Estrada & Nemes (No. 2)

[2021] FamCA 621

FAMILY COURT OF AUSTRALIA

Estrada & Nemes (No. 2) [2021] FamCA 621

File number(s):	BRC 14181 of 2019
Judgment of:	HOGAN J
Date of judgment:	23 August 2021
Catchwords:	FAMILY LAW – CHILDREN – BEST INTERESTS – Where the mother ceased to participate in the proceedings and did not appear at the trial – Where the post-separation parental relationship has been highly conflictual – Where the child is to continue living with the father.
Legislation:	Family Law Act 1975 (Cth) Pt VII, Div 6, ss 4, 4AB, 60CC, 61DA, 65D, 65DAB
Cases cited:	McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Number of paragraphs:	71
Date of hearing:	23 August 2021
Counsel for the Applicant:	Mr McGregor
Solicitor for the Applicant:	Evans Brandon Family Lawyers
The Respondent:	No appearance
Counsel for the Independent Children's Lawyer:	Mr Ashcroft
Solicitor for the Independent Children's Lawyer:	Dooley Solicitors

ORDERS

BRC 14181 of 2019

BETWEEN:

MR ESTRADA

Applicant

AND:

MS NEMES

Respondent

INDEPENDENT CHILDEN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	23 AUGUST 2021

THE COURT ORDERS BY WAY OF FINAL ORDER THAT:

1.All parenting plans and previous parenting orders are discharged.

2.The child X, born on … 2011, live with the father.

3.The father have sole parental responsibility for the child in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).

4.The child spend time with the mother as agreed between the father and the mother in writing.

5.The child communicate with the mother each Wednesday night, with the mother to call the child between 6.30 pm and 7.30 pm New South Wales time, and the father to facilitate the call and accord the child privacy during the call.

6.The child be at liberty to communicate with the mother by text message, email or other electronic means at all reasonable times the child seeks to do so.

7.The mother be at liberty to send the child gifts or cards or letters to an address, which may be a PO Box, notified to her in writing by the father.

8.Within seven (7) days the father notify the mother in writing of the address or PO Box to which the mother can send gifts or cards or letters to the child.

9.The father ensure the child is given any gift or card or letter sent by the mother to the address which the father nominates in writing.

10.The father notify the mother by email or text message as soon as practicable, and no more than two (2) hours after the child is hospitalised, of any medical emergency or illness which requires the child to be hospitalised.

11.The father notify the mother by email or text message as soon as practicable, and no more than two (2) hours, after receiving any information that the child has contracted the COVID-19 virus.

12.Within seven (7) days of receipt of the child’s school reports, the father send a copy of the school report to the mother and for this purpose the father is at liberty to redact all information which identifies the location of the child’s school from the school report.

13.The Independent Children’s Lawyer is discharged.

14.All outstanding applications, other than that made orally for costs, be dismissed and the matter be removed from the list of cases requiring finalisation.

AND IT IS FURTHER ORDERED THAT

15.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

16.A Transcript of the submissions made by Mr McGregor of Counsel on behalf of the Applicant father in relation to costs be obtained and marked as Exhibit 5 in the proceedings today and be provided to the parties.

17.Within 14 days of receipt of the Transcript of submissions in relation to costs, the mother file and serve any submissions in response to the application made by the father for an order for costs.

18.Within 7 days of receipt of any submissions by the mother in relation to costs, by the mother, the father file and serve any submissions strictly in reply.

19.The father’s oral application for costs be considered in 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 r 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estrada & Nemes (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HOGAN J:

1. These proceedings require the determination of those parenting orders which are in the best interests of the child X who was born in 2011.

2. It is sufficient in the circumstances to recount that X’s parents were in a relationship from about February 2009 until about either mid-2017 or January 2018. Whatever the actual date of the end of their personal, intimate relationship, it seems relatively clear on the material before me that between January 2018 and about November 2019 X lived with each of his parents in an alternate week-about arrangement.

3. For a period of that time, albeit on the father’s evidence not for terribly long, X was accompanied in that care arrangement by W, his half-brother (the mother’s son) who was born in 2008. Until sometime relatively soon after the January 2018 date of separation, W thought that the father in these proceedings was his biological father. That is not the case.

4. Returning then to X’s care arrangements, it seems apparent on the evidence before me that it was in about November 2019 that information about W’s actions toward X in April of that year became known outside of the mother’s immediate family. I accept on the evidence before me that those actions, which appear on the evidence to have occurred in April 2019, were not known to the father until sometime after November 2019.

5. I also accept that the father did not learn of those asserted events by W towards X via the mother and that it seems much more likely than not, on the evidence before the Court in these proceedings, that the mother and her husband, Mr B, determined that they would deal with W’s behaviour towards X within the family. It also seems much more likely than not, on the evidence before the Court, that both the mother and Mr B joined together in a decision to seek to have none of the children within their care speak of those events until one of those children made a comment at school that ultimately led to the discovery, outside the mother’s immediate family, of those events.

6. It also seems, looking chronologically at the matter, to be more likely than not that, after the events between W toward X became known, a subsequent allegation was made, with the mother’s assistance, by W to allege that the father in these proceedings had previously acted inappropriately and sexually abusively toward him. Those allegations made against the father have been the subject of police and other consideration. No charges have been laid, and there is nothing in the material before me to persuade that it is more likely than not that the father ever acted inappropriately towards W.

7. However, at least in part, as a consequence of the making of the allegations, X’s time with his father was suspended.

8. Following that determination, the father commenced proceedings in the Federal Circuit Court in mid to late-November 2020. The matter was subsequently transferred to this Court and, on 24 March 2020, Senior Registrar Spink made an order that X live with his father and spend time with his mother each Sunday between 9.00 am and 5.00 pm and each alternate Saturday between 9.00 am and 5.00 pm. The mother was also restrained by that order from permitting W to come into contact with X.

9. On the evidence before the Court, it appears that the 24 March 2020 order was implemented, albeit with associated difficulties, until sometime in about December 2020 – at which stage the father moved with X interstate to live at a location that is unknown to the mother.

10. Subsequent to that period of time and between about mid-December 2020 and about mid‑March 2021, X spent no time at all with his mother. From about mid-March 2021 onwards, orders have been made for him to communicate with her on three occasions per week – although the father’s evidence, in effect, is that a large number of those calls (particularly more recently) have gone unanswered.

11. It is against that background, then, that the Court is asked to consider the parenting proposals proffered, in particular, by the father.

12. The difficulty in considering any information provided by the mother to Mr L, who has prepared two reports to assist the Court in its deliberations, is that she has failed to participate in any meaningful way in these proceedings since filing an affidavit that dealt with parenting issues prior to the March 2020 hearing before Senior Registrar Spink.

13. Subsequent affidavit material and engagement by the mother has really focused upon, more recently (particularly her Application in May of this year) adjourning the trial from its then listed hearing dates. The issues associated with that Application have already today been the subject of detailed discussion in Reasons I delivered in support of my decision to continue to hear the matter on an undefended basis and in the mother’s absence.

14. The father’s proposal for orders was originally as outlined in the Case Information document filed on his behalf on 4 May 2021. The orders particularised in clauses 2.4 and 2.5 of that document are no longer sought.

15. Whilst the father continues to seek orders as particularised in clauses 2.1 to 2.3 inclusive of the Case Information document, Mr McGregor, counsel who appeared for him, outlined during the course of his submissions on behalf of the father that the father was agreeable to orders which would permit the mother to send gifts and cards and presents to, and to communicate by email with, X; that he would notify her of serious medical emergencies and hospitalisation; that he would provide to her a copy of school reports that relate to X, on the proviso that such reports have information as to the locality redacted from them prior to provision; and that he would support orders being made for X to have the opportunity to communicate with his mother by telephone, or WhatsApp, or FaceTime or other such electronic means on various celebratory days, including Christmas Day, Good Friday and birthdays.

16. When interviewed by Mr L in June 2020 (that is, for the provision of the first Magellan Report) the mother’s proposal was that orders should be made for X to live with her and spend time with his father from after school Thursday until before school Monday each alternate week. When interviewed by Mr L in May 2021 for the preparation of the updated Magellan Report, the mother’s proposal was that orders should be made for X to live with her and spend time with his father each alternate weekend.

17. Whatever criticisms have otherwise been levelled at the father and his care of X – for example, to Mr L or as contained in the mother’s earlier affidavit material – they clearly were not such as to persuade the mother that it would not be in X’s best interests to spend block time with his father on a regular basis.

18. The Independent Children’s Lawyer, through Mr Ashcroft who appeared on his behalf, submitted that X’s best interests would be met by the making of orders that would see him continue to live with his father; that the father be accorded sole parental responsibility for major long-term issues relating to X; that X have the opportunity to have telephone communication at a specified time and also be afforded the opportunity, if he chose himself to take it, to communicate with his mother by email and other electronic means at all reasonable times. The Independent Children’s Lawyer also supported the making of orders that would require the father to provide information contained within school reports to the mother, together with information if X suffered a significant injury or was involved in a significant medical emergency.

    APPLICABLE PRINCIPLES

19. In these proceedings, being proceedings for a parenting order in relation to X, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), make such parenting orders as I think proper. I must have regard to the objects of Part VII of the Act and the principles which underpin those. In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.

20. The matters to which regard must be had in determining those parenting orders which are in X’s best interests are prescribed by s 60CC of the Act.

21. The requirement to consider each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion. Any failure in these Reasons, delivered orally on an ex tempore basis, to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in X’s best interests.

22. Whilst the Act does not define the term “meaningful relationship”, nor does it prescribe criteria by which the Court should assess how any child’s parents have or should have a meaningful involvement in that child’s life, the Full Court in McCall & Clark[1] concluded that the preferred interpretation of the phrase “benefit to a child of a meaningful relationship” is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that that child has the opportunity to have a meaningful relationship with both parents.

    [1] (2009) FLC 93-405.

23. That is, I am required to consider and determine whether there is a benefit to X in having a meaningful relationship with each of his parents; that finding is not dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent. If I determine that there is, for X, a benefit of having a meaningful relationship with both parents, then I must also consider and give particular and determinative weight to whether the benefit needs to give way to the requirement to protect him from physical or psychological harm.

24. Mr L in each of the Magellan Reports undertook a discussion and assessment of the benefit to X of having an opportunity to have a meaningful relationship with both of his parents. I am persuaded on the evidence before me that there is such a benefit to him of having the opportunity to have a meaningful relationship with his father.

25. Insofar as the benefit to him of a meaningful relationship with his mother is concerned, a consideration of the extent to which this exists is, of course, made difficult by the mother’s decision to choose not to participate in these proceedings – a decision that needs to be assessed against the information contained within the most recent, updated Magellan Report whereby Mr L recorded that the mother told him, amongst many other things, of her view that the father’s proposal for the orders for X’s interaction with her (namely, that there be none) was “horrible” as it demonstrated, in essence, that the father failed to appreciate the impact on X of not having any contact with her; given her involvement in a historical way in X’s life, she could not see how X would benefit from being cut off from her; and that no parent should be cut out of a child’s life.

26. That the mother appreciated and expressed those views to Mr L makes her decision to fail to participate in these proceedings – so as to seek to advocate for orders for X’s opportunity to communicate and/or (potentially) spend time with her – even more inexplicable.

27. In any event, I am left, though, to take into account, and I do, Mr L’s assertions and assessment of one of the benefits to X of having the opportunity to have a meaningful relationship with both of his parents (in this case his mother) as including that he would benefit from the unique physical and emotional resources she could offer to him.

28. Again, the mother’s decision not to seek orders and not to appear makes it difficult to say much more than that.

29. I am, as a matter of law of course, required to prioritise the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Whilst I have already recorded my assessment of the benefits to X of the opportunity to have a meaningful relationship with his father, it is also, I think, relevant and appropriate that I record specifically that, when cross-examined by Counsel for the Independent Children’s Lawyer today, the father’s clear evidence included that he could see no benefit to X of having telephone communications with his mother; that, when asked if he thought X loved his mother, his response was to say that he did not know, he could not answer and that it was a hard one; and, further, to say that he did not think that X missed his mother.

30. Those comments and the father’s clear evidence given today causes me some concern about the likelihood of X’s relationship, in an ongoing sense, with his mother being maintained whilst he continues to live primarily with his father. It is also one of the reasons why I intend to make an order, contrary to that advocated for by Mr McGregor on behalf of the father, which will require the father to ensure that X is provided with the opportunity to have weekly communication with his mother. I have taken this into account in arriving at my decision that such an order is one that is in X’s best interests.

31. I have taken the father’s evidence as to the frequency and the number of occasions on which the calls he has made have not been answered by the mother into account; but I have also taken into account that an order that requires X to be afforded the opportunity to communicate with his mother on a weekly basis will represent a significant reduction in the frequency of telephone or electronic communication from that which is currently ordered – that being on three occasions per week. I am hopeful that reducing the frequency of the communication will address some of the anxieties that have been reported by Ms K – upon whom X has attended and from whom he has received therapeutic support in the period from May until more recently this year.

32. I have also taken into account Ms K’s reporting (contained in her report) to the effect that her observations included that X appeared more settled and secure in the telehealth consultations that had occurred this year – that is, after his move away from the location in which he had previously lived which had made face-to-face time possible; and that he was less anxious. I also have taken into account that one of his significant concerns, at least in his engagement with Ms K, appears, on her report, to have been that his mother would withhold him from his father and might take him from school and she thought that that anxiety remained and that he remained anxious and stressed about his mother taking him from his father.

1. The orders that I will make will ensure that X continues to live primarily with his father and, by virtue of that, I am hopeful that anxiety can be put to rest; and that, with a reduction in the frequency of the telephone communications between himself and his mother, his anxiety will be further reduced. I have also determined that making an order for weekly telephone communication opportunities is one of the only ways in which I think it likely that any ongoing relationship between X and his mother will be able to be maintained – such that he will have, at least, the opportunity as he grows older to form his own view about whether he wishes to take up what his father has told me he would support: namely, an independent seeking by X of the opportunity to communicate and/or spend time with his mother in the future.

2. I do not intend to discuss further in more significant detail matters relating to the issue of the need to protect X from harm – other than to record, as I already have, that the investigations into the father did not lead to any charges or any concerns about X’s safety when in his care; that the observations of X when with his father on each of the occasions when Mr L had the opportunity to observe them together did not raise any concerns and in fact, on the first occasion, X was said to be particularly delighted in his father’s company and to enjoy the same.

3. It is, I think, appropriate that I record my concerns about the manner in which the mother and Mr B managed the issue of W’s behaviour towards X. As I have already indicated, on the evidence before me, it appears more likely than not that each of them was aware of that event contemporaneously with its occurrence; that both of them decided that the father would not be informed of it; that both of them either actively, or by way of failing to check the actions of the other, joined in and attempted to ensure that that information about W’s behaviour towards X did not become known outside their family unit; that, consequently, neither X nor W received, on a contemporaneous basis, therapeutic support which may well have assisted each of them to deal with what had happened and to consider whether, given their previous relationship as brothers, there was, for them, any prospect of maintaining that relationship in some way into the future as they each grew older.

4. All of those matters seem to me to do the mother no credit at all.

5. I have also taken into account – albeit that, given the mother’s determination not to participate in these proceedings, it is unnecessary to do more than record that I have taken it into account – the evidence which touches upon, in particular, Mr B’s communications with not only the father but the school into which the mother unilaterally, it seems, enrolled X in around 2019; and that, at least from the perspective of members of that school’s teaching and administrative community, his behaviours and attitudes toward them were aggressive and capable of, and certainly regarded by them as, constituting threatening communications.

6. I have also taken into account X’s reported views: again, as contained in the Magellan Reports of Mr L and as referred to by Ms K, noting though that, as I understand it, Ms K’s engagement has proceeded on the basis of her receipt of information provided by X and the father only and absent the mother’s engagement with that process.

7. To the extent that it is appropriate to take into account and place weight upon X’s views, as expressed to Mr L and to Ms K, I have done so.

8. I am particularly concerned – and record the concern of the Court – that, as Mr L remarked, there has been a substantial shift in X’s views of his mother in the time between the interviews undertaken by Mr L; that what appeared to have been a more positive relationship at the time of the first and initial interviews has, by the second set of interviews, deteriorated in the manner that Mr L reports. I also have taken into account his postulation of the possibility that X is reluctant to openly enjoy a relationship with his mother because this could be seen by his father as a betrayal; I note that Mr L appears to have raised that possibility on the basis that, at the time of that interview, X had not spent any time with his mother in the previous five months, yet his views of her seem to have become more negative and absolute in the absence of face-to-face contact.

9. I have also taken into account that, when interviewed by Mr L on the most recent occasion, X told him that he did not feel safe in his mother’s care; that he cried profusely as he spoke with Mr L; when Mr L asked him, given that during the first interviews he had told Mr L that he felt safe with his mother and had identified positive aspects of her care, what had changed since then, X’s response included that: “back then I did not have a voice”; and that he was now able to say things he was not able to before.

10. It seems that both Ms K and Mr L joined in raising the prospect that X may be in a situation of experiencing loyalty conflicts or loyalty binds which create anxiety for him and which amount to an internal conflict which creates and maintains his anxiety. Their joint identification of that possibility certainly seems consistent with Mr L’s reporting of X’s interaction with each of his parents during times when he was not spending time with each of them.

11. Again, the mother’s determination not to participate in the proceedings to seek to advance her case for parenting orders means that there is no necessity for me to consider that issue any further.

12. As I have already adverted to, that the mother raised the orders she did with Mr L on each of the occasions she spoke with him certainly suggests that, irrespective of any other assessment, she did not consider X would be at any risk of harm if he were to spend extended, unsupervised time with his father.

13. There is no evidence before the Court to suggest that the father has failed to meet any of X’s day-to-day or practical physical needs in the time since he has lived primarily with him.

14. I maintain my concern about the father’s capacity to meet X’s emotional needs and, particularly, his attitude toward the mother – even taking into account the submissions made by Mr McGregor to place those concerns in context.

15. Had the father’s attitude toward X’s relationship with the mother had its genesis only in the communications to which he was exposed after the making of the March 2020 orders, I may have formed a slightly softer view in relation to that issue.

16. I accept, generally, the submissions made by Mr McGregor insofar as they relate to the manner in which I should regard the father’s evidence about the impact on him of the behaviours to which he was exposed after the making of the March 2020 orders: that is, I accept, as it is not challenged, his evidence that he felt fearful as a consequence of receiving a number of communications from unknown, albeit suspected, sources directed towards first, a complaint to his employer, which had consequences for him; secondly, by way of broad category, receipt of information from various sites, to which he had not signed up, offering to engage with him in casual sex; thirdly – and, I think, most importantly – the receipt by his mother (the paternal grandmother) and his sister (the paternal aunt) of the contact from the two individual funeral directors in response to website requests for assistance to deal with his (the father’s) funeral.

17. The latter actions and the latter communication, I think – taken in context with the father’s evidence of the other communications he had received – are certainly capable of causing a person to experience the fear and concerns that the father gives evidence of experiencing.

18. Whilst one of those events – other than the communication from the funeral homes – may have been able to have been explained away as being the actions of juvenile responses to orders with which a parent is unhappy, taken in context and cumulatively, it seems to me that those actions (together with the other events, to which Mr McGregor made specific reference in the course of his submissions) provide, I think, an understandable basis for the father’s actions.  Athough I do not condone – nor should my comments be heard as condoning – the father’s actions in moving X’s residence before seeking to change the interim orders of the Court. There was a clear delay between his unilateral decision to relocate X, which involved removing him from his school and from the opportunity to have weekly time with his mother, and the time when he applied to the Court seeking to change the parenting orders.

19. Absent the accumulation of events, I think it highly likely that I would have been highly critical of the father’s unilateral decisions in that regard.

20. I have also taken into account, in arriving at the orders that I think are in X’s best interests, Mr McGregor’s submissions about the impact on the father’s attitude towards the mother; I have taken into account that his attitude toward her could not fail to have been impacted adversely by his belief that, given the timing of events and the timing of the communications and actions to which he was subjected, it was more likely than not that the mother and/or Mr B, acting in concert, were the persons responsible for the same.

21. Those things are acknowledged by the Court in its determination of the orders that are in X’s best interests.

22. I have already made some comment about my assessment of the likely effect on X of the making of an order that reduces the frequency of his opportunity to communicate via electronic means with his mother. I do not intend to make any further comment in relation to that.

23. Whilst Mr L noted, in the first Magellan Report, that there had been no protection orders between the parents, a nationally recognised Domestic Violence Order was made by the Magistrates Court in the father’s favour on 5 July 2021. It is an order that will remain in force until and including 4 July 2026; its terms include that the mother is prohibited from: locating or attempting to locate or asking someone else to locate the father; attempting to or entering or remaining within 100 metres of where the father lives and works; approaching within 100 metres of the father at any place; using any internet or any other communication device, including social network sites, to communicate with, publish pictures to or make adverse comments concerning the father.

24. Given the existence of that order it is, perhaps, unsurprising, that the father did not press for the making of the injunctive relief originally sought.

25. It is clear, insofar as any assessment of parental relationship is required consequent upon the mother’s failure to engage in this process, that the post-separation parental relationship in this case has been one that has been highly conflictual. Ms K comments to that effect, albeit based upon the limited information to which I have already referred: her assessment includes that the post-separation parental relationship lacks constructive communication and that there exists a significant level of mistrust between the parents. Taking up Mr McGregor’s submissions on behalf of the father, given the father’s evidence of the things he has been asked to endure after the making of the March 2020 orders, that is perhaps unsurprising. The state of the parental relationship was also the subject of assessment and discussion by Mr L in the updated Magellan Report, wherein he assessed that: these parents have been unable to develop a functional co-parenting relationship; one or either of them has focused energy on either provoking or inciting fear in the other and/or misleading the Court; it is clear, even on the mother’s recounting to him, that these parents cannot communicate; whatever co-parenting relationship existed at or around the time of their separation has deteriorated and has continued to deteriorate further.

26. Those assessments are clearly also relevant to an assessment of the manner in which it is appropriate and in X’s best interests that the allocation of parental responsibility is addressed.

27. The presumption that it is in X’s best interests that his parents have equal shared parental responsibility for him is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in his best interests for his parents to have equal shared parental responsibility for decisions about the major long-term issues relating to him.

28. The presumption does not apply if the Court has reasonable grounds to believe that a parent has engaged in family violence. The term “family violence” is defined in s 4AB of the Act to mean, for the purposes of the Act, “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”. The phrase “family member” is not specifically defined in the section, other than by short-form reference to the phrase “a member of the person’s family”. Reference to s 4 (the definition section of the Act) for particular definition of the phrase “member of the family” results in a circularity given its reference to s 4AB of the Act.

29. I am persuaded, in the absence of any evidence to the contrary and given the mother’s failure to engage in the proceedings, that I should accept the father’s evidence about those matters to which he was exposed after the making of the March 2020 orders. It seems highly likely that the mother and/or Mr B were, in some way, responsible for those events. To the extent that their actions or the actions of one of them is likely to have been responsible for the receipt by the paternal grandmother and the paternal aunt of the communications they deposed to and the impacts upon them (namely, that that caused them to be fearful) seems to me – even irrespective of the father’s evidence – to satisfy the definition of “family violence”, such that I am persuaded that the presumption in this case is rendered inapplicable.

30. A consequence of that conclusion is that the power to make parenting orders pursuant to s 65D of the Act is at large, albeit subject always to X’s best interests being the paramount consideration.

31. Even if I am wrong in my conclusions and I am wrong in arriving at the determinations of fact I have arrived at in order to conclude the presumption is inapplicable, I am easily persuaded in this case that it is not in X’s best interests for his parents to have equal shared parental responsibility for him.

32. On the evidence before me, and noting the mother’s failure to engage in the proceedings, I am persuaded that it is in X’s best interests for the father to be accorded an order for sole parental responsibility for the major long-term issues relating to X.

33. Whilst it was not the subject of discussion between myself and Counsel, I also gave consideration to making an order that would have required the father to seek out the mother’s input prior to making a decision within the exercise of the sole parental responsibility order, to take whatever response into account and then to inform her of that decision. However, her history of non-compliance and non-participation in the proceedings, together with the assessments of the parental relationship to which I have already referred, persuaded me that it is not, at this stage, in X’s best interests to make such an order, nor to require the father to undertake that exercise.

34. I certainly accept the father’s evidence, given orally today, which complements the evidence of Ms K and that of Mr L (to which I have already referred) about the issue of the parental interactions – it is more likely than not, in any event, that these parents simply are incapable, at this stage, of reaching any joint decisions about matters relating to X.

35. X has, as I have said, lived primarily with his father since the making of the March 2020 orders. Any change to those orders would have the obvious consequence of disruption to his care arrangements. I am not, on the evidence before me – noting, again, the mother’s determination not to participate in these proceedings – persuaded that could possibly be regarded as being in his best interests.

36. I am persuaded, therefore, on the evidence before me – noting the mother’s failure to participate – that X’s best interests are currently met by an order, made on a final basis (to the extent that any parenting order can be final), that will see him continue to live with his father.

37. For the reasons expressed, then, in the circumstances of this case I am persuaded that the orders to be made are appropriate and in X’s best interests.

38. The orders, when issued, will issue in my usual terms to give effect to each of those matters I have outlined – particularly in relation to affording X privacy.

39. I should also, I think, properly record my view that any subsequent application by the mother for parenting orders in relation to X needs to address the following, as a minimum:

    (a)by expert or other evidence: whether W represents a risk to X; and

    (b)whether W has participated in counselling to address his behaviour to X in April 2019 and that the same has been addressed in a manner such that he would not represent an unacceptable risk to X should they be permitted to spend time together; and

    (c)whether the mother and Mr B have done protective behaviours training to educate themselves about matters, including W’s behaviour towards X in April 2019; and

    (d)how the mother would propose to keep X safe and that he not be at an unacceptable risk of harm if he were to spend time with her whilst W remained living in her primary care; and

    (e)the issue of the mother’s knowledge of W’s behaviour toward X, including when she first became aware of this, how and what she had done to address the same; and

    (f)lastly, how the mother would propose to deal with a reinstatement of in-person time between herself and X given the absence of the same since about December 2020 and the circumstances that the father alleged arose after the making of the March 2020 orders.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       1 September 2021