FOSTER & MAILER
[2015] FamCA 369
•15 May 2015
FAMILY COURT OF AUSTRALIA
| FOSTER & MAILER | [2015] FamCA 369 | |
| FAMILY LAW – CHILDREN – Final parenting orders – undefended hearing – orders sought by mother for sole parental responsibility, father to spend no time with the child, not communicate with the child and seeking a change of the child’s surname – father currently imprisoned for having been convicted of charges relating to his conduct towards the mother and child – father due for release in 2017 unless paroled earlier – consideration of best interests of the child – orders made in terms proposed by mother. Family Law Act 1975 (Cth) s 4, 4AB, 60CC, 61DA. Beach & Stemmler (1979) FLC 90-692 Jordan & Lloyd and Ors [2010] FamCA 288 Kelley & Kelley (1981) FLC 91-002 Peters & Richards (No 4) [2013] FamCA 930 Raymond & Harold [2009] FamCA 155 | ||
| APPLICANT: | Ms Foster |
| RESPONDENT: | Mr Mailer |
| FILE NUMBER: | MLC | 701 | of | 2015 |
| DATE DELIVERED: | 15 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 2 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Andrew Robinson |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Lawyers |
| THE RESPONDENT: | No appearance |
Orders
Leave granted to the mother to proceed in the absence of the father
The mother have sole parental responsibility for the child B (male) born … 2006 (“the child”).
The child live with the mother.
The child spend no time with the father and the father not communicate with the child save by order of the Court.
The mother be at liberty to change the child’s surname and place of residence without notice to the father.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Foster & Mailer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 701 of 2015
| Ms Foster |
Applicant
And
| Mr Mailer |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an undefended application by the mother for a parenting order in respect of an eight year old child of a relationship, B. The respondent father is undergoing a lengthy term of imprisonment and has been served with all documents relied upon by the mother by way of post to the prison. The father has not filed any documents with the Court or made any request to participate by electronic communication.
The mother seeks an order for sole parental responsibility for the child, that the child live with her and have no communication or spend time with the father. The mother also seeks that she be at liberty to change the child’s surname and place of residence without notice to the father.
The parties began living together in 2004 and separated in 2008. The mother deposed that the child has not seen the father since he was one year old and the two have no relationship.[1]
[1] The mother’s affidavit sworn 2 February 2015 at [60].
The father is serving a term of imprisonment having been convicted of charges relating to his conduct towards the mother and child. These charges include breaching intervention orders, stalking, aggravated cruelty to an animal and intentionally damaging premises with intent to endanger life.
Procedural Fairness
The solicitor for the mother deposed in an affidavit of service sworn and filed on 25 March 2015, that a letter was posted to the warden of C Prison, requesting that the following documents be given to the respondent father:
a)letter to the father dated 4 February 2015;
b)Initiating Application filed 3 February 2015;
c)affidavit of the mother sworn 2 February 2015 and filed 3 February 2015;
d)affidavit – non-filing of family dispute resolution certificate filed 3 February 2015;
e)notice of child abuse, family violence or risk of family violence; and
f)Family Court pamphlet entitled “Marriages, Families and Separation”.
According to the affidavit of service, the letter to the father included information regarding participation via electronic communication in accordance with r 7.10 of the Family Law Rules 2004 (Cth).
The matter was listed for a directions hearing on 6 March 2015 and the father did not participate. On 11 March 2015 the mother’s solicitors sent the father a letter notifying him of the hearing on 2 April 2015 and informing him that if he did not participate in the hearing, the mother would seek the leave of the Court to proceed on an undefended basis.
On 13 March 2015 the mother filed an Amended Initiating Application which was identical to the original Initiating Application, save for the correction of a typographical error in the child’s date of birth. This was served on the father by post on the same day and confirmed the hearing date and the intention to proceed undefended should the father fail to participate in the hearing.
A subpoena hearing regarding a subpoena served upon Victoria Police was held on 20 March 2015. The father was again informed of this hearing by post and did not participate in the hearing.
The solicitors for the mother received an email from Mr D, prison officer at C Prison, confirming that the respondent father received the letters from the mother’s lawyers on each of 26 February, 13 March and 18 March 2015.
On the same day that the Initiating Application was filed by the mother, being 3 February 2015, Registrar Riddiford determined that there were reasonable grounds to believe that there is a risk of family violence by one of the parties and that there should therefore be an exemption from the requirement of filing a certificate from a family dispute resolution practitioner.
I am satisfied that the service of documents upon the father has brought this matter to his attention. I am satisfied that the father is aware of the date of the hearing and the nature of the proceedings. I am satisfied that he has had the opportunity to participate in the proceedings and that he has not indicated an intention to participate in the proceedings. I am satisfied that the father has been accorded procedural fairness and that it is appropriate to proceed in his absence.
Evidence and Standard of Proof
For the purposes of the hearing the mother relies upon the following documents:
·Initiating Application filed 3 February 2015;
·affidavit of the mother filed 3 February 2015;
·Amended Initiating Application filed 13 March 2015;
·Affidavit of Service filed 23 February 2015;
·affidavit of Anna Katheryn Parker, solicitor for the mother, filed 25 March 2015;
·affidavit – non-filing of family dispute resolution certificate filed 3 February 2015; and
·Exhibit A – statement of Senior Constable E sworn 9 December 2008.
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
a)the nature of the cause of action or defence; and
b)the nature of the subject matter of the proceeding; and
c)the gravity of the matters alleged.
I am satisfied that the mother has provided sufficient evidence on the balance of probabilities to prove her case. The father has not challenged her evidence or produced any credible evidence to counter her evidence.
Background
I accept the unchallenged evidence of the mother in her affidavit filed 3 February 2015 in the terms to follow, which is supported essentially by the findings of fact in the father’s criminal trial. Where I have found differences I have noted them.
The mother was the child’s primary carer from birth and the father was rarely home. The father provided only limited support in the care of the child. In mid-2008 the mother ended the relationship and asked the father to leave the home they then shared and the parties separated without incident. The mother was not subjected to family violence during the relationship.
Approximately two months after the end of the relationship, the father began stalking the mother, threatening her and subjecting her to serious violence. The father also has a long history of substance abuse including regular abuse of amphetamines.
The first incident of concern to the mother occurred in early August 2008 when the father told the mother that he was moving to F Town and requested to see the child in order to say goodbye. The father attended the mother’s flat and, after entering, said to her words to the effect of, “I’m not planning on going anywhere. I’ve come to do the job properly.” The mother took this to be a threat to her life and fled with the child. She stayed at the home of her parents for a few days.
The second incident occurred on 5 August 2008 at approximately 9.00 pm when the father attended the mother’s flat to collect his belongings. The father was initially pleasant but became rude and verbally aggressive on entering the flat and assaulted the mother by sitting on her chest, covering her nose and mouth with his hand and causing her to lose consciousness. The father then assaulted the mother for a period of approximately 4 and a half hours, during which time he cut her arms and legs with a paper cutter.
Although not reported to the police or the mother’s family, the mother deposed that the father raped her during this time and remained at the flat sleeping in the lounge room until the next morning. There was no charge of rape ever laid against the father and having regard to the seriousness of this allegation, I cannot make any finding regarding the allegation of rape.
During this time the child, who was then aged 21 months, was asleep in his cot in his bedroom about 50 feet away from the mother and the door was closed. When she was released by the father she stayed awake in her bedroom until the morning when she took the child to her parents’ home whilst the father was asleep in the lounge room.
Over the following months the mother lived with her parents and in a women’s refuge.
Approximately one week after the second incident, the father sent the mother threatening text messages telling her that he was “going to end it”. The mother’s brother sent the father a text message in response, which read “do it”. The father then attended the home of the maternal grandparents where he was confronted by the mother’s brother and the maternal grandfather in the front yard of the home. A physical fight erupted between the father and the mother’s brother which resulted in the father being punched in the centre of his face. From a window in the house, the mother observed the father attempt to drive his vehicle into her brother on the front lawn of the house whilst the maternal grandfather attempted to prevent him from doing so.
As a result of this incident the mother obtained an intervention order restraining the father from contacting her or coming within 200 metres of her address. However, the police were unsuccessful in locating the father to serve him with the intervention order and the father continued to send text messages to the mother indicating that he was watching the police and taunting the mother about the inability of the police to locate him.
Over the following 13 days the father continued to telephone the mother and send her text messages containing numerous threats. These messages indicated that the father had precise details of the mother’s whereabouts and regularly told her to “look over [her] shoulder” because he was always there. The father also sent threatening messages to the maternal grandmother.
On 27 August 2008, following a text message from the father to the maternal grandmother, the police attended the house of the maternal grandmother. Shortly after they left, the father sent another message demonstrating that he was aware of the police attendance and taunting the maternal grandmother. A short time later, the father attended the home of the maternal grandparents, where the mother and child were residing. Upon his arrival, the father threw a Molotov cocktail into the backyard and another through the window. He then threw a Molotov cocktail at the lounge room window where the mother was standing with the child just behind her. This broke the window causing a fire to start inside the lounge room; the curtains and the carpet were on fire. Wooden venetian blinds on the windows served to prevent serious injury to the mother and child. The maternal grandmother and the mother’s sister-in-law took the child and family dog to the back of the house, whilst the mother attempted to put out the fire. The father then threw a second Molotov cocktail at the closed front door and as the mother opened the front door, a further Molotov cocktail hit the wall next to the maternal grandmother’s bedroom. All of the occupants then ran from the house into the back yard and telephoned the police as neighbours came to their assistance.
The father left before any emergency services arrived but later called the mother saying, “You are all fucken dead”. The father was arrested after surrendering that night and was remanded in custody until 20 October 2008 when he was released on bail.
After being released on bail, the father recommenced stalking the mother and on one occasion called her more than 20 times in one hour making threats which included “you can’t hide for ever” and “the police better get me before I get you”. The father hid in the stairwell of the mother’s building and followed her and on one occasion tried to drag her inside the apartment by her hair.
Although she had the assistance of the police, the mother lived in constant fear and was forced to spend periods of time in hiding.
On another occasion, the mother returned to her flat whilst she was living in the women’s refuge and found that the front door had been forced open and her property ransacked. Her personal belongings and papers were thrown around and her clothes, curtains and couch had been slashed. The child’s bedroom furniture was broken and, whilst the police were investigating, the father went to the property and caused further damage to the property. During this time, the father also killed the mother’s cat by strangling it with a telephone lead.
The father was ultimately arrested by police after they found him under a bed sheet on the couch. In his possession was a backpack which included nine cable ties, gaffer tape and two plastic raincoats. The father was subsequently found to be in possession of a flick knife which he used to stab himself whilst he was being transferred in a divisional van by the police.
On 20 October 2009 the father was sentenced to a total effective sentence of nine years and nine months’ imprisonment with a non-parole period of six years and nine months’ imprisonment. On appeal this was reduced to eight years and four months’ imprisonment with a non-parole period of five years and nine months.
Appeal Justice Ashley in his reasons for sentence found that the father was diagnosed as having a clinically significant personality disorder with borderline personality features and any major mental illness was ruled out. Any psychotic illness at the time of the events was specifically excluded.
On 6 June 2014 the father was denied parole and is due for release on 6 January 2017 unless paroled earlier.
The mother deposed that the child has not seen the father since he was one year of age and has no relationship with him. She deposed that the child suffered sleep problems and nightmares as a result of the incidents but did not really understand what was happening.
The mother deposed that she is not presently in a de facto relationship but that she had another child on 6 August 2013. She continues to be in fear of the father and is extremely concerned that when he is released from prison, she or the child will be in danger of being seriously injured or killed. The mother also holds fears for the safety of other members of her family including her second child.
Counsel for the mother relied upon Exhibit A which was a police statement by a Senior Constable of Police, which details his involvement with the parties over a number of the incidents described above. Counsel for the mother drew particular attention to page 65 of this statement, wherein the Senior Constable chronicles a number of threats the father made against the mother after he had been arrested by the police and been attended to by staff at the Royal Melbourne Hospital for his self inflicted injuries. Whilst at the hospital the father told the police that he would kill the mother and then kill himself. This was said in the context of the father’s claim that the mother had taken everything away from him. When the Senior Constable said:
Come on mate, sure you have more things to look forward to in your life. What about your son?
the father responded:
Well that slut won’t let me see him. I’ll finish what I started. She won’t be breathing for long.
Legal Principles
In deciding to make any parenting order, the child’s best interests must be the paramount consideration under s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in ss 60CC(2) and 60CC(3) of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
The primary considerations
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 primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[2]
[2] Family Law Act 1975 (Cth) s 60CC(2A).
Meaningful relationship with both parents
A meaningful relationship between the child and the father does not appear to be possible at this time. This is due not only to the fact that there is no current relationship between them (at least according to the uncontested evidence of the mother), but also to the fact that the sentencing remarks of Judge Hampel following the father’s criminal trial indicate the father’s high risk of recidivism and relatively poor prognosis for the future. In light of this, absent any evidence that the father has engaged in any of the psychological and psychiatric assistance and treatment for his drug addictions that was contemplated in Judge Hampel’s remarks, there is nothing to indicate that the child would benefit from having a relationship with his father.
Abuse and family violence[3]
[3] In proceedings such as these initiated after 7 June 2012.
The term “abuse” in relation to a child is defined in s 4 of the Act as:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
“Neglect” is not defined in the Act.
“Family violence” is defined as:
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.[4]
[4] Family Law Act 1975 (Cth) s 4AB(1).
The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[5] Some examples of situations that may constitute a child being exposed to family violence include:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
[5] Family Law Act 1975 (Cth) s 4AB(3).
In this case the primary considerations loom large. Whilst I am required to consider the benefit to the child of having a meaningful relationship with the father, in a case where there has been serious violence perpetrated by the father against the mother, child and other family members and, in particular, where the father set fire to the house in which the child and mother were living whilst they were inside, the emphasis must be upon the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am required to give greater weight to this consideration and the circumstances here demand that the balance shift in favour of those factors.
This child does not have a relationship with the father and I am satisfied that it is in the best interests of the child that he be protected from the father, who has clearly demonstrated his propensity for serious violence. Appeal Justice Ashley,[6] referring to the facts of the case on appeal, stated that the appellant was 24 when he offended and 25 at the time of sentence. He noted that the father had no prior convictions but that some of the offending occurred whilst the father was on bail after the first series of offences. He referred to the following comments made by the trial Judge about the father:
[25] Both [Drs G and H] diagnose you as having a clinically significant personality disorder, with borderline personality features. [Dr I] ruled out any major mental illness as does [Dr H]. Specifically [Dr H] excludes any psychotic illness at any time related to the offences or generally. [Dr H] also noted that you do not suffer any cognitive impairment. You reported both to [Dr G] and to [Dr H] a long history of troubled behaviour. Problems with anger or inability to control anger first manifested themselves when you were in primary school and to such an extent at that stage that it was thought necessary to attempt some interventions. Your problems with anger have continued since then and they have affected your interpersonal relationships as well as your education and employment history.
[26] That has been compounded by your substance abuse, starting with cannabis at the age of 13 and regular abuse of amphetamines since the age of 18. All of those added to or compounded the problems caused by the underlying significant personality disorder. …
[6] Affidavit of the mother sworn 2 February 2015 – Annexure LF-03 (Mailer v R [2011] VSCA 136).
The trial judge, Judge Hampel went on to describe the father as having a documented history of self-harm directly related to situational events and mentioned that Dr G pointed out that the father is at risk of self-harm into the future. The trial judge noted that Dr G expressed the opinion that the father required several years of intensive psychological and psychiatric assistance to assist him with his personality difficulties and his substance addiction. However, shortly after that report was prepared, when the father was released on bail he returned to abusing substances and committed further offences.
The trial judge also recorded that Dr H expressed concerns about the father’s lack of insight and was guarded about the father’s future prospects of remaining offence free. The trial judge’s conclusion, which was not criticised on appeal, was that the father’s offending was serious in terms of the individual incidents but was made even more serious by the persistent escalation and his “frighteningly dangerous” conduct, which “involved repeated and flagrant breaches of the Intervention Order which had been made after the first two weeks of the offending behaviour”. The trial judge referred to the fact that the last two episodes had occurred after the father had been arrested and charged with the first three offences, which were, by themselves, very serious and could have caused real harm or death to people. She also emphasised that the father had spent 44 days in custody before being released on bail and that he reoffended within 10 days of his release.
The trial judge referred to the fact that there were four separate episodes of offending by the father and that the first two occurred over a three week period. The reoffending commenced a “very, very short time after the lengthy remand in custody” and the last two episodes were committed over a three day period.
As the trial judge pointed out, the threats and violence exhibited by the father could have had a significant harmful effect on the child and any desire to have contact with a child cannot justify threats and harm to the child’s other parent.
Having regard to the serious circumstances of the offending, the escalation in offending, offending on bail and the breaches of intervention orders, together with the guarded prognosis for the father’s personality disorder and chronic substance abuse, and an absence of evidence of any treatment undertaken by the father, I consider that it is not in the best interests of the child to have a relationship with the father. This is particularly so where the offending has been directed towards the mother and child in such serious circumstances.
Unacceptable risk
As to whether there is a need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect of family violence, I am satisfied that there is such a need. This is based on the father’s history of violence towards the mother and, incidentally, the child (as described elsewhere in this judgment). The father has decided not to participate in proceedings and thus has provided no evidence as to his having made any changes that would diminish my concerns about his behaviour into the future.
The Additional Considerations
The additional considerations are listed at s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.
Section 60CC(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
I have no evidence of the views of the child other than the evidence of the mother who has deposed that the child is aware that his father is imprisoned and that this is a result of him having hurt her. She has deposed that the child no longer has any direct memory of the incidents or of the father. Any views of the child in these circumstances would not be of any significant weight having regard to the seriousness of the offending.
Section 60CC(3)(b): the nature of the child’s relationships with each of the parents and other persons
In this case the child has lived with the mother since birth and had no contact with the father from the age of one. The father has not demonstrated that he has any capacity to responsibly parent the child. There is no evidence of the child’s relationships with other persons, such as grandparents.
Section 60CC(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
The mother has been the child’s primary carer since he was born. There is no evidence contradicting the mother’s claim that during the parents’ relationship, the father was rarely home and provided the mother with only limited support in caring for the child.
As was stated in Judge Hampel’s sentencing remarks following the father’s criminal trial, the tensions between the parents first arose over contact with the child and the father “felt aggrieved about the situation”. The father’s violent conduct towards the mother and child was associated with post separation issues which demonstrated that he cannot approach decision making in relation to the child, and time/communication with the child, in a reasonable way.
The father has not provided any evidence of his current attitudes in relation to such matters and accordingly I have no evidence other than his past actions to take into account.
Section 60CC(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
There is no evidence as to whether the father has ever financially supported the child.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from either of his parents or any other person with whom the child has been living
There is no application before the Court that would tangibly change the child’s circumstances, aside from the application to change the child’s surname, which is dealt with further below.
Section 60CC(3)(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
There is no application by the father to spend time or communicate with the child.
Section 60CC(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
There is no evidence that the mother does anything other than fully fulfil the child’s needs. Again, the father makes no application for time and thus it is not necessary to consider his capacity to provide for the child’s needs. If this were necessary, on the evidence before me it would be impossible to make findings favourable to the father, as his actions in the past have, at best, disregarded the needs of the child.
Section 60CC(3)(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
There is no evidence, beyond that discussed elsewhere in this judgment, about these factors in relation to the child or either of the parties.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture and the likely impact that any proposed parenting order made under Pt VII of the Act will have on that right
There is no evidence to suggest that the child or either parent is of Aboriginal or Torres Strait Islander descent.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father’s criminal convictions involved violence towards the mother whilst the child was in her care without regard on his part for the child’s wellbeing. As Judge Hampel said in her sentencing remarks after the father’s conviction:
It is harmful to children if they experience violence or threats between their conflicting parents. The threats and violence exhibited by [the father] could have had a significant harmful effect on that child. So, it seems to me that there must be an understanding that a love for a child or a desire to have contact with a child cannot justify threats and harm to the child’s other parent. That is deleterious to the child.
It has been a number of years since the father’s offending led to his incarceration. There is no evidence about any attempts by the father in the intervening period to contact the child and it is impossible to know the reason behind this decision because he has not responded to the mother’s application. It is also impossible to know, without any evidence from the father, what his attitude to parenthood is at this time, whether he acknowledges the mistakes in his past and has taken steps to rectify his behaviour.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
This is a case where there are not simply allegations made by the mother. The father has been convicted in a criminal trial and sentenced to a lengthy term of imprisonment which although reduced on appeal involved a total effective sentence of eight years and four months’ imprisonment. The father was convicted and is serving a sentence for crimes of serious family violence directed towards the mother. The father’s targeting of the mother was in complete disregard for the safety and well-being of the child.
Section 60CC(3)(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 nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; and any other relevant matter
The mother deposes[7] that on 14 August 2008 she obtained an intervention order against the father, preventing him from contacting her or coming within 200 metres of where she lived. It is unclear on the evidence whether that order is still in force and no further evidence about this was provided. Ultimately, after making enquiries of the mother, counsel for the mother did not press the mother’s application in this Court for a restraining order upon the father approaching or contacting the child. The circumstances leading to the mother’s application for this intervention order have been previously outlined. The father did not heed that intervention order and was ultimately convicted of multiple breaches of the order which indicates a complete disregard for the law.
Section 60CC(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
[7] Affidavit of the mother sworn 2 February 2015 at [28].
Since the father has not sought to be heard in these proceedings, his views cannot be taken into account. Whilst parenting orders would of course ideally always minimise the prospect of future litigation, this cannot be guaranteed, particularly when one of the parties to proceedings has elected not to participate and is serving a term of imprisonment.
However it is clearly in the best interests of the child for the mother to be at liberty to make decisions about the child without having to consult her abuser and to have orders made which remove the need for contact with the father in circumstances where he has stalked the mother, threatened to kill her, continued to offend whilst on bail and breached intervention orders.
I accept that the order sought by the mother is the order which would be least likely to lead to the institution of further proceedings.
Parental Responsibility
Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the child that the parties have equal shared parental responsibility. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
I am satisfied that the presumption of equal shared parental responsibility is rebutted in this case because the father has been convicted and sentenced to a lengthy term of imprisonment for serious violence involving life threatening conduct towards the mother and child having being convicted of intentionally damaging premises by fire with intent to endanger life. His conduct was in breach of an intervention order and some of the offending occurred whilst he was on bail which demonstrates little regard for the law let alone the welfare of his child. The father continued to make threats of violence after he was arrested and treated in the hospital. There are clearly reasonable grounds for a finding that he engaged in family violence.
I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the child’s best interests, and reasonably practicable, that the child spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.
Change of Surname
As indicated above, the mother seeks authority to change the child’s surname without notice to or permission of the father. The authorities on the issue make it clear that decisions about the name by which a child is to be known are determined by the best interests of the child.[8] The Court’s role is to weigh any factors for and against the change.[9] As Finn J stated in Flanagan & Hancock (2001) FLC 93-074 at [35], each case of this kind turns on its individual facts.
[8] George & Radford (1976) FLC 90-060; Chapman & Palmer (1978) FLC 90-510; Beach & Stemmler (1979) FLC 90-692; Kelley & Kelley (1981) FLC 91-002; Skrabl & Leech (1989) FLC 92-016; Mahoney & McKenzie (1993) FLC 92-408; Flanagan & Hancock (2001) FLC 93-074; Raymond & Harold [2009] FamCA 155; Jordan & Lloyd and Ors [2010] FamCA 288.
[9] Chapman & Palmer (1978) FLC 90-510.
In this case, the mother is extremely fearful of the father because of his violent and abusive behaviour towards herself and the child. He has made many threats to kill the mother and her family and has a history of self-harm. On the occasion that the father attended at the maternal grandparents’ home and proceeded to set it alight by throwing Molotov cocktails, he had left a suicide note at the home of the paternal grandparents. On another occasion he stabbed himself with a flick knife after he was arrested. He strangled the mother’s cat with a telephone wire, destroyed her property and was eventually found hiding in the mother’s house in possession of cable ties, gaffer tape and plastic raincoats.
The father showed no regard for intervention orders taken out against him. He also committed further offences against the mother whilst on bail awaiting trial in relation to the earlier charges.
The father has no relationship with the child and has not seen him since the child was one year old.
As Bell J wrote in a not dissimilar case:[10]
I find that in the circumstances, such change of name will have little effect on the relationship between the [child] and the father, in light of the current status of that relationship … Such change will have both the short and long term effects of not only allaying the mother’s fears that the father may be able to easily find her, but also any similar fears of the [child] as it is without doubt that children are very perceptive of the behaviour of their parents.
[10] Peters & Richards (No 4) [2013] FamCA 930 at [96].
Conclusion
I am satisfied having regard to the seriousness of the circumstances of the father’s offending, his diagnosed personality disorder, substance abuse and his tendency to self-harm that it is in the best interest of the child to have no contact with the father. I do not consider that it is in the best interests of the child for the father to be provided with information about the child, taking into account the guarded prognosis for the father. The seriousness of the offending warrants protection for the child by a change of surname and location without notice to the father.
The mother is entitled to live without the fear of retribution from the father, which in the past has taken the form of placing the mother and child in danger. The protection of the mother as the primary carer of the child and her peace of mind is in the best interests of the child.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 May 2015.
Associate:
Date:15 May 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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