Duvall & Duvall
[2024] FedCFamC2F 1395
•9 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duvall & Duvall [2024] FedCFamC2F 1395
File number(s): PAC 5213 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 9 October 2024 Catchwords: FAMILY LAW – PARENTING – Undefended hearing as against the father – Where the paternal grandfather and paternal uncle make the same application for time with the child – Findings of family violence – Mother’s evidence mostly uncontradicted – Father incarcerated at the time of hearing – Father pled guilty and convicted of a serious criminal offence relating to a member of the mother’s family –Where the father has not spent time with the child since his incarceration – Child to spend no time with the father or the paternal family – Where order for the mother to have sole decision-making for long-term issues is in the best interests of the child Legislation: Family Law Act 1975 (Cth) ss 4AB(3), 60CC, 60CG, 61C, 61D, 61DAA, 64C Cases cited: Aldridge & Keaton (2009) FLC 93-421
Bain v Bain (2017) 319 FLR 119
Maldera v Orbel (2014) FLC 93-602
Mizushima & Crocetti [2024] FedCFamC1F 113
Valentine & Lacerra (2013) FLC 93-539
Division: Division 2 Family Law Number of paragraphs: 192 Date of last submission/s: 24 July 2024 Date of hearing: 11-12 June 2024 Place: Parramatta Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Bell Lawyers Appearance for the First Respondent: No appearance Counsel for the Second Respondent: Mr Rosic Solicitor for the Second Respondent: S & R Lawyers Counsel for the Third Respondent: Mr Rosic Solicitor for the Third Respondent: S & R Lawyers Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law ORDERS
PAC 5213 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DUVALL
Applicant
AND: MR DUVALL
First Respondent
MR B DUVALL
Second Respondent
MR C DUVALL
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
9 OCTOBER 2024
THE COURT ORDERS THAT:
1.All prior parenting Orders are discharged.
2.The mother is solely responsible for decisions about major long-term issues in relation to X, born 2018 (‘child’).
3.The child live with the mother.
4.The child spend no time with the father.
5.The child spend no time with the second respondent.
6.The child spend no time with the third respondent.
7.The mother may apply for a passport for the child without first obtaining the consent of the father.
8.The mother is solely responsible for making decisions in relation to the child for the purposes of applying for and being issued with an Australian passport for the child.
9.For the purposes of s 11 of the Australian Passport Act 2005 (Cth), the child is permitted to have an Australian passport.
10.The mother be permitted to take the child from the Commonwealth of Australia to such locations as she shall determine without any requirement to disclose to the father such locations or destinations.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), an injunction is hereby issued restraining the father, Mr Duvall born 1988, whether by himself, his servants, or agents from:
(a)Entering or remaining in a place of residence, employment, or education of the mother, Ms Duvall born 1986, or the child, or a place where the child is receiving or attending to receive the benefit of medical, educational, or other professional services, or from attempting to enter such place or places;
(b)Using a carriage service or social media to make contact with, message, or communicate with the mother or the child, or to publish or interact with via social media application, any material or content concerning the child or the mother for any reason;
(c)Taking possession of the child or attempting to do so; and
(d)Instructing or requesting any other person to do any of the acts referred to in Orders 11(a) to 11(c) inclusive.
12.The above Order 11 is made for the personal protection of the mother and the child and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Family Law Act 1975 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These proceedings concern little X, who is 5 years old. He lives with his mother, the applicant (‘mother’).
X’s father, the first respondent (‘father’), is in gaol for a serious criminal offence relating to a member of the mother’s family.
X’s father has chosen not to participate in these proceedings, despite having the opportunity of doing so.
X’s paternal grandfather, the second respondent, and uncle, the third respondent, want to spend time with X. The mother does not agree to this.
For reasons which are explained below, the Court finds that it is in X’s best interest that orders for no time be made with respect of his father, his paternal grandfather, and his paternal uncle, that is, that X not spend any time with any of the three respondents.
THE PROCEEDINGS
Documents relied upon
At hearing, the mother sought orders that she have sole parental responsibility for X, that he live with her, and spend no time with the father or the paternal family. The mother relied on:
(a)Child Impact Report dated 4 April 2023;
(b)Amended Initiating Application filed 12 September 2023;
(c)Affidavit of the mother filed 1 May 2024;
(d)Affidavit of Ms D filed 1 May 2024;
(e)Outline of Case Document filed 6 June 2024; and
(f)Written Submissions filed 10 July 2024.
The father has been incarcerated since mid-2022 and was incarcerated at the time of the hearing. An audio-visual link was provided to the father due to his incarceration, to enable his attendance remotely at the final hearing, but the father did not attend. The father also did not file any trial material in accordance with filing directions, or otherwise. The father did not participate in the final hearing and the hearing proceeded in his absence.
At hearing, the second and third respondents sought orders that X initially spend time with them every second weekend from 9am until 6pm on Sunday for a period of two months, and that after the conclusion of the two-month period, he spend time with them every third weekend from 3pm Saturday until 6pm on the following Sunday. On the final day of hearing after the lunch adjournment, the second and third respondents handed up a Minute of Order in the alternative which became Exhibit 10, which sought that X spend time with them on the last Sunday of every second month from 9am until 6pm. The second and third respondents relied on the following documents:
(a)Amended Response filed by the second respondent on 8 February 2024;
(b)Amended Response filed by the third respondent on 8 February 2024;
(c)Affidavit of the second respondent filed 29 November 2023;
(d)Affidavit of the third respondent filed 29 November 2023;
(e)Affidavit of Ms E filed 14 May 2024;
(f)Outline of Case Document filed 6 June 2024;
(g)Minute of Order, being Exhibit 10;
(h)Affidavit of Mr F filed 12 June 2024; and
(i)Written Submissions filed 24 July 2024.
The second and third respondents acted as a block, they were represented by the same lawyers, they had the same application, they relied on the same evidence, and the same submissions. They were parties in the same interest.
The Independent Children’s Lawyer’s (‘ICL’) case was that the mother have sole parental responsibility for X, that X live with the mother and spend no time with the father, the second respondent, or the third respondent. The ICL relied on:
(a)Outline of Case Document filed 6 June 2024; and
(b)Written Submissions filed 26 June 2024.
Exhibits
The exhibits were as follows:
(a)Exhibit 1 being the Child Impact Report dated 4 April 2023 by Ms G.
(b)Exhibit 2 being the exhibits identified in the Affidavit of Ms Duvall sworn 30 April 2024 together with the index to those exhibits.
(c)Exhibit 3 being annexure A to the Affidavit of Ms E filed 14 May 2024.
(d)Exhibit 4 being a Corrective Services call log for Mr Duvall MIN #...24.
(e)Exhibit 5 being a Corrective Services offender visit for Mr Duvall MIN #...24.
(f)Exhibit 6 being a letter from the ICL to the father dated 14 November 2023 care of Mr B Duvall at H Street, Suburb J, being pages 3 to 8 of the ICL’s tender bundle.
(g)Exhibit 7 being Court Orders dated 30 March 2021 made by Registrar Bartlett between Ms Duvall and Mr Duvall in respect of property.
(h)Exhibit 8 being historical title searches for the properties being Lot 1 in DP #...64 and Lot 125 in DP #...49.
(i)Exhibit 9 being a certification of listening transcript and transcript for 7 July 2022 being 54 pages plus certification being pages 36 to 89 of the ICL’s tender bundle.
(j)Exhibit 10 being a proposed Minute of Order in the alternative together with the Affidavit of Mr F.
(k)Exhibit 11 being a text exchange between the mother and Ms E dated 17 December 2020, 25 December 2020, and 29 November 2021.
(l)Exhibit 12 being the ERISP of the father being pages 113 to 118 of the ICL’s tender bundle.
(m)Exhibit 13 being the Sureties being pages 159 to 166 of the ICL’s tender bundle.
(n)Exhibit 14 being NSW Police Force submissions in respect of application for bail, being pages 153 to 155 of the ICL’s tender bundle.
(o)Exhibit 15 being police statements of Ms Duvall dated 14 September 2022, being pages 156 to 158 of the ICL’s tender bundle.
(p)Exhibit 16 being three letters to the father from the mother’s solicitors serving the trial affidavit of the mother, affidavit of Ms D psychologist, the mother’s case outline and costs notice, and three letters to the Governor of K Correctional Facility from the mother’s solicitors dated 30 April 2024, 1 May 2024, and 6 June 2024.
(q)Exhibit 17 being service of documents on the father directly to the father at L Correctional Facility pursuant to directions of 19 September 2023, to enclose the directions for an amended response, affidavit, and the ICL’s minute of order, being pages 9 to 14 of the ICL’s tender bundle.
(r)Exhibit 18 being two letters dated 3 June 2024 serving the ICL’s tender bundle on the father at K Correctional Facility.
(s)Exhibit 19 being two letters dated 6 June 2024 to the father, care of K Correctional Facility, enclosing the ICL’s case outline document.
(t)Exhibit 20 being text messages between Ms M and Ms N 2019-2020, text messages between Ms M, Mr Duvall, Mr C Duvall, Ms E, Mr B Duvall, and Ms N 2020, and text messages between Ms M and Ms E 2019.
Witnesses
The mother gave evidence and relied upon the evidence of her treating psychologist, Ms D. Both the mother and Ms D were cross-examined.
The father did not attend the hearing nor had he filed any evidence. The hearing proceeded undefended against him.
The second and third respondents both gave evidence, and further relied upon the evidence of Ms E, the wife of the third respondent. All three witnesses were cross-examined. The paternal grandmother was not a witness in the respondents’ cases.
None of the parties nor the ICL sought to cross-examine the Child Impact Report writer, Ms G (‘Ms G’).
EVIDENCE AND FINDINGS
Where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, the evidence should be accepted.[1] It is so in respect of the mother’s evidence.
[1] Bain v Bain (2017) 319 FLR 119 at [112].
The mother was born in 1986 and is 38 years of age. She works as a health care professional.
The father was born in 1988 and is 35 years of age. The father is incarcerated at K Correctional Facility.
X lives with the mother and does not communicate or spend any time with the father or the paternal family.
The mother and the father (collectively ‘the parents’) met in or around 2012. At the time, the mother was employed as a health care professional at O Hospital and the father was a tradesperson who ran his own business.
The parents were married in 2017.
In 2018, X was born at P Hospital.
The mother remained in hospital with X for three nights, after which time she and X were discharged and taken home by the father. After arriving home, the parents got into an argument and the father left the home and did not return until the following morning.
The mother took 9 months of maternity leave. During that time, she was X’s primary carer whilst the father worked full-time.
The mother returned to work on a part-time basis for one day per week after her maternity leave ended. The father cared for X when he was not working. When both the mother and the father were working, the paternal grandmother cared for X.
Within days of X’s birth, the father started calling the mother names such as ‘bitch’, ‘fucken mole’, ‘dick head’, ‘fuckwit’, and ‘fucken slut’. This continued during the relationship. The father would also say to the mother ‘fuck off’ and ‘when are you going to commit suicide […]’.
In or around April 2020, the mother had a telephone conversation with the father about her brother’s partner who was pregnant at the time, during which the father said ‘I hope their baby dies’.
On 5 May 2020, a door at the parents’ home was nailed shut. The mother believed that this had been done by the father. It resulted in her being locked out of a section of her home. In his oral evidence, the third respondent stated that it was the second respondent who had nailed the door shut, and that he had done so for X’s safety.
On 28 May 2020, the parents separated on a final basis. At separation, the father remained in the parents’ former home and the mother moved with X to the maternal grandmother’s home.
In the first week post-separation, the maternal grandmother cared for X whilst the mother worked. After that first week, X was cared for by the father and paternal grandparents when the mother worked.
In the two months after separation, ‘incidents’ occurred at the maternal grandmother’s residence, for example, the main power switch would be switched off in the middle of the night and the bins placed on another property. The mother believed the father was behind those incidents, and she reported them to the Police who suggested that she install security cameras at the maternal grandmother’s residence.
In or around June 2020, the father commenced spending time with X for two nights per week. During cross-examination, the third respondent stated that he would attend changeover but did not indicate the number of times he attended or how often.
In or around July 2020, the father’s time with X increased to three nights per week.
In or around the end of July 2020, the father demanded that his time with X be increased to an equal time arrangement.
Upon attending changeover at the paternal grandparent’s residence to collect X in August 2020, the electric gate of the residence closed on the mother as she walked with X to her motor vehicle. The mother tried to contact the father and the paternal grandparents to request that the gate be opened, but no one answered her calls. The mother then placed X over the fence and then jumped over the fence herself to leave the property. During cross-examination, the second respondent stated that the mother lied about having to jump the gate, and that she actually went through the side gate. The second respondent disagreed with the proposition put to him that he had tried to lock the mother in, stating that the gate had automatically closed.
The mother arranged for security cameras to be professionally installed at the maternal grandmother’s residence in or around September 2020.
In October 2020, the father attended the maternal grandmother’s residence to collect his passport and birth certificate at changeover. The Court accepts the mother’s evidence that the CCTV footage captured the father walking into the backyard and taking a photograph of one of the CCTV cameras. The mother changed the changeover location to a public setting after this incident.
On one occasion after separation, the father verbally abused the maternal grandmother at changeover in the presence of the mother.
On at least two occasions in November 2020, the father spoke to the mother aggressively and swore at her loudly at changeover. The mother reported those incidents to the Police.
The parents had a disagreement during changeover in late November 2020, during which the father grabbed the mother’s right forearm, leaving a red mark. The mother then pushed the father back and stood back with her hands raised to prevent any further physical contact. X started crying during this incident. The mother reported the matter to the Police.
In or around late 2020, the mother started taking her grandparents, with her to changeovers and they attended changeover with her up until July 2021.
In October 2020, the father returned with X to changeover at 4:30pm, instead of at 9am as had been agreed between the parents.
On 9 November 2020, prior to the commencement of these proceedings, the parents attended a mediation.
In November 2020, under a post that had been shared by the maternal grandmother, where she wished the mother the best on her wedding day in 2017, a comment which read ‘It was not a great idea for her mother’ had been posted by a user named ‘Mr B Duvall’. During cross-examination, the second respondent denied having posted the comment and stated that he had never seen those words before. After that comment had been posted, the mother requested for her family to block the father’s immediate family on Facebook
During changeover in late November 2020, the father tried to close the door of the mother’s motor vehicle whilst her leg was outside of the vehicle. The father said to her ‘Listen you’re fucking denting the door you fucking bitch’ and ‘You stupid slut’. During changeover on the afternoon of the same day, the father punched the mother’s left hip whilst she was holding X and called her a ‘mole’. The mother reported the incidents to the Police. During cross-examination, the third respondent stated that he attended changeover in late November 2020 and did not see the father punch the mother. The third respondent also stated that conflict was not high at the time and that changeover was not messy. The Court accepts the mother’s evidence about the father’s actions.
On 17 December 2020, the mother received a text message from Ms E stating that she could not meet up with the mother for reasons ‘in respect to the family’. During cross-examination, the third respondent stated that Ms E informed him of the text exchange afterwards and that the text had nothing to do with him.
In or around early 2021, the mother began receiving text messages from the father that questioned her movements. During cross-examination, the mother stated that in or around 2021, her communication with the father ceased.
In or around February 2021, X commenced attending childcare.
On 9 February 2021, the parents attended a further mediation.
During changeover in March 2021, the father said to the mother ‘You went down [S Street]. Guess what [mother]? I know your car was down [S Street] and detoured into the Service Station and then into KFC’ and ‘I know where my car is at all times’.
On that same day, the mother received a text message from the father stating ‘Btw, your [sic] at [Suburb R] how could you pick him up?’. At the time, the mother had been driving a motor vehicle owned by the father’s business, which she drove until the parents finalised their property settlement in March 2021.
Prior to the commencement of these proceedings, on 30 March 2021 final property and parenting orders were made by consent. The final parenting orders provided for the parents to have equal shared parental responsibility and for X to live with the mother. The parents did not agree to final orders in respect of X spending time with the father, but rather agreed to interim parenting orders, that X spend time with the father for five nights a fortnight.
In or around April 2021, the mother commenced sessions with her treating psychologist, Ms D.
In April 2021, the mother had to work a night shift that was outside of her usual working schedule. The parents had changeover in the morning on that day and at 11:21pm that evening, the mother received a text message from the father stating, ‘[…] you had just come off night shift and you are working again anyways.’ The mother had not told the father that she was working that shift. The mother also stated that at around 8am the following day, at the conclusion of her shift, she returned to her motor vehicle and found her four tyres low in pressure.
When the mother dropped X off to daycare in late May 2021 and walked back to her car, she noticed the father there and hiding from her. The mother asked the father ‘Why are you here?’, to which he replied, ‘I’m taking pictures of my car and you being late’. The mother reported the incident to the Police.
Two days later, the father attended the maternal grandmother’s residence to collect the keys to his motor vehicle from the maternal grandmother and the mother’s brother, Mr U, in accordance with property settlement orders. The father had entered the garage and knocked on the internal door from the garage instead of using the front door. A minute or so after the father left, the power at the house turned off, with Mr U having observed the father walking away from the direction of the fuse box towards his motor vehicle. The mother’s evidence is that the CCTV footage showed the father reaching into the electrical box before the footage cut out.
The mother attended Region T Police Station to report the incident, after which a Provisional Apprehended Domestic Violence Order (‘ADVO’) was issued to protect the mother and maternal grandmother from the father. During cross-examination, the second respondent stated that when the father attended the maternal grandmother’s residence to pick up the keys to his motor vehicle, the father knocked on the door and nobody opened the door until he ‘turned the main off’. The second respondent also stated that the father did not touch the fuse and that he was aware of CCTV footage that showed the father reaching into the electrical box. The second respondent stated that the father ‘wanted her attention’. The second respondent also stated during cross-examination that he did not know an ADVO had been made against the father in late May 2021. There is no evidence that the second respondent was present at the maternal grandmother’s home on the day, and as such, it is inferred that his knowledge of what had occurred on that day came from the father.
In June 2021, the mother claimed that the father breached his ADVO after the mother received a text message from him that was not in relation to X.
In July 2021, the mother contacted the second respondent via telephone to open communication with the paternal family as she had struggled to communicate with the father. During cross-examination, the second respondent stated that the mother did not ring him and that he ‘did not receive any calls since she left’. The second respondent then stated during cross-examination that he did not know who he was speaking to on the phone in July 2021 as he ‘had the client number blocked’.
On 12 July 2021, the mother’s solicitors received a letter from the father’s solicitors requesting that, on behalf of the second respondent, the mother cease and desist from contacting the paternal family under any circumstances. During cross-examination, the second respondent conceded that he had requested for the father’s solicitors to send that correspondence on his behalf.
In July 2021, a final ADVO was made against the father for the protection of the mother and the maternal grandmother for a period of two years.
The parents had an argument in September 2021 at X’s daycare centre, which the mother subsequently reported to the Police.
Two days later, the father did not return X to the mother’s care at the conclusion of his time with him. Rather, the father returned X to her the following day.
In October 2021, X was returned to the mother’s care from the father’s care with abrasions on both knees, his right elbow, and the right side of his back. After questioning X, the mother claimed that he said ‘I fell off the motorbike’, ‘Daddy fell off the bike too and got hurt’ and ‘Daddy was crying’. X said he was not wearing a helmet at the time.
Two days later, the mother contacted the father via text message to query the abrasions she observed on X. The father told the mother via text message that X had fallen off his bike on the driveway.
On 18 November 2021, the parents attended a further mediation, with agreement being reached between them in respect of X’s parenting.
In or around November 2021, a decision was made by the Child Support Agency in relation to a Child Support Change of Assessment initiated by the mother. The mother initiated the change of assessment because she had been assessed to pay the father child support for most of 2021.
After the Child Support Change of Assessment decision was made in November 2021, the father sold his business to the second respondent for $100 in December 2021. During cross-examination, the second respondent stated that he had taken over the father’s business, the business ‘had nothing to do with child support’, and ‘the business got nothing to do with [X]’.
In December 2021, X was returned to the mother’s care wearing clothes, socks, and shoes drenched in urine, despite a clean set of clothes being available in his bag.
From about late December 2021 onwards, X began returning home and saying statements that ‘concerned’ the mother. The mother deposed that on one occasion X said, ‘You stole all of dad’s money’ and on another occasion, ‘I want to go back to dad’s’. The mother tried to speak with X about his feelings, during which X said words to the effect, ‘dad told me to say I want to go back to dads’.
The parents were divorced in late 2021.
X commenced attending counselling with Ms V at Region T Community Centre in or around January 2022.
On 11 March 2022, the parents filed an Application for Consent Orders, reflecting the agreement they arrived at during mediation on 18 November 2021. Requisition letters were sent out on 12 April 2022 and 25 May 2022.
Upon collecting X from the father in April 2022, X had a fever and vomited when they arrived home. The mother said that she contacted the father via text message in relation to X’s health but did not receive a response.
In mid-2022, the father was arrested and charged with a serious criminal offence relating to a member of the mother’s family, and for contravening an ADVO. There is no evidence as to when the mother found out about the father’s arrest and in what circumstances.
The father remains incarcerated at K Correctional Facility.
On 14 July 2022, the mother instructed her solicitors to write to the father’s solicitors and suspend his time with X. Since then, X has not spent time with the father or any members of the paternal family.
On 18 July 2022, the mother instructed her solicitors to write to the Court and withdraw her consent to the Application for Consent Orders filed on 11 March 2022.
On 19 July 2022, the Application for Consent Orders filed on 11 March 2022 was dismissed.
In September 2022, the second respondent and paternal grandmother each sent a letter of surety to the Supreme Court in relation to the father’s bail application at the time.
On 21 September 2022, the mother instituted parenting proceedings by way of an Initiating Application.
On 11 October 2022, the ICL was appointed.
On 19 October 2022, the father filed a Response to Final Orders, in which he sought that the mother’s Initiating Application be dismissed. On that same day, the second and third respondents each filed an Application in a Proceeding seeking to be joined as parties to the proceedings and for orders pertaining to time with X.
On 20 October 2022, interim parenting orders were made for the mother to have sole parental responsibility for X. In addition, all orders made on 30 Mach 2021 pertaining to X spending time with the father were suspended.
On 22 November 2022, the matter was listed for directions, during which a request was made for the Supreme Court file in relation to the father.
On 13 December 2022, the matter was listed for a mention, during which the matter was listed for interim hearing on 4 April 2023 to determine the Application in a Proceeding filed by the second and third respondents on 19 October 2022, filing directions were made, and a Child Impact Report ordered. A request was also made on that day for the Local Court file pertaining to the father.
On 16 December 2022, orders were made in chambers granting leave to the parties’ legal representatives and the ICL to inspect and copy the documents produced by the Local Court.
On 14 February 2023, the mother filed a Response to the Application in a Proceeding filed by the second and third respondents on 19 October 2022 in which they sought to be joined to the proceedings. The mother sought that the second and third respondents’ Application in a Proceeding be dismissed and for a costs order as against the second and third respondents.
In March 2023, the father renewed his bail application in the Supreme Court. On the same day, the second and third respondents filed a Notice of Discontinuance in relation to their Application in a Proceeding filed 19 October 2022.
On 28 March 2023, the matter was listed in chambers, during which the interim hearing of 4 April 2023 was vacated following the second and third respondents’ discontinuance. On that day leave was also granted to the mother for the filing of written submissions in relation to the issue of costs, and for the second and third respondents to file written submissions in reply.
On 5 April 2023, orders were made in chambers releasing the Child Impact Report to the parents, the legal representatives, and the ICL.
In April 2023, the father’s bail application was refused in the Supreme Court.
On 17 April 2023, orders were made for the second and third respondents to pay $3,250 by way of costs to the mother in respect of their Application in a Proceeding filed 19 October 2022.
Also on 17 April 2023, separate orders were made listing the matter for directions and a notation that the father was not willing to discuss or give any evidence in relation to the criminal allegations against him whilst criminal proceedings were ongoing, and that, therefore, any family report will be of very limited assistance to the Court.
On 3 July 2023, the matter was listed for directions, during which the matter was listed for a compliance and readiness hearing on 19 September 2023. Filing directions were also made on that day.
On 18 August 2023, a Notice of Ceasing to Act was filed on behalf of the father by his then solicitors.
On 12 September 2023, the mother filed an Amended Initiating Application.
On 19 September 2023, orders were made dismissing the Response filed by the father on 18 October 2022. On that day, filing directions were also made for the father to file material and the matter was adjourned to a case readiness hearing on 4 December 2023.
On 29 November 2023, the second and third respondents filed another Application in a Proceeding seeking to be joined as parties to the proceedings and for orders pertaining to time with X.
On 4 December 2023, the second and third respondents were joined to the proceedings by consent. On that day, orders were also made for the filing of trial material, listing the matter for final hearing on 11 and 12 June 2024, and a request was made for the Local Court file pertaining to the father.
On 8 December 2023, orders were made granting the parties leave to inspect the material provided by the Local Court.
On 13 December 2023, the mother received correspondence from the solicitors for the second and third respondents, requesting permission for the second and third respondent to speak with X and provide him with a Christmas gift. The mother refused their request by way of a response from her solicitor on 20 December 2023.
On 21 December 2023, the mother received further correspondence from the solicitors for the second and third respondents, who sought again that they be permitted to provide X with Christmas gifts. The mother refused their request by way of a response from her solicitor on 22 December 2023.
On 27 February 2024, the mother received correspondence from the solicitors for the second and third respondents, who sought time with X. The mother refused their request by way of a response from her solicitor on 5 March 2024.
On 6 March 2024, the mother received correspondence from the solicitors for the second and third respondents, who sought to provide Easter eggs to X. The mother refused their request by way of a response from her solicitor on 11 March 2024.
In April 2024, the mother received a call from Police Officer W who advised her that the father had pled guilty to the criminal charges against him and that the criminal proceedings had been set down for sentencing in May 2024. During cross-examination, the second respondent confirmed that the father entered a plea of guilty in his criminal proceedings. The father was due to be sentenced in May 2024 but that was adjourned.
On 8 February 2024, the second and third respondents each filed a Response to Final Orders.
On 5 June 2024, orders were made in chambers granting leave to the parties’ legal representatives and the ICL to inspect the material provided by the Local Court.
The final hearing occurred on 11 and 12 June 2024. At the conclusion of the evidence on 12 June 2024, orders were made for the parties to file written submissions.
Final written submissions were then filed in a staggered manner by the parties, and judgment was reserved on 24 July 2024.
Child Impact Report dated 4 April 2023 prepared by Ms G
The Child Impact Report dated 4 April 2023 was prepared by Ms G. A preamble to the report noted that the report sought to provide preliminary expert advice about the needs and experience of children to support decision making through dispute resolution processes and/or interim hearings, and that any views or recommendations needed to be considered within the limited nature and focus of the report.
Ms G set out the circumstances of the mother and father as at the date of the report. She then outlined the mother’s uncertainty regarding whether it was in X’s best interests to have contact with the father, and her concern about the father collecting X from childcare if granted bail. Following this, Ms G set out the father’s proposal for X to visit him in gaol, or alternatively, that X communicate with him via audio visual link whilst he is spending time with the paternal family, and that the parents have an equal shared care arrangement if he is granted bail, receives a home detention sentence, or the charges are dismissed.
When outlining the child’s circumstances, Ms G noted that X lived with the mother and spent time with the father for generally two nights each week. Ms G noted that the mother reported her cultural background was not a strong focus for X’s identity, and that the father reported that X had a close relationship with the paternal family. In regard to X’s experiences, Ms G noted the mother taking him to a counsellor, and the father’s note that he had no concerns for X’s health or development (aside from a historical concern for his speech development).
In general, both parents described themselves as having close, positive relationships with X and have indicated that he was comfortable in their respective care. The mother reported X was happy when returning from the father’s care and spoke about the father and his partner, whilst the father reported X would become upset at the end of his visits with the father.
Risk and Harm Assessment by Ms G
When considering the family violence issues, Ms G set out the allegations of family violence as raised by the mother, and the father’s responses. In summary, the mother reported that there had been no physical violence during the relationship but that, towards the end of the relationship, the father became increasingly emotionally abusive and controlling. The mother told Ms G: that she felt isolated; that the father was not supportive of her spending time with friends and would speak negatively of her family; that she suspected the father tampered with her car as it would often not start; and that the father was entirely responsible for the family finances. The father denied being abusive or controlling and ‘described the relationship and separation as amicable.’
Ms G then set out the allegations of the mother following separation, namely: that the father would track her whereabouts and contact her if she changed her routine; that on two occasions, during changeover, the father shut the car door on her leg and grabbed her arm; that the father was seen under her car with a screwdriver; and that the father stole a fuse from her fuse box. The mother told Ms G that it was only after the father stole a fuse that the Police sought an ‘AVO’ in May 2021. The father acknowledged to Ms G that he switched off the power to the mother’s home, but denied stealing the fuse, and denied he was ever violent towards the mother. In respect of the tracking, the father told Ms G that all his company cars are tracked and that the mother knew this.
The mother also told Ms G about the Police contacting her in July 2022 to inform her that the father had been taken into custody for a serious criminal offence relating to a member of the mother’s family. Ms G noted that the mother had anticipated that the father may attempt to harm her, that the mother was reportedly shocked that the father would target her relative, but that the father knew she was close with her relative. The father strongly denied the charges and told Ms G that he was unwilling to speak in detail, but ‘said that he has opposing evidence that will exonerate him, and seemed to imply that [the mother] had orchestrated his incarceration.’ He also told Ms G that he would be eligible for home detention rather than a custodial sentence even if found guilty.
When considering the additional risk and harm issues, Ms G noted that the mother was, in general, more concerned with the risk the father posed to her safety than to X, and that she generally trusted the father would protect X. The mother was concerned about: the father being able to meet X’s emotional needs, describing a ‘lack of emotional connection’ amongst the paternal family; the lack of effective communication between her and the father as being a significant concern for X’s safety and wellbeing, citing issues such as X taking any prescribed medication; and the father’s emotional regulation following a head injury in 2015. The father told Ms G that he had completed testing and no issues were identified with his neuropsychological health and raised concern for: the mother’s mental health arising from her work; a lack of supervision whilst in the mother’s care, based on X spraining his ankle on a trampoline without protectors and receiving a scar whilst running; and the possibility of the mother relocating to Country Y with X. Ms G noted that the mother reported not having any support systems overseas, but that she was hesitant to seek a passport for X as the paternal family have strong ties to Country Z.
Child Impact Analysis by Ms G
In her assessment, Ms G noted that X will thrive in an environment where his physical and emotional needs are consistently met, has a predictable routine, opportunities to connect with other children, and engage in early learning activities. Ms G described X as presenting as a ‘cheerful and articulate child’, happy to engage individually with the assessor, that X spoke in a matter-of-fact way that the father is ‘in time out because he did something’, and displayed no strong emotions about his situation or family.
Ms G raised concern for the father’s behaviour as described by the mother as they suggested a high level of risk to the mother. In respect of the father committing a serious office relating to one of the mother’s relatives, Ms G found this ‘particularly concerning, in its callous and vindictive nature’ and, if he did so, that it demonstrated a severe lack of care and insight into X’s needs if he was prepared to cause X and mother such distress through losing a relative violently, including on the impact to the mother’s capacity to support X. However, Ms G also noted it was difficult to assess the ongoing risk to the mother, her family, and X as the father was not prepared to discuss the allegations.
Ms G noted that both parents reported X had a close, positive relationship with the father, and Ms G expressed that the sudden cessation of contact in July 2022 when the father was incarceration would have been distressing and caused confusion for X, but that the mother reported age-appropriate strategies. Ms G stated that the Court will need to weigh up the benefits to the child maintaining contact with the father and paternal family and the risk posed to X’s and the mother’s physical and emotional safety, noting the mother describing distrust in the paternal family ‘believing they may allow contact with the father without her knowledge, and may provide confusing and/or upsetting information to [X]’.
Parental Understanding
In respect of the mother, Ms G noted that whilst the father raised isolated concerns, he had a general trust in the mother’s parenting capacity, and that the mother appeared responsive and reflective of her parenting approach, and remained child-focused throughout the assessment.
In relation to the father, Ms G noted the father provided a wholly positive picture of parenting, unable to identify challenges or behaviour strategies, and that he viewed no communication between the parents as how the co-parenting relationship works best. Ms G stated that the father did not appear to recognise that X required his caregivers to communicate about his needs. In respect of the father’s incarceration, Ms G stated that the father displayed limited insight into how this impacted X. The father’s priority was to reconnect with X, and wanted his parents to ‘get rights’ to X so they could bring him to visit, also suggesting that if he had video contact he could tell X he was on holidays. Ms G stated that such an explanation would likely be confusing and upsetting for X, and that while visiting incarcerated parents can assist in maintaining connections, children require assistance understanding, and young children would find the environment stressful. Ms G noting in particular that ‘[i]t is concerning that [the father] does not appear to understand the emotional impact on [X], and that he was planning to arrange for his parents to bring [X] to visit without any communication with [the mother].’
Key Considerations and Pathways
Ms G found that the limited assessment was unable to clearly identify the level of risk posed by the father, and it was unclear whether the paternal family have the capacity to provide the child a consistent message about the father’s whereabouts or emotional support necessary to facilitate video contact.
Ms G took the view that it was not emotionally safe for the mother to facilitate video contact with the father, and raised concern about the possibility of video contact providing the father with identifying information which could place the mother and the child at physical risk in the future.
Ms G suggested, in the interim, for the father to communicate with the child via letters and cards until the risks are better understood.
Psychologist Report of Ms D dated 9 April 2024
The report prepared by Ms D dated 9 April 2024 was prepared by her as the mother’s treating psychologist since April 2021, and professed to provide a comprehensive understanding of the mother’s psychological wellbeing and implications for these proceedings, in addition to the mother’s ability to navigate challenges related to the father’s incarceration and the second and third respondents seeking that X spend time with them.
Ms D characterised the relationship background between the mother and father as abusive and controlling, and that it deteriorated following the birth of X. Ms D described the mother as ‘courageously leaving’ the relationship following escalating threats and acts of terror, and that this was ‘exacerbated by complete lack of support (physically or emotionally) by her ex-husband’s family.’
Psychological Assessment
In Ms D’s psychological assessment of the mother, she described the mother’s emotional wellbeing as exhibiting symptoms of moderate depression, anxiety, and stress which Ms D asserted stemmed from traumatic experiences in her marriage and subsequent legal proceedings. However, Ms D also noted that the mother demonstrated remarkable resilience and coping skills.
In consideration of the mother’s trauma response, Ms D stated that there were indications of the mother suffering post-traumatic stress disorder (‘PTSD’) as evidenced by a series of symptoms.
When assessing the mother’s coping mechanisms, Ms D noted that the mother employed adaptive coping strategies including seeking support from close friends and family, engaging in physical activity, and therapeutic interventions.
When outlining the mother’s parenting concerns, Ms D identified the mother’s concern with safeguarding X from further trauma and ensuring his wellbeing amidst legal battles. Ms D noted that the mother actively sought counselling for X and was proactively preparing him for the complexities of the familial situation.
In her assessment of the impact on the mother’s relationship, Ms D asserted that traumatic experiences have eroded the mother’s confidence in forming new relationships, which has contributed to her feelings of loneliness and emotional exhaustion.
In consideration of the mother’s professional support and the legal proceedings, Ms D identified that the mother relied on a multidisciplinary network including her legal team and domestic violence counsellors. Also identified was the mother’s employment which Ms D described as ‘providing structure and purpose amidst the turmoil.’
Impact on the Mother’s Mental Health and Parenting Capacity
Following her assessment of the mother, Ms D turned to considering the potential impact on the mother’s mental health and parenting capacity if the Court were to make an order for X to spend time with the paternal family.
In respect of the mother’s mental health, Ms D noted that allowing X to spend time with the paternal family ‘could trigger significant distress’ for the mother as they may serve as a potent reminder of past trauma which would exacerbate the mother’s symptoms of depression, anxiety, and PTSD. As the paternal family had not been a safe or supportive environment, Ms D noted generally that such environments and interactions can reawaken emotional wounds, leading to heightened stress levels and that the mother’s therapeutic progress could potentially regress. Ms D further stated that the prospect of X being exposed to individuals linked to the mother’s previous relationship ‘could evoke profound fear and apprehension regarding his safety and well-being’, and that there was a substantial risk such contact could destabilise the mother’s mental health and ability to cope with stressors and parental responsibilities.
In relation to the impact on the mother’s parenting capacity, Ms D identified contact with members of the paternal family as possibly posing challenges to the mother’s parenting capacity in that the emotional turmoil and heightened anxiety resulting from interacting with such individuals associated with past trauma. Ms D also noted that the mother being required to engage directly with paternal family members may detract from her focus and attentiveness to X due to emotional strain and potential conflict.
Ms D then made comments for the Court to carefully weigh the potential implications of any orders involving contact with the paternal family on the mother’s mental health and parenting capacity, and advocated for measures which would minimise the potential harm to the mother, and for the prioritisation of the psychological wellbeing of the mother and X.
Recommendations
Ms D made, inter alia, the following recommendations:
(a)That the mother continues therapy;
(b)That the mother has ongoing legal assistance;
(c)That X continues with counselling and access to resources for the mother to facilitate the child’s understanding of his familial situation; and
(d)That the mother is encouraged to maintain self-care practices.
In her conclusion, Ms D complemented the steps taken by the mother and stated that she was committed to X’s wellbeing, but that this was at risk should the mother ‘be forced to relinquish her son’s care to the paternal family (even for very brief periods).’
Ms D was cross-examined by counsel for the second and third respondents. Ms D confirmed she had only spoken to the mother and not X nor the paternal grandparents, and that she only knew what the mother had told her. Ms D said she could not comment on the statement that there is a detriment to children when ‘not given the opportunity of being involved with their extended family members.’ She was not moved from her opinions during cross-examination.
RELEVANT LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes, including orders for parental responsibility.
The objects of Part VII Family Law Act 1975 (Cth) (‘Act’) inform how the Court must exercise its discretion.[2] Those objects are to ensure that the best interests of children are met, including by ensuring their safety and to give effect to the Convention on the Rights of the Child.[3]
[2] Heintze & Marinov [2024] FedCFamC1F 548 at [9].
[3] Family Law Act 1975 (Cth) s 60B (‘Act’).
Division 2 of Part VII of the Act deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[4] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[5]
[4] Act s 64C.
[5] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act.
If the child is an Aboriginal or Torres Strait Islander child, the Court must consider the matters set out in s 60CC(3) of the Act, that is the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[6]
[6] See Act s 60CC(3).
Section 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[7]
[7] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
The Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders for children.[8]
DETERMINATION
[8] Mizushima & Crocetti [2024] FedCFamC1F 113 citing Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]–[61], [75]–[81] and [83]. Although these authorities deal with the Act prior to the 2023 amendments, there is nothing to suggest that the amendments have in any way affected this long-established line of authority.
Best Interests Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The father is a perpetrator of family violence. In this regard, the Court notes its earlier factual findings. In summary:
(a)During the parents’ relationship, the father was emotionally and verbally abusive of the mother calling her various derogatory names and belittling her. He tracked her whereabouts. Such actions by the father made the mother fearful.
(b)Following the parents’ separation, the father caused the main power to be switched off at the mother’s home, he came onto her premises without permission, he was emotionally and verbally abusive of the mother by yelling at her, speaking to her aggressively, and swearing at her, and he continued to track her whereabouts. Such actions by the father made the mother fearful.
(c)The father was charged with, and plead guilty to a serious criminal offence relating to a member of the mother’s family. Such actions by the father made the mother fearful.
(d)The father was charged with, and plead guilty to, breaching an ADVO which had been made for the protection of the mother. Such actions by the father made the mother fearful.
X has been exposed to family violence consequent upon him experiencing its effects.[9] The effects of that family violence have not only been felt by X through his mother and the impact that it has had on her, but also as a result of his relationship with the father and the paternal family being curtailed. Lest there be any confusion, X’s current lack of relationship with his father and the paternal family are a direct result of the father’s criminal conduct and incarceration, and its effects on the mother.
[9] Act s 4AB(3).
The second and third respondents submit to the Court that the ‘paternal grandfather was treated with insensitivity and unnecessarily challenged on the face of the evidence.’ There is no evidence before the Court as to why it was that the paternal family (that is, the second and third respondents) after the father initially denied his criminal conduct, ‘unsurprisingly’ believed him.
Furthermore, the submission is made that subsequent to the father admitting his guilt, ‘the paternal family then came to the view that the only way that [X] would have any relationship with them was to re-enter the proceedings.’ This has not been established on the evidence. There were many other avenues the ‘paternal family’ could have taken, including giving the mother time, space, and understanding, and letting her know that they would be there for X if and when she was ready. The tack taken by the second and third respondents shows a lack of insight into X’s needs.
A number of other submissions made in the second and third respondents’ cases are of significant concern to the Court, as they show a misconceived focus on the needs and interests of those respondents rather than those of the child. Examples of such submissions are ‘[t]heir families should not be subject to scrutiny because they still love the perpetrator of this terrible crime’ and ‘[t]he paternal grandparents would not be the first family members to believe their adult child in respect of allegations of family violence alleged to have occurred without their direct knowledge’. Until such time as the father admitted his guilt (in respect of the serious criminal offence) the second and third respondents simply did not believe that he committed this crime.
Even now the second and third respondents seek to minimise the father’s criminal conduct. During cross-examination, the second respondent stated that he was not ashamed of the father and that everybody makes mistakes. The second respondent said that he would tell X the father was on holidays if he asked him where he was. The third respondent stated during cross-examination that he was disgusted with what the father had done. The third respondent later stated during cross-examination that he meant to say he was ‘disappointed’ with the father’s actions and was replacing the word ‘disgusted’ with ‘disappointed’.
Despite knowing of the mother’s allegations of family violence against the father, and of her fear of him for a significant period of time, neither the second nor the third respondent have expressed through their evidence any understanding on the impact of such violence upon the mother and X. Indeed, they have not even acknowledged the possibility that the father had engaged in such behaviour. Their evidence displayed this lack of acknowledgement and understanding, notwithstanding their denial of the father’s conduct at the time it was happening.
The third respondent deposes that it has been very hard on his family and his children that they have not spent any time with X, and that he is ‘distressed and cannot understand why [the mother] has not allowed [X] to see the Paternal side of the family’. No real enlightenment occurred even during cross-examination.
The further submission made by the second and third respondents that the ‘only outcome by not participating in the proceedings was the complete alienation of [X] from the paternal family confirmed by the mother refusing to accept gifts for him’ speaks to a rigid attitude, lack of empathy, lack of insight, and lack of understanding of the impact of the father’s actions on the mother and her parenting capacity as X’s primary carer, but more importantly on X.
While neither the second nor the third respondent have had any direct involvement in the father’s violent and abusive conduct, their trust and faith in the father after the mother sought their assistance, their lack of acknowledgement after she made known his conduct towards her including through these proceedings, and their continued support of the father through his criminal proceedings and while incarcerated, run contrary to X’s best interests. These parenting proceedings are, after all, about X.
Lastly, there is a real and unacceptable risk of harm to X and the mother should the father become aware of the mother’s residential address and details regarding X’s school. The father has shown himself to be a dangerous man, who went to extraordinary lengths to perpetrate family violence. The risks to the mother and consequently to X should the father become aware of these details are simply unacceptable.
For example, there is a real possibility with a high probability that X may inadvertently disclose details about his home and school to the extended paternal family should orders be made as sought by the second and third respondents. Such information may realistically make its way to the father, who continues to have communication with members of the second respondent’s household (for example, the maternal grandmother) and the third respondent’s household (for example, Ms E). Such risks cannot be sufficiently ameliorated by an injunction on the second and third respondents.
The mother does not trust the second and third respondents, such that she is fearful that they may allow the father to speak to X without her knowledge or consent, and that they will provide confusing and/or upsetting information to X. While the oral evidence of both the second and third respondents is that they will abide by Court orders and would not facilitate any time or communication between X and the father, the mother’s mistrust remains.
Section 60CC(2)(b): Any views expressed by the child
Any views which were expressed by X, during the course of the interviews for the Child Impact Report were in respect of him spending time with the father, which was not occurring at the time. X was 4 years at the time of that report.
There is no evidence of the child’s views in respect of spending time with either the second or third respondent.
Section 60CC(2)(c): Developmental, psychological, emotional, and cultural needs of the child
X will be 6 years old soon. He goes to school and lives with the mother, who is responsible for meeting all of his needs.
X has been baptised as Catholic, and at the time of the Child Impact Report, both parents were supportive of him connecting with this faith.
The mother was born in Australia, with parents of United Kingdom and Country Y background.
The father’s family are from Country Z, and the interconnection between culture, family, and faith are significant to the father. Such matters are also significant to the second and third respondents.
The third respondent and his wife are X’s godparents.
The third respondent is of the opinion that ‘it is a difficult time for [X] with his Father in custody and I verily believe that regular contact with the paternal family would assist in managing that trauma’. No explanation is given for that opinion, namely, why regular contact with the paternal family would assist X, and indeed why it would not be determinantal to him in all of the circumstances.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The only person it is proposed to have parental responsibility for X is the mother.
The mother’s capacity to provide for X’s needs has been, and continues to be, negatively impacted upon by the family violence perpetrated by the father and by her fears associated with X spending time with the second and third respondents, and by extension, the extended paternal family.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
X has not spent any time with the father since the father’s incarceration in mid-2022. While it is true that prior to this, X was spending time with the father, and there appeared to have been a benefit to him of being able to have such a relationship, there is no evidence that there is any benefit to X now of being able to have a relationship with the father.
The second and third respondents acted as a block in bringing the one application, having the one legal representative and barrister, each relying on the evidence of the other, and making the one set of submissions. They are, however, still two individual applicants and each of their cases must be considered on its own merits. It would be wrong to consider the respondents’ cases as an application by the extended paternal family to spend time with the child. While a by-product of each of their applications might be that X would spend time with the paternal grandmother, his paternal cousins, and other members of the extended paternal family, it is each of the respondents, and their specific applications, that must be considered individually.
The evidence of the second and third respondents was not only very limited, but it was of very little assistance to the Court in terms of addressing the relevant issues. Ms E’s evidence is of limited relevance. The evidence in the respondents’ cases was predominantly concerned with what had previously occurred in the past and some opinions.
The photographs which formed a significant portion of the respondents’ evidence are at best evidence of the child enjoying particular moments in time with those pictured in the photographs. The paternal family was involved with X’s care prior to the parents’ separation, no doubt they love him very much, miss him very much, and do not wish him any harm. The mother’s evidence that X did enjoy spending time with members of the paternal family in the past, is not evidence of a benefit to the child of a relationship with those persons in the future, nor is it evidence of present significance of those persons to the child.
The submissions made on behalf of the second and third respondents that ‘there is an absence of independent social science evidence in this case to assist the court when considering the harm to the child’s long-term development by not having the benefit of spending time with the paternal family in the absence of the father’ is, respectfully, misconceived. This is because there is no evidence either way. There is simply no evidence about these matters. There is no evidence as to whether there is any risk to X of not spending time with the second and/or third respondent. Likewise, there is no evidence, and specifically no evidence by the second and third respondents, of any benefit to X, if he was to spend such time with them.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
The submissions of the ICL have carefully addressed the problems inherent in many of the orders proposed by the second and third respondents. The Court accepts those submissions, in particular that some of the orders sought were of a coercive nature, for example, by requiring the mother to respond to any text messages by either one or both of the respondents in a timely manner, in circumstances where they were seeking orders for time once per month, for the child to live with the mother, and for parental responsibility to be made in favour of the mother.
The evidence has not established any acceptance by the second and/or third respondent of any emotional consequences that have impacted X, or may yet impact X, as a result of the father’s behaviour.
It is for [each of?] the respondents to prove their case. They have a positive obligation to put before the Court evidence which would establish the relevant matters on the balance of probabilities. The orders they seek are not a given or the starting point; it is not for the mother to prove that the orders which they move the Court to make are not in X’s best interests. It is for them to prove that such orders are in X’s best interests. They have not done so.
Parental Responsibility
Neither the second nor the third respondent sought an order for parental responsibility. The father has not participated in the proceedings.
It is, in all of the circumstances, in X’s best interest that an order for parental responsibility be made in favour of the mother, and that she have the sole decision-making in relation to major long-term issues for the child.
Living and Spend Time with Arrangements for the Child
X will live with the mother. Such an order is in his best interest, and it is an order that is agreed to by all of the parties.
X will not be spending any time with the father. The evidence simply does not establish any benefit to him of such time. The evidence further establishes significant and unacceptable risks to him and the mother if such time was to occur.
X will likewise not be spending any time with the second or the third respondents. Once again, the evidence does not establish that an order for him to spend time with them is in his best interest, and indeed any benefit would be outweighed by the risks to him, and the mother, should such time occur.
Injunctions
The mother and the ICL both sought an injunction with respect to the father.
The ADVO for the protection of the mother has expired.
The father perpetrated family violence as found earlier. The father poses an unacceptable risk to the mother and X. It is not known how long he will be incarcerated for.
In all of the circumstances, the injunctive order sought by the mother and the ICL for the mother’s and X’s personal protection is warranted and in the child’s best interest.
The Court so orders.
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 9 October 2024
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