Gallerado and Brettingham

[2013] FamCA 908

FAMILY COURT OF AUSTRALIA

GALLERADO & BRETTINGHAM [2013] FamCA 908

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – order that child live with the mother – order that mother have sole parental responsibility for the child – order that child spend no time with the father – order that father not communicate with the child – injunctive orders

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC(1),(2),(2A),(3)

APPLICANT: Ms Gallerado

RESPONDENT:	Mr Brettingham
INDEPENDENT CHILDREN’S LAWYER:	Mr Welsh

FILE NUMBER: LNC 192 of 2013

DATE DELIVERED: 12 September 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 12 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hunt

SOLICITOR FOR THE APPLICANT: Legal Aid Commission of Tasmania

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Wel

No Appearance

Mr Welch

SOLICIOR FOR THE INDEPENDENT	Philip Welch Barrister and
CHILDREN’S LAWYER	Solicitor

Orders

1. Ms Gallerado (“the mother”) shall have sole parental responsibility for B born … 2010 (“the child”) including but not limited to:

   (a)relocating the primary residence of the child within the Commonwealth of Australia;

   (b)changing the child’s name;

   (c)solely applying for a passport in the child’s name; and

   (d)permitting the child to travel outside of the Commonwealth of Australia.

2. The child live with the mother.

3. The child spend no time and have no communication with her father, Mr Brettingham (“the father”).

4. Pursuant to s68B of the Family Law Act the father is and is hereby restrained from:-

   (a)approaching the mother and/or the child either directly or indirectly including by telephone, email, facsimile, letter, SMS text message or in any other way apart from by letter to the mother’s solicitor.

   (b)entering or remaining upon C Street, Perth in Tasmania or any other place where the mother and/or the child may be staying or living from time to time, any place of employment of the mother and any place of education that the child may attend from time to time.

5. The mother will continue to accept guidance and direction from the psychologist and staff at D House.

6. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

7. The Magellan report and the letter from the wife’s solicitors dated 14 August 2013 remain on the court file.

8. All other subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.

9. The Independent Children’s Lawyer shall forward to the father, by ordinary pre-paid post, within seven (7) days from the date of these orders, a sealed copy of these orders and inform the father that if he wishes to apply in respect of these orders he should do so within a further period of twenty eight (28) days.

   IT IS FURTHER ORDERED

10. Leave be given for the father to apply, within the period of thirty five (35) days of the date of these orders in respect of these orders, after the period of thirty five (35) days has elapsed, the appointment of the Independent Children’s Lawyer be discharged.

11. This matter be removed from the list of cases requiring determination.

    IT IS FURTHER DIRECTED

12. The Independent Children’s Lawyer shall within twenty one (21) days from the date of this order forward a copy of the mother’s trial affidavit and these orders to the Tasmanian State Child Protection Authorities.

13. A copy of the reasons for these orders be taken out and placed on the Court file.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallerado & Brettingham 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 HOBART

FILE NUMBER: LNC 192 of 2013

Ms Gallerado

Applicant

And

Mr Brettingham

Respondent

REASONS FOR JUDGMENT

1. These are proceedings which were commenced by the mother in April of this year by way of an application supported by a detailed affidavit.  The proceedings relate to the parenting arrangements for B (‘the child’), who was born in 2010, and is now aged just over three.

2. The respondent to the proceedings is Mr Brettingham, who is the child’s father.  The issues in this matter arise out of allegations of serious, emotional, psychological and sexual violence allegedly perpetrated by the father against both the mother and the child.

3. It is apposite to reflect upon the background to the proceedings to start with.  As I said, they were commenced in April 2013 and tendered for the purpose of the hearing was an affidavit of service sworn by Mr E on 2 May 2013 who deposes that he served a copy of the initiating application and affidavit of the mother on the father on 29 May 2013.

4. The proceedings came before a registrar of this Court on that day who allocated the matter to the Magellan list.  An Independent Children's Lawyer had been appointed and the father attended in person on that day.

5. The Registrar gave leave for the issue of subpoenas and made directions that the father file and serve a response and a notice of address for service by 24 June 2013.

6. The matter came back before the Registrar on 26 June 2013 in accordance with the directions given to the parties in May 2013.  There was no appearance by the father at that time.

7. Accordingly, the proceedings were adjourned to 30 July 2013 at which time they were referred for a possible undefended hearing before me on today’s date.

8. A letter was tendered by the solicitor for the mother which was sent to the father’s address indicating that the proceedings had been listed for a possible undefended hearing before me today.  That document is Exhibit 1 and will be retained on the Court file.

9. There is no appearance by the father, either at this Court at Hobart, nor was there an appearance by him by telephone.

10. I am satisfied, in all of the circumstances that the proceedings should continue by way of an undefended hearing today although, I will give the father a further period of 28 days to apply in respect of the final orders I intend to make today.

11. The material before the Court, apart from that to which I have already alluded, was the Magellan report, received on 15 May 2013, the affidavit of the mother sworn 11 April 2013 and filed 15 April 2013, and the initiating application of 15 April 2013.

12. The mother is very young, having been born in 1991 and she is now aged 22.  The father is currently aged 29.

13. The parties met as friends when the mother was aged about 14 and it appears that they commenced living together on the day of the mother’s fifteenth birthday, which was in January 2006.

14. The parties had a separation in 2008 for a period of eight months and a Police Family Violence order was issued to protect the mother from the father during that time.  The party’s final separation was on 15 January 2012.

15. The child was born in 2010.  The mother has now re-partnered with Mr F.  The mother and Mr F have last month celebrated the birth of their son H, who is now not even a month old at this stage.

16. There is in place a Family Violence Order which was made on 6 March 2013.  The mother sets out most of this general history in her initiating application.  In her affidavit the mother describes the relationship between her and the father and in that affidavit deposes that the primary care of the child was undertaken by her, both before and after separation.

17. The mother asserted significant and profound violence against her and against the child.  I do not intend, in these Reasons, to set out full details or details of those allegations except to say that they were violent, abusive and of a nature which is such that the child and the mother would be at significant risk of harm, in the company of the father, including emotional, psychological and physical.

18. The mother’s assertions as to the father’s sexual behaviour to the child is such that, putting all of the fact asserted by the mother together, it would be inappropriate for the father of have any contact or communication with the child.

19. The father had full details of those allegations when he was served with them in May of this year.  He has chosen not to comply with the directions of the Registrar and not to participate in these proceedings.  He has left the assertions of fact by the mother unchallenged and as such I will act upon those assertions of fact.

20. Those facts are, to one degree or another, supported by police action and the statements which the mother provided to the police.  When this matter first came before the Court it was, quite properly, dealt with as a Magellan matter and a report was prepared by the relevant Tasmanian State Welfare Authorities.  That Report was tendered by the Independent Children's Lawyer.  I have had regard to the material set out in that Report.

21. The only matter to which the Independent Children's Lawyer was primarily concerned was contained on page 3 of that Report in respect of the mother attending D House.

22. The mother is content for an order that she continue to be advised by D House but that does not necessarily mean ongoing counselling if that is outside the scope of that advice.  I am content to adopt that course.

23. This is a matter to which the 2012 amendments to the Family Law Act 1975 (Cth) (‘the Act’) apply.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. I repeat the comments I made in Sheffield and Oakes [2013] FamCA 183 where I said:-

   38.Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.

   39.Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.

   40.In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.

   41.In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-

   87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:

   (i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)

   (ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))

   (iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).

   (iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).

   (v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).

   (vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.

   (vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:

   i.    Whether an order for equal time is in The child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,

   ii.     Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.

   (viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.

   (ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and The child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

   42.I have considered and adopt the pathway suggested by Kent J.

   43.The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)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

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   44.When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.

   45.There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.  

   46.If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

SECTION 60CC FACTORS

1. In terms of s 60CC(2A) the primary considerations, I will deal with those in turn. There is no doubt a benefit in the child continuing to have a meaningful relationship with her mother. The mother has been the primary and in fact essentially the sole parent of this child for all of her life.

2. Having regard to the allegations of the father’s behaviour to both the mother and the child, I see no benefit to the child in having a relationship with the father.

3. I am also conscious of s 60CC(2A) having regard to the need to give greater weight to the factors under s 60CC(2)(b) in terms of this determination.

4. In the circumstances of the facts that are uncontested before me, I did not need to have regard to that provision; however, I did have regard to it.

5. There is a need to protect the child from physical, psychological harm or being subjected or exposed to abuse, neglect or family violence.  Suffice to say that the child was subjected and at risk of abuse from her father in every sense of those words and I adopt and accept the unchallenged evidence of the mother in terms of the events to which she and the child endured over the period of the relationship and subsequent to it.

6. As to the other factors the child is too young to express any views to be of any material benefit to this Court although it is noted that the child expressed to the mother the fear of a man in her nightmares. 

1. As to the nature of the relationship of the child with the mother; the mother cares for the child and is the primary carer as I have said earlier.  The father had a relationship with the child but it was a dysfunctional relationship which in the circumstances provided to me ought not to continue.

2. The mother has taken steps to participate in the care of the child.  The father has done so but only in a negative sense.  The father does not spend and ought not to spend time or communicate with the child bearing in mind the status of the evidence.  The mother has fulfilled her obligations to maintain the child.  The father has not.  The circumstances of the child are such that she does not have any contact or communication with the father and there is likely to be no such change to those arrangements into the future.

3. There is no evidence of any practical difficulty or expense of the child spending time with the father although; it would invariably have a profound impact upon the mother given the history which she has provided. 

4. As to the capacity of each of the parents there is no issue as to the mother’s capacity to care for the child however, there are significant and profound issues as to the father’s ability to do so.  The mother has displayed a responsible and child focused attitude to parenthood.  The father has not.

5. There are significant issues to family violence and family violence order to which I have alluded to earlier in these Reasons and I do not need to repeat them at this stage.  Having regard to all of the evidence before me it would be inappropriate for there to be an order other than one that the mother has sole parental responsibility for the child.  This will also include, in my view, the broader parental responsibility including changing the child’s surname, changing the child’s residence and to enable the mother, should she choose to, to apply for the issue of a passport to enable the child to travel overseas should the child wish to at some stage in the future.

6. In terms of residence the only viable option for residence on the material before me is that of the mother.  The father is not a candidate for residence of the child and in the circumstances provided in this case I would not make such an order.  Accordingly, this is a matter where an order will be made that the child resides with the mother.  As to the child spending time or communicating with the father it is of course the case that family courts generally encourage children to have relationships with their biological family.  In this case the violence, abuse and behaviour of the father are such that this would predicate against any time or any communication between the child and the father.

7. There is an application before me to issue an injunction restraining the father from approaching the child or the mother.  That is contained in order 4 and 5.  Having regard to the matters to which I have referred to in these Reasons including the stalking, threats and other matters to which have been inflicted upon the mother and child.  It is necessary in my view for those injunctions to be put in place and I propose to make those orders.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 September 2013.

Associate:     

Date:              12 September 2013