Fadel & Gibbons
[2023] FedCFamC2F 679
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fadel & Gibbons [2023] FedCFamC2F 679
File number: PAC 1807 of 2021 Judgment of: JUDGE STREET Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – PARENTING – Maternal grandparents – no time for father Legislation: Family Law Act 1975
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: A v A (1998) FLC 92-800
A & Z [2006] FamCA 179
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 1 and 2 June 2023 Place: Sydney Applicant’s Representative: Mr T Iuliano of Counsel Solicitor for Applicant: Gonzalez & Co Second and Third Respondent’s Representative: Ms C Spain of Counsel Solicitor for Second and Third Respondent: Bell Lawyers Independent Children Lawyer’s Representative: Mr L Reeves of Counsel Solicitor for the Independent Children’s Lawyer: Laura K Law ORDERS
PAC 1807 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FADEL
Applicant
AND: MS GIBBONS
First Respondent
MS B HANEEN
Second Respondent
MR C HANEEN
Third Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
2 JUNE 2023
THE COURT ORDERS THAT:
1.That the child X born 2019 (“the child”) shall live with the Maternal Grandparents Mr C Haneen and Ms B Haneen, being the Second and Third Respondents.
2.That the Second and Third Respondents, Mr C Haneen and Ms B Haneen, shall have Equal Shared Parental Responsibility for the child.
3.That the child shall spend time with the Mother supervised by either the Maternal Grandmother Ms B Haneen or Maternal Grandfather Mr C Haneen, being the Second or Third Respondents, and such time shall be agreed to in writing as between those parties.
4.That the child shall have no time with the Father.
5.The father shall be permitted to send letters, photographs, gifts and/or cards to the child by providing such things to the Maternal Grandparents and the Maternal Grandparents shall be at liberty to determine whether such things are deemed appropriate to be provided to the child.
6.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the child, the Second and Third Respondents, Mr C Haneen and Ms B Haneen, shall be restrained from:
(a)Allowing the child to come into any form of contact with Mr E, being the Mother’s current partner;
(b)Allowing the child to come into contact with the Mother if they are of the belief that she is under the influence of either illicit substances and/or alcohol.
7.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the child, the Mother shall be restrained from allowing the child to come into contact with any male partner when spending time with the child without the express permission of the Second and Third Respondents.
8.That for the purposes of the Australian Passports Act the Second and Third Respondents are the only persons with parental responsibility for the child, and are hereby at liberty to apply for the issue, and/or renewal of an Australian Passport for the child under the provision of section 11(1)(b) of Australian Passports Act 2005, without the written consent of either the father or mother.
9.Pursuant to s 65Y of the Family Law Act 1975 the Second and Third Respondents are permitted to remove the child from Australia without the consent of either the father or the mother provided that the Second and Third Respondents notify the mother at least 2 weeks prior to travel.
10.The Second and Third Respondents are to inform the First Respondent as soon as practical of any specialist medical appointments with any psychologist, psychiatrist, counsellor, therapist or any other medical profession in relation to the child, with the First Respondent, the Second and Third Respondents being able to obtain all reports by any such consultant and speak to such consultant as they so wish at their own cost.
11.The First Respondent, the Second and Third Respondents be at liberty to contact the school at which the child may attend from time to time to obtain information about the child’s progress including obtaining copies of school photos, reports and other information normally provided to parents and each party shall do all things necessary to authorise the school to release such information to the First Respondent, the Second and Third Respondents at their own cost.
12.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the child, the Applicant Father is restrained from attending upon any school which the child may attend from time to time.
13.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the child, the Applicant Father is restrained from attending upon any residence of the Maternal Grandparents which they may reside in from time to time.
14.The Independent Children’s lawyer be discharged from the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fadel & Gibbons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These parenting proceedings under Part 7 of the family law act were commenced on 8 April 2021 in respect of the child X (the child) born 2019. The first respondent (the mother) and did not comply with the Courts trial directions and has not appeared. The Applicant (the father), although his initial position was different, effectively he accepted that the second and third respondents (maternal grandparents) should have joint parental responsibility. The real issue was whether the father should have supervised time conditional upon steps of the same kind as identified in the Order dated 1 February 2022.
UNDEFENDED HEARING AGAINST THE FIRST RESPONDENT
In determining to proceed in relation to an undefended hearing pursuant to rule 1.33(2)(c) of the Family Law Rules, the Court has taken into account the following law; Lanceley & Lanceley [1994] FamCA 94 as affirmed in A & Z [2006] FamCA 179 at [66] and Zane & Allen [2008] FamCAFC 115.
66. The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
“A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly ‘undefended’, and it would be a misuse of language to describe them otherwise. They certainly could not be described as ‘defended’.”
The Court has also taken into account the overarching purpose and objectives in s 190 of the FCFCOA Act and the principles in s 43 and s 69ZN of the Act. The Court is satisfied that there has been default under r 10.26 of the Family Law Rules, enlivening the powers under r 10.27. The Court is satisfied that this is an appropriate matter, in the interests of the administration of justice, in which to proceed as an undefended hearing and has accordingly made an order to that effect.
The Court was satisfied that the mother was aware of the hearing date, and within Rule 10.26 and 10.27 is in default of the Courts Orders and has failed to appear at the hearing. The Court is satisfied that the mother was on notice of the orders being sought by the maternal grandparents and the ICL as well as by the father. The Court unsuccessfully attempted to contact the mother by mobile and taking into account the following principles, the Court was satisfied that this was an appropriate matter in which to make an Order that the parenting proceedings continue as against the mother as an undefended hearing. The Court is satisfied that it is in the best interests of the child that the proceedings so far as concerns the mother proceed as an undefended hearing. The Court reserved its written reasons in that regard and is satisfied that it is was in the best interests of the child to do so. These reasons include the reasons so reserved.
CHRONOLOGY
DATE EVENT 1972 Respondent 2, Ms B Haneen, is born, currently 51 years old
(“Maternal grandmother”).1972 Respondent 3, Mr C Haneen, is born, currently aged 49 years old
(“Maternal grandfather”).1982 Mr E, mother’s partner born, currently aged 41 years old. 1989 The applicant father, Mr Fadel, is born, currently 33 years old. 1990 The respondent mother, Ms Giboons, is born, currently aged 32 years. 1997 Mr D, the son of Respondent 2 & Respondent 3 is born. Currently 25 years old. 1998 Respondent 2 & Respondent 3 were married. 2009 The mother’s child to a previous relationship, F, is born.
Currently 13 years old.2011 The mother’s child to a previous relationship, G, is born.
Currently 12 years old.2017 The mother and father commence a relationship. The father moves in with the mother, F & G at her rental property situated at H Street, Suburb J. Mid-2018 ADVO is issued protecting the mother from the father. 2018 The mother calls the maternal grandparents crying saying words to the effect of “Come and get me please. He’s hitting me on my stomach and kicking me”. The mother is pregnant with the child at this time. The mother chased the father out of the house with a knife and ended up slashing his tires. The police and the maternal grandparents both arrived at the mother’s house after the father has left. G & F are home during this incident. The mother and maternal grandmother attend Town K police station to make a report regarding the father. Both parents have ADVOs made against them for the other's protection. The father is convicted of breach ADVO and incarcerated for a period in late 2018. The mother is also charged. 2019 The child, X, is born. Currently 4 years old. 2019 Father breaches the ADVO and is incarcerated. 2020 Father is incarcerated for breaching ADVO protecting the mother. February 2020 Father last sees child over video call. March 2020 The parties separate on a final basis. March 2020 Mother commences a relationship with Mr E. Mid 2020 The mother, G, F and the child move in with the maternal grandparents. The mother leaves a few months after with the child. G and F remain. Mid-2020 Father is released from prison. Intensive corrections Order in place. Late 2020 The mother and the child move back in with the maternal grandparents. Early 2021 ADVOs are breached. Early 2021 The mother moves out alone. The maternal grandmother asks her “why are you leaving on your own?”, the mother says, “I need to get my head straight”. Since this date, the child has been living with the maternal grandparents. 8 April 2021 The father commences proceedings seeking orders for the child to live with the mother and spend time with the father, and that this time eventually progress to an equal living arrangement between the parties. Early 2021 Final ADVO orders made against Mr E for the mother and children’s protection. Expired early 2022. July 2021 The maternal grandmother’s solicitor writes to FACS informing them of the commencement of Family Law proceedings. FACS file for F, G & the child is now closed. 4 August 2021 The father files Amending Initiating Application Maternal grandparents are joined to the proceedings. 1 February 2022 Orders are made by consent at Interim Hearing. Orders provide for:
• the child to live with the maternal grandparents
• the child to spend supervised time with the father upon the father producing at least 2 clear hair follicle tests
• the father to complete the Taking Responsibility course in addition to either 123 Magic or Triple P Parenting
• the maternal grandparents be restrained from allowing the child to come into contact with the mother’s partner, Mr E
The father does not provide two clear hair follicle tests and thus, has not spent any time with the child.
24 October 2022 Family Report is released to the parties. December 2022 The mother spends time with the child at the maternal grandparent’s house with the grandparents present. December 2022 The mother spent time with the child at the maternal grandparent’s house with the grandparents present. February 2023 The child has telephone contact with the mother which is supervised by the maternal grandparents. March 2023 The child has telephone contact with the mother on 4 occasions, which is supervised by the maternal grandparents. March 2023 The mother spends time with the child at the maternal grandparent’s home with both grandparents present. April 2023 The child has telephone contact with the mother on 6 occasions, which is supervised by the maternal grandparents. April 2023 The mother spends time with the child at the maternal grandparent’s house with the grandparents present. April 2023 The mother attended G and F’s football game. The maternal grandparents are present. DOCUMENTS RELIED UPON
The applicant father relied upon the following affidavit admitted into evidence:
(a)Affidavit of Mr Fadel filed 29 May 2023;
The second and third respondents relied upon the following affidavits admitted into evidence:
(a)Affidavit of Ms B Haneen filed 4 May 2023;
(b)Affidavit of Mr C Haneen filed 4 May 2023;
EVIDENCE
The following material was tendered into evidence:
·Exhibit A - Notice of Child Abuse, Family Violence or Risk of the Applicant Father filed 8 April 2021;
·Exhibit B - Notice of Child Abuse, Family Violence or Risk of the Second Respondent filed 24 August 2021;
·Exhibit C - Notice of Child Abuse, Family Violence or Risk of the Third Respondent filed 25 August 2021;
·Exhibit D - Family Report completed 23 October 2022;
·Exhibit E – Tender Bundle of the Second and Third Respondents filed 1 June 2023;
·Exhibit F – Video footage of bathroom incident occurring 2 September 2018;
·Exhibit G – Tender Bundle of the Second and Third Respondents – s69ZW documents provided 2 June 2023;
·Exhibit H – Tender Bundle of the ICL – s69ZW documents provided 2 June 2023;
·Exhibit I – Tender Bundle of the ICL – additional s69ZW documents provided 2 June 2023.
The Court has taken into account the affidavit by the father and affidavits of the maternal grandparents. The Court has taken into account the exhibits referred to above. The Court has taken into account the Family report and the Cross Examination of the Family Report writer. There was no cross examination of the maternal grandparents.
The affidavit of the father admitted hitting the mother. The maternal grandmother’s affidavit identified family violence by the father including calls by the mother as to being hit and of a threat to cut their heads off when the mother was pregnant with the child. The grandmother also identified the activities being undertaken by the child and asked for orders for no time. The maternal grandfather’s affidavit corroborated the evidence of the maternal grandmother. The report by Ms L recommended that the maternal grandparents have shared parental responsibility and that the child live with them, spending time with the mother as agreed, but that there be no time with the father. The report records the interview taking place with the father whilst in jail for breaching ADVO orders. The report recorded that the father refuted he had ever perpetrated family violence. The report recorded the father’s contention that he was the victim of family violence by the mother. Any kick to the stomach of the pregnant mother was said to be in self-defence.
The family report records an assertion by the father of inability to share parental responsibility with the maternal grandparents. The father admitted using whatever was out there when 29 or 28 years old. The report identified the need for the mother’s mental health to improve and reflected a constructive environment with the child and her siblings F and G. The report recorded the maternal grandparents identifying the father as hitting and kicking the mother including in the stomach when pregnant. The report recorded that the two siblings were frightened of the father because of the family violence that they witnessed. The report recorded the involvement of the DCJ due to the former partners of the mother and because of their drug use and perpetration of family violence with adverse impact on the mother’s mental state. The mother was at that time on a drug program with daily medication. The maternal grandparents identified that the child did not have a relationship with the father or anyone else in the paternal family. Although clearly able to do so and the Court finds aware of these proceedings no evidence was put on by the paternal grandparents. The father’s suggestion of some discussion about other steps by the paternal grandparents if he was unsuccessful reflects a strategic and deliberate decision not to participate that will be a material factor as to whether there are changed circumstances if any such proceedings are brought in the future. The maternal grandparents expressed the concern that the child may be exposed to drug use or family violence if coming in to contact with the father. The maternal grandparents expressed the wish not to engage with the father. The report writer noted that the relationship with maternal grandparents with the mother is one of care and warmth but with issues about the mother’s current relationship.
In cross examination, the father admitted serious domestic violence in the short toxic relationship with the mother. Some of that domestic violence occurred whilst the child X was unborn and so in the presence of her half siblings, before and after her birth. There was a video played to the Court which the father admitted was him, of the father abusing the mother calling her a derogatory name and stating that he would kill the mother and the maternal grandparents. The father sought to explain this away as the heat of the moment, and that he did not intend to carry out the threats. The father’s affidavit to hitting the mother and there were records in the tender bundle marked exhibit F that recorded serious domestic violence incidents by the father. The father admitted breaching ADVO’s and admitted failing to comply with the Courts orders made on 1 February 2022. Those failures include, the failure to contact the Town K Child Centre within 7 days, a failure to undertake drug testing, and a failure to maintain hair length, a failure to undertake 2 specified courses and have ongoing consultation. The report found the child has a warm relationship with the maternal grandparents and that the child was uncomfortable spending time with the father. The child became teary with the father and was returned to the care of her maternal grandparents. The report recorded the child having a mutually warm and affectionate relationship with the maternal grandparents and that there was no relationship with the father.
The father has not seen the child since 2020 at the interview with the Child Court Expert. The father expressed the desire to comply with the steps identified in the interim orders for supervised access. The father asserted that he was unable to undertake the hair follicle tests due to the cost of the same and the length of his hair. The father gave evidence to the effect that he would be unable to undertake hair follicle testing as a precondition of supervised visits. The father explained that he had learnt from some parenting courses he had undertaken the importance and potential impact of his behaviour upon X. The father explained that he was in a toxic relationship and in summary sought to explain the alleged hitting and kicking as self‑defence. The father denied threatening one of the children and denied grabbing the mother by the throat and said that the mother was the aggressor and had stabbed or attacked him or otherwise provoked him in relation to the incidents involving the police. The Court heard oral evidence from the Child Court Expert, Ms L. Ms L agreed that a finding of serious family violence would re-enforce her recommendation for no time with the father. Ms L saw little or no benefit from trying to permit a relationship with the father or by making orders for supervised access. Ms L accepted that there may be an adverse impact of the child, depending on the circumstances if commenced visitation were to cease although she said it was a balancing exercise. The report identified the dependence of the child giver age on the primary carers and that it was likely she has experience extensive trauma associated with family violence and parental drug use. The report identified the importance of a safe stable responsive parenting to assist her focus and develop.
The report found that the father’s own description of his behaviour confirms that he has perpetrated family violence and was attempting to shift the blame to the mother. The report identified the need for the father to take responsibility for his actions and the prospect that the current unwillingness to undertake courses mean the same may be ineffective. The report writer referred to the coercive and controlling behaviour of the father as described by the mother and the serious risk of harm from exposing the child to family violence. The current relationship of the mother was said to be characterised by family violence. The report identified the adverse impact form drug use in meeting a child’s needs. The report commented on the exposure to the beliefs and values that had been shown by the father and adverse impact on the child and the potential for damage to her primary care arrangement being undermined or lost. The report identified the potential for egotism and the child blaming herself as to the absence of her parent. The report found that the maternal grandparents were meeting the child’s needs and keeping her safe. Because of the risks to the child it was recommended there be no time with the father.
Ms L described the child as being unnerved in the presence of the father and maintained concern as to the effect of drugs on potential aggressive, reactive and violent behaviour. Ms L agreed with counsel for the maternal grandparents that there were parts of the applicant’s affidavit that displayed continuing failure to take responsibility. Ms L agreed that the insights in the applicant’s affidavit as to the courses that he had undertaken were positive attributes, but explained the difference between knowledge and integration. Ms L said the failure to grow the applicant’s hair was not prioritising his child and her needs. Ms L explained the need for greater therapy of the applicant in understanding a parenting role and that the courses in the applicant’s affidavit did not alleviate her concerns. Ms L agreed some identity contact would be beneficial for the child.
The content of the police material and material from the DCJ in Exhibit F also support the father having engaged in very serious family violence. There was also tendered police records that contradicted the father’s evidence as to his drug history in Exhibits G and H. The Court also received into evidence the criminal event history of the father and mother identified in Exhibit I.
PARENTING PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally the following guidance emerges from authorities:
(a)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(b)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(c)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(d)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
SUBMISSIONS
The Court received a case outline from the father, the maternal grandparents and the ICL. The ICL and the maternal grandparents submitted that this was an appropriate case for the maternal grandparents to have joint parental responsibility and for there to be no time with the father. The maternal grandparents relied upon the significant admissions of domestic violence in the evidence of the father and submitted that the Court would prefer the evidence recalling incidents of serious domestic violence to the evidence of the father.
The father’s counsel submitted that the Court should continue the parenting orders made on 1 February 2022 so that if the father was able to undertake drug testing and complete the courses, he could seek to advance through supervised visits a meaningful relationship with the child. The father’s counsel invited the Court to impose appropriate pre-conditions before the commencement of supervised time, that would include drug testing, completion of the courses identified in the Orders dated 1 February 2022 and appropriate ongoing therapy by the father. The father’ counsel submitted that the insight shown in relation to the benefit of the courses undertaken support a finding that there would be benefit in taking steps to make orders to facilitate a relationship with the child. The father’s counsel submitted that although there had been serious family violence, it should be characterised as having occurred essentially in the toxic relationship with the mother. The father’s counsel submitted that the supervised access could progress and that given the supporting maternal grandparent environment, there is no unacceptable risk in progressing time with the father.
The father’s counsel supported the making of an identity order permitting communication by mail of appropriate communications including photographs, but did not seek any other form of identification order.
Counsel for the ICL and maternal grandparents maintained that no time was appropriate and were in substantial agreement on the proposed ICL orders. Counsel for the maternal grandparents opposed the inclusion of the photographs in the identity order, but this was not supported by the ICL.
FINDINGS AND CONCLUSION
Because of the family violence, any presumption of equal shared time with the father is rebutted and in this case, there is no issue but that the maternal grandparents should have equal shared parental responsibility.
The Court has taken into account the benefit of the child having a meaningful relationship with both parents. The mental health and drug issues in relation to the mother do not prevent her having a meaningful relationship with the child monitored by either of maternal grandparents. The child has a bond with and knows the mother and the proposed orders facilitate that ongoing meaningful relationship.
Although the Court accepts a degree of belated insight by the father, the Court is not persuaded given the significant family violence and failure to have taken the steps facilitated by the Orders made on 1 February 2022, that there is a real benefit for the child to have a meaningful relationship with the father. The Court also has to weigh the need to protect the child from harm, which must be given greater weight as a primary consideration. Given the very serious family violence perpetrated by the applicant in this case, the need to protect the child from harm outweighs any potential benefit of a meaningful relationship with the father.
In relation to the additional consideration, the child is too young to have expressed any view. The child’s relationship with the mother will continue under the orders made in a safe environment. The child currently has no relationship with the father, as evidenced by the child being unnerved when exposed to the presence of the father. The failure of the father to take up the opportunities provided pursuant to the Orders dated 1 February 2022, so as to participate and spend time with his child, reflects a significate period of failure by the father.
The father has not demonstrated prioritising the child’s needs over his own, as reflected in his failure to grow his hair and permit testing of the same. The mother’s ability to fulfil her obligation to maintain the child are adequately provided for by the proposed Orders. While the father has made this application for parenting orders, he is not otherwise performed any role as parent and could not be said to have maintained the child. The likely effect of orders requiring supervised time could adversely impact on the child given that her siblings were exposed to family violence by the father. Further, to compel supervised time could impact on the parenting ability of the maternal grandparents.
The threats made by the father on more than one occasion in relation to the maternal grandparents are obvious reasons why cooperating in supervised access would be extremely difficult. The proposed orders continue in effect the child’s current circumstances in relation to the mother. Supervised time would require travel by the maternal grandparents to the Town K child centre and communicating with the father, which could adversely affect the child both in relation to the views expressed and portrayed by the father, given his past conduct and by its impact on the maternal grandparents and siblings, who have been exposed to the father’s family violence.
The father has not demonstrated a capacity to provide for emotional and intellectual needs of the child, at the age of almost five, the child does not have the maturity to not be influenced by the father if time commenced and the father’s values if imparted to the child, could adversely affect the child as well as her relationship with the maternal grandparents and siblings. The child does not have aboriginal heritage.
The maternal grandparents have demonstrated an ability to responsibly discharge parental responsibility for the child. The mother in part recognises her lack of skills in the absence of opposition to the maternal grandparent’s orders. The father as belatedly some parenting courses, but the timing and limited nature of the same do not support the applicant currently having appropriate intellectual and emotional skills to advance and prioritise the needs of the child. The father’s desire to participate in parenting is understandable but is not supported by the history of family violence or by actions to comply with the Court earlier orders.
As indicated, the mother and child have been exposed to family violence perpetrated by the father. That family violence has been of an extreme kind, which on the evidence has had an ongoing impact on the mother, siblings, maternal grandparents and most probably the child. The father has not undertaken the steps necessary to show an integration of knowledge acquired through the limited coursed he has undertaken, nor has the father undertaken therapy and courses that permit an objective valuation of his participation, insight and learning.
As to the detrimental effects of family violence, or his capacity to walk away, the video incident in Exhibit F is inconsistent with the father’s claimed ability to walk away. There have been past ADVO’s which the applicant has breached and the Court cannot be confident that the father will comply with order by the Court, given his past conduct. The father admitted the breaches of ADVO’s and served custodial time for the same.
The Court is satisfied the proposed Orders are least likely to lead to institution of further proceedings. This is a case where the circumstances of the failure to take steps by the father to advance the necessary drug testing and courses so as to spend time with his daughter are not adequately explained by his assertion of want of funds or inability to grow hair. The father through his counsel conceded that his was not a case he could press for in respect of parental responsibility.
The Court finds that the incidents of family violence that were put to the father occurred and can be properly be characterised taking into account s4 definition of abuse and definition of family violence, as being serious family violence that rebuts any presumption of shared parental responsibility by the father. It was also apparent from the concession made by Counsel on behalf of the father, that any time between the father and the child would have to be conditional upon steps of the kind identified in the Orders of the 1 February 2022, and then to take place at a supervised contact centre.
The Court has taken into account the above principles and the greatest weight that must be given to the need to prevent exposure of the child to family violence pursuant to s 60CC(2A), Given greater weight in this case to the need to prevent exposure to family violence warrants a no time order. The Court finds that the history of serious family violence is such that this is a case in which the Court is satisfied there should be no time spent by the child with the father. The Court is satisfied that there is an unacceptable risk of exposure by the child to family violence if supervised access even at a supervised centre were to be ordered. The father has threatened the kill the maternal grandparents, whilst the father might be willing to put behind him his past family violence, those admitted threats demonstrate a real potential for physical or emotional harm to the child if the father becomes enraged.
The incidents involving the threat to kill the mother with the unborn child, being pregnant, as well as the maternal grandparents was one which the father said occurred unaffected by illegal drugs or alcohol. Having not undertaken the courses required by Orders 10 and 11 made on 1 February 2022, the Court is satisfied that the magnitude of the risk of harm and the seriousness of that potential risk in exposing the child to physical violence or adverse psychological impact of the same, make supervised time in this case an unacceptable risk.
The court also accepts the submission that the impact of requiring supervised time given the threats that were made to the maternal grandparents means that imposing a requirement for engagement with the father could detrimentally affect their parental responsibility and thereby have an adverse impact on the emotional wellbeing of the child. The Court finds the magnitude of the risk in the present case is sufficiently high, to make the potential for that emotional harm an unacceptable risk.
The Court accepts the submissions of the ICL and the maternal grandparents that this is a case where a no time order is in the best interests of the child. The Court does infer from the unsatisfactory explanation about the failure to comply with the hair follicle testing Order, there is real risk of the father being affected by drugs if attending a supervised visit. The Court finds that the father attended a supervised visit affected by drugs, there is a real risk of physical and emotional harm to the child. The Court finds the magnitude of that risk is high, and that the consequences of such emotional or physical harm is an unacceptable risk. The Court also finds that there is a real prospect even if supervised visits commenced, that the father would fail to comply with any future hair follicle testing regime, which would give rise to the potential need for suspension of visitation and that there is a real risk of emotional and physiological harm to the child from having commenced trying to bond with her biological father and then a cessation of that time.
The Court takes into account the young age of the child in that regard, but finds that the magnitude of that risk, given the failure to comply with earlier Court Orders is high and the gravity of consequences of adverse psychological impact and feelings of self-worth and blame by the child is an unacceptable risk. This is a case where there would be no benefit to the child from orders requiring supervised access or seeking to advance a relationship with the father. This is because of the very serious family violence that is being perpetrated and the potential adverse impact on the child with her relationship amongst her siblings if required to spend time with the father.
The Court finds that there is an unacceptable risk of emotional harm to the child through losing the benefit of her relationship with her siblings if required to spend time with the father The Court finds that the magnitude of that risk is high given the family violence observed by those children when living with the father and the Court finds that the consequences of impairing that emotional relationship with her siblings is an unacceptable risk. The Court is satisfied given the history to restrain the father from attending the residents of the maternal grandparents or the school which the child may attend. This is because of the history of family violence and the finding that it is in the best interests of the child to spend no time with the father. The Court is satisfied that it is also appropriate to restrain the first respondent from allowing the child to come into contact with any male partner including her former partner, Mr E, and to prevent contact with the child if the mother is under the influence of illicit substances or alcohol.
The Court finds that it is in the best interests of the child that there be a no time order in relation to the applicant.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 2 June 2023
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