Elton & Donato
[2020] FamCA 1011
•8 December 2020
FAMILY COURT OF AUSTRALIA
Elton & Donato [2020] FamCA 1011
File number(s): PAC 4658 of 2019 Judgment of: FOSTER J Date of judgment: 8 December 2020 Catchwords: FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother – Where orders made for children to spend time with the father as agreed between the parties – Where appropriate to make orders permitting mother to obtain passport for the children and travel internationally with them without the father’s consent. Legislation: Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Number of paragraphs: 146 Date of hearing: 20 October 2020 Place: Parramatta Solicitor for the Applicant: Matthews Folbigg Pty Ltd For the Respondent: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 4658 of 2019 BETWEEN: MS ELTON
Applicant
AND: MR DONATO
Respondent
MARK MACDIARMID
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 OCTOBER 2020
THE COURT ORDERS THAT:
Discharge of prior Orders
1.All prior parenting orders are discharged.
Sole parental responsibility
2.The mother shall have sole parental responsibility for the children X born … 2012 and Y born … 16 (“the children”).
Live with and spend time with Orders
3.The children shall live with the mother.
4.The children shall spend time with the father as agreed between the parents and failing agreement as is determined by the mother.
Passports & overseas travel
5.The children or either of them are permitted to:
(a)travel internationally with the mother;
(b)have an Australian travel document issued to them, without the need for the consent of the Father, pursuant to Section 11(1)(b) of the Australian Passports Act 2005.
6.Judgment is reserved to chambers.
7.The Applicant mother file and serve short submissions in support of any application for costs within 21 days from this date and that thereafter the Respondent father file any submissions in response within a further 14 days and at the conclusion of that period judgment as to costs will be reserved to chambers.
8.The Independent Children’s Lawyer file and serve any further supplementary submissions as to costs sought by the Independent Children’s Lawyer and, if not already done so, serve a copy of the Independent Children’s Lawyer’s case outline summary of argument marked in evidence today as Exh “C” within 21 days from this date and that thereafter the Respondent father file and serve any submissions in response to the Independent Children’s Lawyer’s application for costs within a further 14 days and at the conclusion of that period, judgment as to the Independent Children’s Lawyer’s costs will be reserved to chambers.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elton & Donato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
Introduction
These are parenting proceedings commenced by the applicant mother by Initiating Application filed 20 September 2019.
The application concerns two children, X born in 2012 and Y born in 2016 (“the children”) who at the time of the hearing were eight and four years old respectively.
The matter proceeded undefended on 29 October 2020 as the father, not only failed to engage in the proceedings, but did not comply with various orders and directions made by the Court.
At trial, the mother relied upon the following documents:
·her Initiating Application filed 20 September 2019; and
·her Affidavit filed 22 October 2020.
The mother sought orders as outlined in her Final Minute of Orders tendered at hearing, providing that she hold sole parental responsibility for the children and that they live with her and spend time with the father as agreed between the parties and failing agreement, as determined by her. She also sought orders that the children be permitted to travel internationally with her and obtain passports without the father’s consent.
In addition to parenting orders, the mother sought costs against the father including an order that the father pay the Independent Children Lawyer’s (“ICL”) costs in the sum of $6,050. Subsequently, that application for costs was withdrawn.
The ICL supported the mother’s position in relation to both parenting and costs.
Orders were made by the Court in the terms sought by the mother as they relate to parenting on 29 October 2020 and reasons were reserved. These are those reasons.
With respect to the issue of costs, directions were made that the each party file short submissions in support of any application for costs made (including ICL’s costs), and it was indicated at the conclusion of the hearing that these matters would be reserved in Chambers following receipt of same. Subsequently, the ICL withdrew the application for costs.
Context
The mother was 41 and the father 40 at the time of hearing.
The parties married in B City, USA in 2010 and separated in April 2019. For a brief period after separation, they remained living under the same roof.
The parties’ daughter was born in 2012 (“the daughter”) and their son in 2016 (“the son”).
The parties were initially in dispute as to property settlement but those proceedings resolved by way of final orders made with the consent of the parties in March 2020.
Since the commencement of proceedings, the father’s time with the children has waxed and waned. Although interim orders provided that he spend supervised time with the children and have electronic communication with them as agreed between the parties, he has seldom taken up these opportunities in part due to his prioritising of work commitments that require him to travel domestically and internationally.
Currently, the father’s circumstances including circumstances relating to his residence are unclear.
In addition to his failure to meet parental obligations, the mother raises concerns that the father poses an unacceptable risk of harm to the children on the basis of his drug use and history of family violence.
The proceedings
On 20 September 2019 the mother commenced proceedings in the Federal Circuit Court seeking urgent orders relating to parenting and property. In her Notice of Risk filed in support of her application the mother deposed to the father’s parental incapacity arising from his neglect of the children, substance misuse and history of family violence.
The matter was later transferred to this Court.
On the first return date before a Registrar on 8 October 2019, orders and directions were made in relation to property and parenting including that the parties attend an intake event as part of the Child Responsive Program and that an ICL be appointed to the proceedings. The father did not attend this court event as it was noted that he was overseas due to work commitments.
The father filed his Response to Final Orders on 7 November 2019 seeking property and parenting orders. With respect to parenting, the father sought orders that inter alia provided that the parties exercise equal shared parental responsibility for decisions relating to the children’s major long-term issues and that the children live with the mother and spend substantial and significant time with him.
On 14 November 2019 following a procedural hearing before a Registrar, the matter was adjourned as the parties were negotiating interim terms of settlement.
Interim consent orders were then made on 20 November 2019 relating to both parenting and property matters (“the 2019 orders”), relevantly providing, in summary, that:
Parenting
(1)The children live with the mother.
(2)The children spend time with the father as agreed between the parties, and in default of agreement, from 10.00 am to 5.00 pm each Sunday, subject to:
(a)such time being suspended on:
(i)the mother providing the father with 14 days’ notice of such suspension in writing, with such suspension to occur no more than once every six weeks.
(ii)days that [the daughter] has dancing competitions and performances, noting that the father is at liberty to attend …
(3)Without making admissions as to the necessity for such order, the time that the children spend with the father occur in the presence of one or more [specified persons].
…
(4)The father be at liberty to communicate with the children by Facetime on Monday, Wednesday and Friday between 7.00 – 7.30 pm with the father to initiate the call to the mother’s mobile telephone ....
(5)The father attend for hair collection at an Australian Workplace Drug Testing Services Clinic or nominee for hair drug testing purposes.
(6)Upon request by the ICL at any time, but on no more than two occasions per calendar month the father:
(a)submit to urinalysis testing (under supervision and chain of custody); and
(b)upon the results of such tests being available, cause copies of the results to be provided to the ICL and the other parent.
(7)At least 21 days prior to the next court event, the father file and serve a treatment report from his most recent treating psychiatrist …
…
Property
(8)The parties shall forthwith do all acts and things and sign all documents to list [the former matrimonial home] for sale, and to cause such sale to occur prior to 25 December 2019 ...
(9)The proceeds of sale shall be disbursed [in a specified manner].
On 16 December 2019, the family met with the family consultant and were assessed as part of the Child Responsive Program. The family consultant’s Child Responsive Program Memorandum was released to the parties on 8 January 2020.
On 2 March 2020 the property proceedings resolved by way of final orders made with the consent of the parties. These orders further stipulated the way in which the net proceeds of the sale of the former matrimonial home were to be disbursed.
A judicial case management hearing was held for the parenting matter on 31 March 2020, on which occasion the parties were granted leave to issue subpoenas as they considered relevant to the issues before the Court. Orders were also made that the parties attend a COMP mediation program as may be arranged by the ICL. The matter was then adjourned to 15 June 2020 for further case management.
At the court event on 15 June 2020 there was no appearance by or on behalf of the father. On this occasion the Court noted that the father’s solicitor filed a Notice of Ceasing to Act in the previous month, and the Court was also informed by the ICL that the father failed to comply with the 2019 orders including drug-testing. The proceedings were adjourned for further judicial case management on 15 July 2020 and it was further noted that in the event the father fails to appear on the adjourned date, directions will be made that the mother’s application for final parenting orders be listed for undefended hearing. The mother’s solicitor was ordered to notify the father of the orders made on this date and the consequences of his non-appearance.
When the matter came before the Court on 15 July 2020, the father appeared self-represented. In addition to orders that a Family Report be prepared, orders were made extending the father’s time for compliance as to hair follicle testing. An order was also made that the provision of a psychiatric report of the father pursuant to the 2019 orders be suspended pending further order.
In the following months, the father substantially did not comply with the ICL’s requests that he submit to drug-testing.
At the court event on 2 October 2020 there was again no appearance by or on his behalf. The father’s application was struck out and dismissed and the mother’s application was listed for undefended hearing on 29 October 2020.
The matter proceeded on an undefended basis on 29 October 2020 and in the course of the hearing the mother no longer pressed her final parenting orders sought in her Initiating Application. The mother’s solicitor tendered a Final Minute of Order in which the mother sought that she hold sole parental responsibility for the children and that the children live with her and spend time with the father as agreed between the parties and failing agreement, as determined by her and other orders relating to overseas travel.
Final orders were then made as to parenting in the terms sought by mother and reasons for judgment were reserved.
Procedural fairness
As outlined above, the father has failed to engage in the proceedings by failing to attend several case management court events and the final hearing in person.
The father has also failed to comply with court orders stipulating that he submit to drug testing and that he provide to the Court a report from his most recent treating psychiatrist.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
16.07 Parties' participation
(1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Further, rule 11.02(2)(c) of the Rules provides:
(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(c) determine the case as if it were undefended.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, where the plurality of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…
Despite being informed of the consequences of failing to appear before the Court, the father did not attend recent court events. He has also shown flagrant disregard of court orders, including orders that he submit to drug testing.
In these circumstances, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.
The mother’s allegations: the father’s drug use and perpetration of family violence
It is the mother’s case that throughout the parties’ relationship the father misused illicit substances and displayed threatening behaviour towards her.
Although she concedes that she does not experience the “same level of aggression” from the father, she remains concerned that he is heavily involved with drugs and on this basis poses a risk of neglect to the children if they were to be in his care.
In her affidavit evidence, the mother details the father’s long history of substance abuse which she claims dates back to around the time the parties met.
The mother recounts incidents in which the father produced from his person illicit substances such as “cocaine”, and details her observations of the father’s involvement with drugs including around the time of her pregnancies.
From around 2016 the mother noted changes in the father’s behaviour which she attributed to heavy drug use. For example, she recalls the father having regular nose bleeds, appearing agitated including when he spoke, sometimes having slurred speech, and described him as becoming aloof or, otherwise, increasingly hostile towards her and the children. The mother also deposes that the father became increasingly unkempt and would remain asleep for unusual extended periods of time.
On some occasions from 2016 until separation, the mother expressed her dismay at the father’s drug use which aggravated him or was, otherwise, dismissed by him.
On one such occasion in September 2018 after finding “white powder on the kitchen bench”, the mother questioned the father stating words to the effect of “how dare you bring this stuff into the home, you told me you would not do this”, to which the father replied “you are crazy, it’s baking soda or something”.
Another occasion in 2018, one day before the son’s birthday, the father arrived home at 3.00 am and the mother was awoken to find the father affected by drugs. When the mother told the father “I can’t believe this, you need to take a drug test”, the father responded “fuck off, I will not do that”.
Other times the mother scolded the father for his drug use and demanded he take a drug test, the father would, in response, shout profanities at her such as “stop being a c..t”.
There has also been numerous incidents in which the children have been exposed to the father’s drug use.
As recent as May 2019 the mother recounts that the son approached her “carrying a small bag with white powder in it”. When the mother enquired into the father’s whereabouts, she observed him asleep on his bed with his nose bleeding and surrounded by drug paraphernalia. She says the night before the incident, the daughter had been asleep in the same bed in which the father was found.
By late May 2019 the father agreed to submit himself to a residential rehabilitation program after the mother threatened to inform police if he did not do so. A further conversation was had between she and the father in which he admitted in the presence of members of the paternal family that he suffered from a “cocaine and gambling problem”.
On 12 June 2019 the father was admitted to a rehabilitation clinic in which he stayed for 12 days.
Records produced by the rehabilitation clinic on subpoena: Exh “E”, corroborate the mother’s claims relating to the father’s drug issues, and also note concerns with the father’s gambling habit. One medical summary document records that the father was diagnosed with “gambling and cocaine use disorder” and was “admitted for detox”.
Further details of the father’s admission also produced on subpoena note that:
… [the father] admits to a history of gambling and substance abuse … worsened after sister died in 2015, has been snorting cocaine daily up to 2 grams as part of his coping therapy. Gambling up to $10,000 in a sitting … willing to go on Opioid treatment program.
Despite the father being discharged from the rehabilitation centre with an extensive treatment regime in late June 2019, from the time the mother commenced proceedings in September 2019, she has held little confidence that the father has addressed his issues relating to gambling and more so, drugs.
In addition to her historical observations of the father described above, the mother highlights certain concessions made by the father when interviewed by the family consultant in December 2019, and complains about his non-compliance with court orders providing that he submit to drug-testing.
Family violence
With respect to the father’s perpetration of family violence, the general tenor of the mother’s evidence is that the father often levelled physical and verbal abuse towards her, and at times the children.
From early on in the relationship, the mother says the father made disparaging remarks towards her including: “you are crazy”, “you’re an idiot”, “you are needy”, “Go back to Country C…where you belong”, “you’re a fucking bitch” and “you are a c..t”. At times, this occurred in the presence of the children.
Derogative comments were also made by the father towards the children including that on one occasion he referred to their daughter as a “devil child”.
Quite apart from verbal and emotional abuse, the father also displayed physical aggression towards the mother. This included forcible pushing which on one occasion leaving bruising on her chest.
Following an altercation between the parties just prior to their marriage, the mother also recounts that the father grabbed her by the neck and told her words to the effect of “if you move bitch, I will break your jaw”. More recently in February 2018, the father threw a plate towards the mother following a disagreement.
Some other abusive conduct to which the mother deposes relates to threats made by the father.
On various occasions between 2018 and 2019 the father threatened to take the children away from the mother and on one such occasion ridiculed her for expressing emotional distress by recording her crying.
Records from the mother’s treating psychologist produced on subpoena: Exh “F”, indicate that before and after separation, the mother reported facing difficulties with both the father’s abusive behaviour and his involvement with drugs.
Even following his release from the rehabilitation clinic on 24 June 2019, the mother describes that the father remained abusive towards her, to which the children were increasingly exposed.
In around August 2019 the mother recounts that when the father visited the children for dinner organised by her, he was belligerent and displayed coercive and controlling conduct such that intervention by the paternal grandfather was required. The father repeatedly swore at the mother in the presence of the children, including words to the effect of “you fucking c..t, you evil bitch” and later withheld from the mother her car keys to prevent her from its use. For some time following this incident the daughter refused to spend time with the father in fear of him.
In September 2019, there was again a tirade of abuse from the father towards the mother in the presence of the children which required the paternal grandfather to intervene. In the course of the father repeatedly berating the mother, the daughter “pushed” the father and yelled at him in tears “you are the meanest person in the whole word. Get away from us”. Following this incident, the father again denied the mother’s use of the family car.
In the same month, the mother deposes to the following conversation between the parties in which the father again displayed intimidating and threatening behaviour towards her:
[The father]: I’m entitled to see the kids.
[The mother]: You can see the kids any time, if you behave reasonably, and don’t scream and scare them and if you are supervised. You cannot see them unsupervised – you have a problem – you are dangerous.
[The father]: You haven’t seen anything yet. You bet I am dangerous.
The mother properly contends that given the father’s history of family violence to which the children have been exposed, and in light of his propensity to display intimidating, irrational and unpredictable behaviour, the children are also at risk of abuse in his care including serious psychological harm.
Child Responsive Program Memorandum
To provide initial expert advice to the family and to the Court regarding the issues in dispute and the children’s needs, the family was assessed by a family consultant on 16 December 2019. At the time of the assessment the daughter was seven years old and the son three.
On the day of the assessment the mother was interviewed in person and as the father was overseas at the time he was interviewed by telephone. In the circumstances, neither parent was observed with the children, and only the daughter was interviewed by the family consultant as the son was too young to be meaningfully interviewed.
On interview, the daughter reported that the mother is mostly “a kind parent who is caring towards the children”. Although she stated that the mother can be “grumpy when tired” and “shouts at the children sometimes” she denied that the mother uses physical discipline on them.
When describing the father, the daughter told the family consultant that the father is “about 50-50 grumpy and kind”. She reported that the father shouts when he is angry but only recalled being smacked by him on one occasion. She later added that his level of irritability towards the children was “the same as mum” and denied that she is fearful of him.
When further discussing each parent’s discipline, the daughter stated that the mother “shouts at the children more than the father” but acknowledged that this was because the mother “has more things to do” for the children’s daily care. She stated that the father was “not around much” and “did little for the children” and further reported that the father is “scarier because he is big” and that both children are sometimes frightened when the parents shout.
The daughter then described that she felt close to the mother who she noted was “always around”. She told the family consultant that she wanted to live with the mother on weekdays as the “mother is better at managing the children’s routine”.
While the daughter reported feeling distant from the father due to his work commitments and because at times he “did not come home until I was in bed”, she expressed a desire to “feel close to him” and stated that she loves him and he loves her. She then proposed that she live with her father on the weekends but stated that she does not feel comfortable with overnight time with him until he “gets a permanent home” and until she first spends daytime with him in his household “to get used to the home”.
The only assessment of the son made by the family consultant was that he presented as an “energetic, cheerful child…who interacted affectionately with the mother.”
When interviewed by the family consultant, the mother maintained that the father was physically and verbally abusive towards her consistent with her affidavit evidence. She told the family consultant that the father was “normally a lovely person, when he is not in the midst of addiction”. She complained that when she raised her concerns with him about his abusive behaviour he “belittled her, called her crazy and hysterical, and sought to intimidate her”. She also reported that although no Apprehended Domestic Violence Orders (“ADVO”) have existed between the parties, police have previously attended the family home.
The father denied ever abusing the mother and alleged that the mother has “difficulties managing anger”. He told the family consultant that in the course of their relationship, the mother became increasingly verbally and psychologically abusive, as well as physically violent towards him which in the past caused him bruising. He further added that the mother was “extremely controlling”, in that she refused to allow him to spend time with his family and friends and would “check up on him” even if he was “a minute late home”.
While the mother admitted to “pushing [the father] on occasion”, “verbally abusing him at times” and reacting inappropriately to his threats to take the children away from her, she told the family consultant that she was under “extraordinary stress” due to “having just given birth, caring for two children without [the father]’s support and [the father]’s drug use”. Otherwise, she stated that since separation she has been functioning “well”.
In the course of her interview with the family consultant, the mother also relayed her concerns relating to the children’s safety around the father. She made specific reference to the incident in which the son approached her bearing a packet of “white powder” which she said the father did not deny was “cocaine”. She complained that the father failed to understand how his involvement with drugs was detrimental to the children and failed to appreciate the negative impact of drugs on his parental capacity.
In justifying her proposal at the time that the father’s time be supervised, the mother reported that the father often neglected the children including that he often fell asleep and left them unattended. She also told the family consultant that the father became “increasingly irritable” towards her and the children, resulting in the daughter fearing him in around mid-2019 and being averse to spending any time with him. While she stated that the daughter has “calm down a bit” in relation to the father, she maintained that the children have been negatively affected by the father’s drug-related issues, gambling problems and his previous domestic shortcomings.
With respect to the issue of substance misuse, the mother maintained that which she deposed to in her affidavit relating to the father’s drug addiction and his involvement with drugs.
When interviewed, the mother indicated that she was sceptical about the father’s admission in the rehabilitation clinic, alleging that he went there not to “genuinely engage in treatment” but to merely “tick the box”. She also complained that he failed to comply with drug-testing ordered by the Court and did so in order to “delay [testing] to the point where no illicit substances would be present in the sample”. The father denied that this was the case, and told the family consultant that he would submit to hair follicle testing upon his return from overseas.
When asked further about drug use, although the father conceded that he previously used drugs as an “escape from his toxic relationship with [the mother]” and to “stay awake at work”, he clarified that “because he is not compelled to use illicit substances he does not have an addiction”. He told the family consultant that he has not used drugs since he was discharged from the clinic, and denied that his use was as frequent as the mother maintains.
In relation to the incident in which the son was exposed to a packet of illicit substances belonging to the father, the family consultant reported that the father “initially stated that he does not know if one of the children had found his drugs because he had been asleep at the time.”
When pressed about this issue, the family consultant noted that the father:
… became defensive, declaring that he did not deliberately leave it where the children could find it, stating “it fell out of my pocket whilst I was sleeping”. He said he is well aware that if the children had taken [it] it could have been fatal …
The father maintained that the children are not at risk in his care as he has no intention to take drugs in the future. He later told the family consultant that he had a “gambling problem” for which he attended the rehabilitation clinic but denied that he was admitted to the clinic in relation to drug use.
It was the family consultant’s evaluation that:
[The father] presented as minimising his past drug use. If, as he claims, he is not compelled to use illicit substances, then he has chosen to use them and minimises the impact of this on his parenting capacity.
The family consultant then recommended that periodic hair testing would likely assist the Court to determine whether the father continues to use illicit substances. She also opined that the father would benefit from outpatient treatment at an appropriate treatment facility for drug use, but added that this would only be conducive to the father going forward “if it is voluntary and is based on acknowledgement of problem drug use or poor stress management”.
Another issue raised in the course of the assessment related to parental conflict and the parties’ co-parenting relationship.
The mother reported that at times she supervised the father’s time with the children he sought to “intimidate her” and as a result such time can be “tense”.
While the mother further reported that the father had some “positives” in that when he is “present and focused on the children” he is an “affectionate and playful parent”, she complained of his “absence in family life” and his inability to recognise the extent of his problems in relation to his drug use, gambling and irritable moods. She told the family consultant that although she desires the children to have a relationship with the father she has some reservations given the father continues to deny his drug-related issues and other problems with his parental capacity.
The father had little negative things to say about the mother’s parental capacity and told the family consultant that she was “an excellent mum who loves the children”. Although he reported that she used physical discipline on the children he denied that it was excessive or that it reached an “abusive level”. He also stated that the parties had some improvement in their communication and cooperation in the weeks preceding the assessment and reported that on numerous occasions the mother invited him to spend time with her and the children including on Christmas Day and other outings.
The father also reported that the parties had attended mediation prior to the interview and reached some agreement as to final parenting orders. When asked about this agreement, the mother clarified that it was a “work in progress” and that she was under pressure from the father when discussions were had between them. She also added that she since learned that the parties should not have engaged in mediation in the absence of agreement with and participation of, the ICL. The mother denied that a parenting agreement had been formalised and reiterated that she does not support the children spending unsupervised time with the father.
Some concerns were also raised by each parent about the mental health of the other, although both ultimately reported that neither of them have ever been diagnosed with a mental health condition.
In relation to this issue, the family consultant concluded that notwithstanding that the parties denied that either of them have had mental health problems, “both described behaviour in the other parent that may be consistent with a mental health condition”. It was her opinion that:
It is possible this is an ongoing difficulty or had been context specific, due to family violence perpetrated by one or both parents towards the other, as well as other stressors, such as the deteriorating parental relationship.
The family consultant then recommended that the parties’ mental health and its impact on their parenting capacity be assessed by a Single Expert in the capacity of a clinical psychologist or a child and family psychiatrist with expertise in assessing “high conflict separated families”.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)…
(c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In circumstances where the mother gives uncontradicted evidence of family violence perpetrated by the father, the presumption of equal shared parental responsibility is rebutted.
It is also the case that equal shared parental responsibility would not be in the children’s best interests given the father’s sporadic involvement in their lives. In light of evidence that the father has prioritised his work commitments over time with the children and throughout the parties’ marriage has been “absent in family life”, there is doubt on his ability to be proactive in making decisions in relation to the children’s future and his willingness towards same.
An order that the parties equally share parental responsibility would also be untenable where there appears to be some residual parental conflict between the parties and little communication.
Accordingly, the Court is satisfied that the order sought by the mother that she hold sole parental responsibility is in the children’s best interests.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations 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.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Although when assessed by the family consultant in December 2019 the parties did not dispute that the children “have a good relationship with both parents”, it is apparent from the mother’s affidavit evidence and written submissions that for the most part of the children’s lives the father has neglected his parental obligations and in this way has not meaningfully participated in their lives.
Since birth, the mother has been primarily responsible for the children’s daily care and maintenance. The same cannot be said about the father, who, as a result of work commitments, and to some extent, his issues with drugs and gambling, has spent infrequent time with the children.
When assessed by the family consultant in late 2019, the daughter stated that, unlike her relationship with the mother, she does not feel particularly close to the father due to his absence and his little involvement in the day to day care of the children. Notwithstanding, at the conclusion of her interview that day she expressed a desire to have a relationship with the father and spend time with him on weekends subject to him securing stable accommodation.
Although in written submissions the mother acknowledges some occasions where the father has in recent times initiated contact with the children, she maintains that on the whole the father has failed to avail opportunities to spend time with them, even more so with his failure to submit himself to drug-testing pursuant to court orders to allow him to have contact with them.
In the circumstances, it is clearly appropriate to make orders that the children remain in the mother’s primary care.
Should the father be motivated to maintain a meaningful relationship with the children, the mother proposes an order (which the ICL supports) that the children spend time with their father as agreed between the parties and failing agreement as determined by her.
While the mother’s proposal is generally supportive of the children having a relationship with the father, the mother is cautious that until it is clear that the father’s issues with drugs and gambling are addressed, there is little benefit to the children maintaining a relationship with him and in these circumstances she will not facilitate the children’s time with him.
Section 60CC(2)(b) – need to protect
This consideration relating to the need to protect the children from harm looms large in the proceedings given the father’s history of drug use and family violence described above.
In circumstances where the father has substantially failed to comply with court orders providing that he submit to hair follicle drug testing and urinalysis as requested by the ICL, the Court cannot be satisfied that the father’s drug use is not an ongoing concern.
The father has failed to respond to the various requests made by the ICL between January and August 2020, and although the ICL notes that the father presented drug test results for 5 February 2020, the ICL concluded that those results “did not on its face reference that the sample was collected via chain of custody”.
The Court accepts the submission made by both the mother and ICL that in circumstances where the father’s drug use appears to be ongoing, and other issues relating to his gambling are untreated, the children are at an unacceptable risk of harm in his care.
Further, although not deposed to in her affidavit evidence, the mother also raises some concerns in her Outline of Case about the status of the father’s mental health.
As with orders relating to drug-testing, the father has not complied with orders that he provide to the Court a treatment report from his most recent treating psychiatrist. Given the family consultant has also urged that the father’s mental health and its impact on his parental capacity be the subject of forensic assessment, and it is unclear whether this has occurred, the Court cannot be satisfied that the father does not pose a risk of harm to the children on this basis. This is particularly so, when coupled with concerns as to his drug use and evidence of his neglect of the children in the past.
In keeping with the family consultant’s opinion that the children would likely benefit from a relationship with both parents “as long as they are not at unacceptable of harm by doing so”, the mother seeks an order that the children spend time with the father as agreed between the parties but failing agreement, as determined by her.
The mother recognises that she has in the past been willing to facilitate time between the children and their father when she had considered it “safe” for it to occur.
The Court is satisfied that the mother’s proposal, which is supported by the ICL, appropriately allows the mother to facilitate the children’s time with the father as she may deem fit, and in the event she is confident that he will not pose a risk of harm to the children that is unacceptable.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
(c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
iii)With whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f) The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
iii) Any evidence admitted in proceedings for the order;
iv) Any findings made by the court in, or in proceedings for, the order;
v) Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.
The daughter was seven years old when she met with the family consultant. In the course of her interview she expressed a desire to live with the mother and develop a “close” relationship with the father. It appears the family consultant did not discount the views expressed by this child as she was noted as presenting as “articulate” when assessed. Accordingly, some weight is given to the views of the daughter, however, her views will be considered in the context of her maturity level and the overshadowing risk presented by the father.
With respect to the son, who was only three when he met with the family consultant, no weight can be attached to his views as he was too young to be meaningfully interviewed.
Both children have a close and loving relationship with the mother who has been their primary carer since birth. In contrast, it appears the children’s relationship with the father has at no stage been meaningful, or at least maintained by him. Whilst the family consultant opined in her Memorandum to Court that both children appeared “desirous of, and would likely benefit from, a relationship with both parents”, as discussed earlier, the need to protect the children from harm is given primacy in the proceedings and is supportive of the orders sought by the mother.
It is apparent from the father’s disengagement in the proceedings and his little involvement in the daily care of the children, that he is neither competent in meeting his parental obligations nor attuned to the children’s needs.
In light of his disregard of court orders relating to his drug-testing and mental health, along with his dismissive attitude towards the detrimental impact of his drug use on his parental capacity when interviewed by the family consultant, the Court cannot be satisfied that the father has the capacity to act in a child-focused manner or be protective of them. Since commencing proceedings, the mother has been averse to allowing the father unsupervised contact with the children and it appears that following separation the father’s time with the children has always been supervised. Quite apart from his extended absence due to work, the mother notes that as a result of his heavy drug use and neglect of the children, she has not left the children in his sole care.
With respect to the mother’s parental capacity, there is nothing to suggest that she is other than competent in meeting her parental responsibilities and being appropriately protective of the children. To her credit, she has demonstrated a willingness to support the children having a “close and rewarding” relationship with their father and states she is “hopeful” that the father can show that he is “clean of drugs” and proactive in seeking the appropriate treatment in order to maintain his contact with the children. Despite her misgivings about the father, she has also supported the children’s relationship with the paternal family, particularly the paternal grandmother with whom the children have regular electronic communication.
The orders sought by the mother and supported by the ICL would see a maintenance of the status quo for the children with their mother as primary carer.
Should the mother deem it appropriate that the children spend time with the father, some practical difficulty may arise in circumstances where there is little evidence that the parties have maintained communication and where the father’s current circumstances in relation to his residence are unclear.
Having regard to the father’s non-compliance with court orders and disengagement in the proceedings, the orders sought by the mother would be the least likely to lead to the institution of further proceedings.
Overseas travel
The mother also seeks an order that she be permitted to obtain a passport for the children and travel overseas with them without the father’s consent. It is her intention to travel overseas with the children when restrictions on international travel ease, to allow them to spend meaningful time with their maternal grandmother who is “very ill”.
The holding of sole parental responsibility by one parent does not entitle such parent to obtain a passport for a child without the consent of the other parent.
It is appropriate, however, in circumstances where the father has in effect discontinued his application for parenting orders and where there is little evidence that a co-parenting relationship currently exists between the parties, that an order be made permitting the mother to obtain a passport and travel overseas with the children without the father’s consent. Such an order will also avoid the mother being unnecessarily exposed to the father’s intimidating and abusive conduct if she were required to seek his permission.
A consideration of the s 60CC factors and the reality that the children do not enjoy a meaningful relationship with the father at this point in time supports the making of orders as sought by the mother as being in their best interests.
Orders will be made accordingly.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 8 December 2020
Key Legal Topics
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Family Law
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Procedural Fairness
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