DELANEY & BRIGHT

[2015] FamCA 860

FAMILY COURT OF AUSTRALIA

DELANEY & BRIGHT [2015] FamCA 860

FAMILY LAW – CHILDREN – Final parenting orders – Where the father filed a notice of discontinuance and the hearing took place on an undefended basis – Allegations of family violence – Where the father was previously convicted of sexually indecent conduct towards one of the three children and was incarcerated for these offences – Where the father has not seen or communicated with the children for a period exceeding four years and all children strongly oppose having any contact whatsoever with the father – Mother applies for various orders including that she have sole parental responsibility for the children, the father be restrained from contacting or approaching the mother and children, and the children’s surnames be changed to the mother’s maiden name – Where the orders sought by the mother for sole parental responsibility, for the children to not have any time or communicate with the father and changing the children’s surnames are supported by the ICL and family report writer – Determined that the orders sought by the mother and ICL are in the best interests of the children – Orders made.

Family Law Act 1975 (Cth)

Allesch & Maunz (2000) 203 CLR 172

APPLICANT: Ms Delaney

RESPONDENT: Mr Bright

INDEPENDENT CHILDREN’S LAWYER: Ms Lilley

FILE NUMBER: BRC 8013 of 2013

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 October 2015

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lilley, Legal Aid, Brisbane

Orders

IT IS ORDERED THAT:

1. The Mother have sole parental responsibility in respect of all major long-term issues for the children, B born on … 2000, C born on … 2003 and D born on … 2006 (“the children”).

2. The children live with the Mother.

3. The children spend no time and have no communication with the Father.

4. The Father is hereby restrained or injuncted from being:

   (a)       within 200 metres of the Mother or the children;

   (b)       within 1 kilometre of the Mother’s residential address or the children’s          residential address;

   (c)       within 1 kilometre of the Mother’s place of employment or the            children’s school.

5. The children from the date of this Order may be known by the surname DELANEY, and that the Mother be permitted in her exercise of sole parental responsibility for the children, to request of the Registrar of Births, Deaths and Marriages, that the surnames of the children be changed from “Bright” to the surname “Delaney”, and the Registrar of Births, Deaths and Marriages is requested to give effect to any application made by the Mother to change the children’s surnames, and it is further requested of the Registrar that any requirement for the children’s father’s consent to or signature on such application by the Mother be dispensed with.

6. The Mother be permitted in her exercise of sole parental responsibility for the children to seek to obtain and to apply for Australian Passports for the children, and the Australian Governmental Authority responsible for the issue of Australian Passports is requested to give effect to this order and it is further requested of that Authority that any requirement for the children’s father’s consent to or signature on such application by the Mother be dispensed with.

7. Leave is given to the Independent Children’s Lawyer to provide to the

   
   

   Director-General of the Department of Communities, Child Safety and Disability Services, Queensland, copies of the following sealed Court documents:

   (a)       affidavit of Mr E filed on 25 March 2015;

   (b)       affidavit of Ms F filed on 4 August 2015;

   (c)       any final Orders made on or following the default trial on 14 October   2015; and

   (d)       the Reasons for Judgment delivered today.

8. Leave is given to the Mother to provide to any school attended by the children a copy of the said sealed final Orders.

9. All outstanding applications be otherwise dismissed and removed from the pending cases list.

10. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delaney & Bright 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 BRISBANE

FILE NUMBER: BRC 8013 of 2013

Ms Delaney

Applicant

And

Mr Bright

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children, B born in 2000 who is currently 15 years of age; C born in 2003 who is currently 12 years of age; and D born in 2006 who is currently nine years of age.

2. The parties named in the proceedings are the applicant, Ms Delaney, the mother of the children (“the mother”), Mr Bright the father of the children (“the father”) and the Independent Children’s Lawyer (“ICL”) appointed pursuant to s 68L of the Act to independently represent the children’s interests in the proceedings.

3. The trial of the proceedings today proceeds on an undefended basis.  The rules of procedural fairness and natural justice need to be considered when determining a matter on an undefended basis.  Within the rule of procedural fairness lies the indispensable requirement of the Court system of justice that a party potentially affected by a decision or orders of the Court have the opportunity to be heard as highlighted by Kirby J in Allesch & Maunz (2000) 203 CLR 172. Where a person’s interests may be adversely affected by a Court’s decision, that person must be afforded an opportunity to place before the Court material information and submissions before the decision is made.

4. However, as is emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness not that the Court must receive evidence or submissions on behalf of that party before making orders.  The principle does not require the decision maker to actually hear from that party.  As Kirby J stated in Allesch & Maunz (supra) at [38]:

   …Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

5. In this case on the evidence before me I am comfortably satisfied that the father has had ample opportunity to be heard if he chose to avail himself of that opportunity.  The proceedings have been on foot for a significant period of time, and on 2 July 2014 the father filed a Notice of Discontinuance of his Response and the orders sought in his Response filed in answer to the mother’s Initiating Application.  On 12 May 2015 the father filed a Notice of Discontinuance in relation to an Application in a Case he had filed on 3 July 2014.  The father has not actively participated in the proceedings.  And his Notices of Discontinuance evidence his intention not to participate nor to oppose the orders that are sought by the mother and the ICL. 

6. In those circumstances, the Court is comfortably satisfied that the matter can be heard and determined on an undefended basis with all that entails namely that the evidence of the mother and that relied upon by the ICL is not placed into contest by any opposing party, namely the father.

7. Part VII of the Act provides the statutory framework in which this Court exercises its powers to make parenting orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved and the principles that underlie those objects.

8. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

9. Section 60CC of the Act identifies the “primary considerations” in subsection (2) and the “additional considerations” in subsection (3) that the Court must consider in determining what is in a child’s best interests. The primary considerations set out in section 60CC(2) are:

   (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. 

10. The Court must place greater weight on the need for protection referred to than on the benefit to a child of having a meaningful relationship where those two considerations are in contest.  I would observe here that, for reasons which will be further expressed, I am not satisfied on the evidence before me that there would be benefit to the children currently in having a relationship with the father or at least that it is possible on the current state of the evidence for any such relationship to be meaningful in a positive sense.  I am comfortably satisfied on the evidence before me that there is a need to protect these children from potential harm. 

11. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. That section expressly provides that the power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) of the Act requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. However that presumption does not apply in circumstances of abuse or family violence within the meaning of the Act, and 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.

12. For reasons which follow I am satisfied that the presumption does not apply in the circumstances of this case given the evidence, uncontested, of there having been family violence in the course of the relationship and the evidence that the children were exposed to such family violence.  I am satisfied on the expert evidence that is before me, which I accept, that the children’s exposure to domestic and family violence during the relationship has probably caused them emotional and psychological harm.  Even if I were not so satisfied I would for other reasons expressed be comfortably satisfied that it would not be in the best interests of these children to apply any such presumption. 

13. By her Amended Initiating Application filed on 25 August 2015, the mother seeks orders for sole parental responsibility for the children; that the children live with her; and for the children to spend no time and have no communication with the father.  Further orders are sought by way of restraint of the father from coming within 200 metres of the mother and children, and one kilometre from the residential address of the mother and children, and one kilometre of the mother’s place of employment and the children’s school.  The mother also seeks orders enabling her to change the children’s surnames from Bright to the mother’s surname Delaney and for the mother to have the unilateral ability to obtain an Australian passport for each of the children. 

14. By her Case Information Document filed on 17 September 2015 the ICL consents to orders being made as sought by the mother with the exception of the order concerning restraints of the father coming within the distances referred to.  However the ICL does not oppose orders being made imposing such restraints. 

15. Moreover the ICL seeks some further orders with respect to the ICL having leave to provide the Director-General of the Department of Communities, Child Safety and Disability Services, Queensland (“DoCS”) with copies of identified sealed Court documents including final orders made as a consequence of this hearing, and I would infer including the Reasons for Judgment I am now delivering.  The mother expresses her agreement with and support of those further orders sought by the ICL. 

16. By way of brief background the parents met on 25 April 1999 and married in 2000.  Separation on a final basis occurred on 6 November 2010 and the parents’ divorce was pronounced on 4 January 2014.  The parents lived separated under the same roof from 6 November 2010 until the mother left the former matrimonial home with the children on 24 January 2011. 

17. The mother gives evidence of her role with the children in that she adopted the role of a stay at home mother until 2010 and was thus the primary carer for the children whilst the father worked from home as a “day trader” which I understand to mean trading in the stock market.  The mother resumed work in 2010 as a teacher and the father adopted some role with respect to home duties in association with the children.  But the mother maintains that the father was of limited assistance around the home and in his involvement with the children.  More importantly the mother provides evidence that her relationship with the father was marred by significant acts of verbal and physical domestic violence some of which are detailed in a diary from 2007 which appears at Annexure “1” of her affidavit filed 6 February 2014. 

18. I accept the mother’s evidence in these respects.  I note that historically protection orders have been made naming the mother as the aggrieved and the father as the respondent.  In particular I note in passing that on 13 December 2010 an order was applied for on the mother’s behalf by police officers after attending the home in response to an emergency call where the call was disconnected.  This call is said to have been made by the child B in the course of an assault by the father upon the mother.  The mother applied for this order to be varied on 7 July 2011 requesting that the children be named as protected persons under the order. 

19. A temporary variation to domestic violence orders was made on 22 December 2011 which names the mother and children as protected persons.  Again a domestic violence order of 24 February 2012 names the mother and children as protected persons as does a temporary protection order made on 13 December 2012.  An order made on 9 October 2013 names the children, the maternal grandmother, the mother’s partner Mr G and Mr G’s two children as protected persons.  As it happens there are no current protection orders in place due to the interim orders made by Cassidy J in the Federal Circuit Court on 15 April 2014 which orders imposed restraints upon the father from approaching the mother and children. 

20. Fundamental in the background to this case are the disclosures which C made on 4 July 2011 concerning sexually indecent conduct by the father towards C.  It is the case that none of the children have spent time with or had communication with the father since 4 July 2011, obviously now a period in excess of four years. 

21. On 17 May 2013 the father was convicted on two counts of indecent treatment of a child under 16, under 12, who is a lineal descendent in relation to the child C, and he was sentenced to imprisonment.  The father became eligible for parole on 16 February 2014 and was released on 29 April 2014.  The children C and B are said to have first made disclosures to the mother about the father’s conduct towards them on 4 July 2011.

22. The mother states in her affidavit filed in the Magistrates Court of Queensland, and sworn on 23 January 2012, the details of the disclosures made by C which need not be articulated.  That same day B is said to have told the mother that when he visits the father the father generally sleeps in the same bed as him with his father sleeping naked.  B then reported being scared of going to sleep when visiting the father.  As a result of these disclosures the mother filed an application to vary the current protection order on 7 July 2011.  And obviously, as a consequence of these disclosures, this led to the criminal charging of the father and ultimately his conviction and imprisonment. 

23. The sentencing remarks of her Honour Dick J SC of the District Court of Queensland are included in the evidence.  Her Honour noted there that the father’s actions were “…a gross betrayal of trust and a gross betrayal of the relationship between father and daughter”.  I respectfully agree with and adopt her Honour’s remarks.  As already referred to none of the children have had contact with the father since 4 July 2011 and understandably the mother received advice from Child Protection officers to that effect.  It is clear on the evidence before me that since that time the mother has amply provided for the children’s physical, intellectual and emotional needs and has capably made decisions in relation to the children’s health and welfare independently of any input from the father. 

24. The mother deposes to the father’s conduct as having had a profound impact upon the children and of the children remaining in fear of the father and having been psychologically harmed as a result of being witness to the domestic violence that occurred during the relationship and the abuse which has been referred to.  The mother’s contentions in this respect are supported by the expert family report writer.  I accept that evidence. 

25. In circumstances where it seems the father contested the criminal charges C in particular, but also B, had to endure the likely traumatic experience of having to give evidence in criminal proceedings against their father.  There has been reference during the course of the hearing to C having to endure that trauma on two occasions.  That was trauma that might have been avoided had the father taken another course with respect to the criminal charges upon which he was ultimately convicted. 

26. The mother’s evidence is to the effect that the children resent even hearing the father’s surname, let alone having to use it, and at school and extracurricular activities adopt the name Delaney whenever they can.  They go by that name and have been known by that name now for some significant period of time. 

27. In circumstances where orders for no time or communication with one parent are sought it is sometimes relevant to consider any opportunities for the children to have some contact with extended family members on that parent’s side.  In this case, however, the paternal grandparents are both deceased, and on the evidence the father’s only known relative is an estranged brother who left Australia some years ago. 

28. The children’s current circumstances see them living with their mother who has essentially cared solely for them throughout their lives together, now, with her partner Mr G.  Mr G has two children from a previous relationship and shares the care of those children.  Despite all they have experienced, and as a credit it seems to me to the mother, the children are reported to be high achievers in their schooling and all participate in various sporting and extracurricular activities. 

29. On the evidence I have no concerns about the current care arrangements for the children in which they are obviously thriving.  There cannot be any doubt that the children’s needs are being met by the mother with the assistance of her partner Mr G.  Similar conclusions are reached and expressed by Ms F the family report writer which I accept. 

30. In terms of expert evidence the Court is assisted by the reports of Mr E, a psychologist whose affidavit was filed on 25 March 2015 and a report by Ms F filed on 4 August 2015. 

1. Mr E was engaged to prepare a sexual risk assessment report in relation to the father.  Notably Mr E refers in his report to the father being reluctant to admit to fault and perhaps not even willing to admit faults to himself.  Mr E noted a tendency in the father to minimise any negative impact that his actions may have on other people and also on himself. 

2. Mr E noted the father’s interest and motivation for treatment to be below average in comparison to adults not seen in a therapeutic setting and a great deal lower than an adult seen in a therapeutic setting.  Mr E opines that these responses of the father suggest that he is satisfied with himself as he is and sees little need for changes to his behaviour.  Mr E in using one of the mechanisms or tools of assessment assessed the father to being prone to minimise or deny his criminal conduct.  Mr E expresses the opinion that the father has failed to gain any insight about his offending and presents with only a superficial understanding or acknowledgement of the nature of his offending. 

3. Mr E raises an aspect of psychopathy in relation to the father’s functioning.  Mr E specifically noted that the father had not engaged in a sexual offenders treatment program, and if he were to do so, the father may develop some further insights surrounding his offending behaviours and in particular in terms of its affect upon C.  Such engagement in treatment might add some confidence to the assessment that the risk of the father re-offending is truly low.  But of course that is academic in circumstances where the father has not engaged in such treatment. 

4. There is before the Court the Magellan Report which was admitted as an Exhibit which corroborates the mother’s case concerning family violence and the children’s exposure to family violence during the relationship and the prospect that it has caused them psychological and emotional harm. 

5. Ms F, the expert family report writer, undertook interviews of the mother, her partner and the children on 9 July 2015.  The father notably elected not to present himself to participate in that report process. 

6. In summary Ms F evaluated the following:

   a)The father’s alleged abuse of alcohol is a concern in terms of potential risk to the children and further information would need to be obtained in relation to his current alcohol and/or drug use before there could be any assessment as to the current impact on his ability to safely care for the children.

   b)It is not possible to assess on the information available whether the father’s discontinued involvement in these proceedings represents a lack of commitment to pursuing a relationship with the children or acceptance that his relationship with the children has been irreparably damaged.

   c)All three children have distressing memories of the father’s behaviour and it is evident from their comments that they have all been exposed to domestic violence.  It is assessed that the children were frightened by the father’s behaviour towards them and the mother. 

   d)C and B are aware that they gave evidence which was used in Court against the father and B presents as concerned by the potential for the father to seek retribution against him. 

   e)The children present as being settled and happy in their general lives, are achieving well academically and participate actively in sport.  Each of the children have an established group of friends.  It is assessed that disrupting this lifestyle would have a negative impact on the children.

   f)It has been four years since the children last interacted with their father and have moved on with their lives.  The children present as viewing the father as part of their past and are disconnected from him.  Their preference to use Delaney as a surname reflects their wish to distance themselves from their father and represents an opportunity for them to have a fresh start. 

   g)All three children rejected having any interaction or relationship with the father.  The children did not present as having been “coached” or influenced in their comments and were able to give examples from their experience.  It is assessed that there was a dynamic of realistic estrangement of the children and the children had their own reasons for their opinions of the father. 

   h)B presents as firm in his views and clear in his reasons for these. 

   i)C presents as more emotional than B, however it is significant that she was the victim of inappropriate behaviour of the father.  Her fears and concerns about the father present as having a realistic basis and she presented as firm in her position. 

   j)D is at an age and developmental stage where he does not yet have the capacity to fully understand the long term implications for his comments, however presented as genuine in his concerns about the father. 

   k)The mother has demonstrated an ability to ensure the children’s physical and emotional needs are well met and the children present as being happy and well cared for. 

   l)Mr G presented as supporting the mother in her parenting and to have developed a positive relationship with the children.  He presents as committed to providing opportunities for the children and ensuring their needs are met. 

   m)The children’s relationship with the father presents as significantly damaged and there are no indicators that he is able to provide appropriately for their emotional or physical needs. 

   n)There are substantial barriers to the mother and father’s ability to make joint decisions.  There is no trust between them and the mother presents as having a considerable level of distrust in the father.  The domestic violence issues reflect a power imbalance between the mother and father. 

7. Ms F concludes her report in recommending that the children remain living with the mother and continue to not spend any time or communicate with the father.  Further it is that expert’s recommendation that the children’s surnames be formally changed to Delaney.  I have no hesitation in accepting the expert opinions of Ms F. 

8. Much of the foregoing resonates with one or more of the statutory considerations expressed in s 60CC of the Act. I have earlier referred to the doubt that now exists about there being any current prospect of the children having any meaningful relationship with the father. But in any event he has not sought to pursue orders providing for such a relationship, and on my findings there is a need to protect the children from harm which assumes primacy.

9. The orders that are sought by the mother and the ICL plainly meet and are consistent with the views that have been expressed by the children, and obviously with respect to the older two children they are at an age and a level of maturity where significant weight should be accorded to their views. 

10. Plainly, the children have a good relationship with both the mother and her partner Mr G and currently no relationship with the father.  It is clear that the father has failed to take the opportunity to participate in these proceedings and thus to participate in making decisions about the children or spending time with or communicating with them.  Equally clear, that involves a failure on the part of the father to fulfil his parental obligations with respect to the children. 

11. The orders that are made in terms of orders being made consistent with the ICL and mother’s stated positions will have no likely effect upon the children which is adverse in that they will continue to experience the care of their mother, will continue to experience having no time or communication with the father, and will have the opportunity to be known by their preferred surname. 

12. In my judgment on any review of the statutory considerations referred to the orders can be seen to plainly meet the best interests of the children, and for those reasons, orders will be made in terms of the orders sought by the mother in her Amended Application referred to together with orders as sought by the ICL in the draft provided to the Court today supplemented by inclusion of paragraph 1(d) referring to these Reasons for Judgment being provided to DoCS.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 October 2015.

Associate: 

Date:  15 October 2015