in the care of their mother, that she have sole parental responsibility and referred to the possibility of the father reflecting on his account and genuinely working on the issues raised and made recommendations as to the possibility of counselling if the applicant becomes engaged and addresses his own mental health concerns and referred to the possibility of supervised visits.
PARENTING ORDERS LAW
The Court has taken into account the principles in s 43, s 60B and s 69ZM of the Act. The Court has taken into account the statutory pathway in Goode v Goode [2006] FamCA136 at [65].
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. These are to ensure, as stated in s 60B(1) of the Act, that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, 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 for the child. The considerations by the Court are identified in s 65DAA of the Act.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act. The Court has also taken into account s 60CG of the Act to ensure the orders do not expose a person to an unacceptable risk of family violence. Family violence is defined in s 4AB of the Act and abuse is defined in s 4 of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. (emphasis added)
In Loddington at [173], Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering.”
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment 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. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally, the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
(i)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
(ii)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(iii)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(iv)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(v)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(vi)Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(vii)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(viii)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
(ix)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(x)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
(xi)Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
(xii)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
(xiii)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
(xiv)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
The Court has also taken into account that, in applying the primary considerations, greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of the children, the Court has taken into account the whole of the provisions of s 60CC of the Act, including the additional considerations. The Court is exercising its power to make parenting orders consistent with s 65D of the Act. The Court has considered whether this is an appropriate matter in which there should be equal shared parental responsibility under s 65DAA of the Act.
FINDINGS
The Court finds that the events identified in the above chronology occurred.
The Court accepts the respondent’s evidence in relation to the domestic history of the parties and in relation to the allegations advanced of family violence against the applicant.
In the circumstances the Court finds that the presumption under s 61DA of the Act has no application because there has been family violence and the presumption is rebutted. Accordingly, this is an appropriate case for the respondent mother to have sole parental responsibility.
The Court is also satisfied on the evidence given the family violence that it is appropriate that the children live with the mother.
The Court turns to the presumption of the parties having a significant, meaningful relationship with both parents under s 60CC(2)(a) of the Act. The Court has also taken into account section 60CC(2A) of the Act, that the Court is to give greater consideration to the need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
In the circumstances of this case, given the acceptance of the domestic history and family violence as identified by the applicant, the Court is satisfied that this is an appropriate case where the Court should not make any order requiring the children either to engage in therapy or to spend particular time with the father. The Court notes the children have spent no time with the father since May 2021.
The Court has taken into account Y’s strongly held views that requiring him to spend time with the father would not be conducive to the development of a rewarding relationship. The Court has taken into account X’s specific vulnerabilities and her disclosure of abuse by the father, which the Court accepts and finds it is unlikely that imposed time with the father will result in the development of a meaningful relationship with the father.
The Court has accepted the mother’s description of the significant family violence, including abuse of the children, physical abuse, verbal abuse and control. The Court has accepted that the children reported the father’s anger and violence which the Court finds occurred. The Court has taken into account that there is an outstanding assault charge in relation to the father and Y. The Court finds the father has demonstrated significant emotional dysregulation including, in that regard, the threats to kill his own father and stabbing knives into the back of the door of the paternal grandparents’ home.
In these circumstances, the Court finds that it is unlikely that orders could be made that would sufficiently protect or safeguard the children from harm from the risk arising from contact by the father of the children under parenting orders. That harm is in the nature of emotional, psychological and physical to the respective children if forced against their wishes, or attempted to be forced against their wishes to spent time with the father. Supervised access will only prevent the risk of physical harm. Further emotional and psychological harm to the children from forced contact with the father is likely to cause serious long term problems for the children and significantly diminish achieving their optimum or full potential. The Court finds that the severity or magnitude of the risk to the children is sufficient to outweigh the possible benefit of a relationship with the father. The Court finds give the views of the children that likelihood of harm to the children from being required to spend time with their father, contrary to their wishes, is sufficiently high to be an unacceptable risk and outweighs any benefits intended by parenting orders for contact and time with the father.
The Court has also taken into account the children’s views under s 60CC(3)(a) of the Act. And that Y wanted to know that he is happy where he is and does not want to spend time with his father. The Court has taken into account that X loves her mother and likes spending time with her and that X said that the father used to punch her and presented as fearful of the father.
The Court accepts that Y, being fifteen years old, his views ought to be given significant weight. Notwithstanding some intellectual impairment in relation to X, who is seventeen, the Court also accepts that her views should be given significant weight. The family consultant also opines that considerable weight should be given to the children’s views.
The Court has taken into account the nature of the relationship with the mother under s 60CC(3)(b) of the Act, which is warm and beneficial, and the absence of spending time with the father since May 2021.
The Court has taken into account under s 60CC(3)(c) and s 60CC(3)(ca) of the Act, the mother had sole parental care of the children since May 2021 and despite orders permitting the father to spend time, the father has not taken the opportunity to do so.
The Court has taken into account the effect of a change in the circumstances under s 60CC(3)(d) of the Act, in that the orders would not involve any change to the children’s circumstances as they have not spent time with the father in the last two years.
The Court has taken into account any practical difficulty and expense under s 60CC(3)(e) of the Act and that the parties live close to one another.
In relation to parental capacity under s 60CC(3)(f) of the Act, the mother has been the primary carer and is child-focussed and has attempted to be protective of the children in adverse circumstances. The mother does have history of drug use and has been diagnosed with a mental health condition and is receiving the benefit of ongoing counselling. The Court does not accept that the mother is not properly able to discharge her role in relation to parental responsibility and the children living with her. The father has not taken proper steps to enhance and improve his parental capacity.
The Court has taken into account the characteristics of the children under s 60CC(3)(g) of the Act, with Y still being in Year 10 at high school and X in Year 11 at high school in a special support class.
This is not a case to which s 60CC(3)(h) of the Act applies.
The Court has taken into account the attitude of the children and the responsibilities demonstrated by the mother under s 60CC(3)(1) of the Act and the failure by the father to engage when give the opportunity to do so.
In relation to family violence under s 60CC(3)(j) and s 60CC(3)(k) of the Act, the history which the Court has accepted of the applicant identifies significant family violence, physical abusive, verbal abuse, controlling and coercive behaviour and there is an outstanding assault charge in relation to the applicant against Y. The Family Report identified expressions of the father’s angers and violence towards them, which the Court accepts. The Court finds the father has demonstrated significant emotional dysregulation, as identified above. The Court has taken into account that there is an AVO issued against the father, as a defendant. There was an AVO taken out against the father, which was dismissed in 2021.
The Court has taken into account under s 60CC(3)(l) of the Act that this is in the best interest of the children that the proceedings are finalised. The Court has taken into account the father’s failure to engage in the proceedings and that it is in the interest of the parties, as well as the statutory obligation of the Court, to bring the proceedings to an end and to provide stability and the children in their final years.
The Court is satisfied that the children are safe and settled in the mother’s care. The Court finds that there is a real risk of physical and emotional harm to the children if required to attend and spend time with the father. The risk of physical and emotional violence is of such a magnitude in the circumstances of the present case, given the history and the findings made by the Court in respect of domestic violence, that the Court is satisfied it is not in the best interest of the children to require the children to spend time with the father.
Nor is the Court satisfied that orders should be made for the children to attend counselling in the circumstances of the present case and finds that any such counselling is not likely to assist in developing a meaningful relationship. The potential detriment and unacceptable risk to the children outweighs the benefit of any such order. The Court has taken into account, in that regard, the failure of the father to engage and the further impact on the children of an ongoing failure by the father to engage in steps to advance that meaningful relationship with the children.
The Court is also satisfied that this is an appropriate case in which to make orders restraining the father from approaching the children or the mother.
It is for these reasons that the Court is satisfied that the orders pronounced on 23 February 2023 are in the best interests of the children.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 24 March 2023
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