Gallington & Waite
[2023] FedCFamC1F 434
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gallington & Waite [2023] FedCFamC1F 434
File number(s): BRC 5506 of 2021 Judgment of: HOWARD J Date of judgment: 6 February 2023 Catchwords: FAMILY LAW – PARENTING – Undefended Hearing – Where the applicant mother failed to attend –Where the mother was convicted of criminal charges relating to domestic violence offences – Where it is alleged that the mother sexually abused the child – Where it is neither necessary nor desirable in the circumstances of this case to make findings concerning the allegations of sexual abuse – Where the 15 year old boy expressed a strong wish to live with his father and not spend time with his mother – Where it is in the child’s best interests to live with the father – Sole parental responsibility to the father. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 10.13(1)(a)
Cases cited: Cox v Pedrana (2013) FLC 93-537
Eagle & Scarlett (No 2) [2020] FamCAFC 291
M v M (1988) 166 CLR 69
Whisprun Pty Ltd v Dickson (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 6 February 2023 Place: Brisbane Applicant: Litigant in person (did not participate) Solicitor for the Respondent: JMR Lawyers and Mediators Solicitor for the Independent Children’s Lawyer: Jenny Boulton Solicitor ORDERS
BRC 5506 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GALLINGTON
Applicant
AND: MS WAITE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
6 FEBRUARY 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That the child X (‘the child’) born 2008 live with the father.
2.That the father have sole parental responsibility in respect of the child.
3.That in the event that the father and the mother agree in writing for the child to spend time with the mother, such time as agreed is to be supervised at a contact centre on two (2) occasions.
4.That if the child has spent the supervised time with the mother on two (2) occasions pursuant to paragraph 3 herein, the child will spend further time with the mother only in in accordance with the child’s wishes.
5.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that the Court may at any time vary or set aside an order if it was made in the absence of a party.
B.
That given this matter was heard on an undefended basis it is noted to the extent necessary that any subsequent parenting application by the mother is not barred by the principles in Rice and Asplund [1978] FamCA 84.C.This Order has been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Gallington & Waite has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 6 February 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting case. The applicant in these proceedings is the mother Ms Waite. The respondent is the father Mr Gallington. They are the parents of X who was born in 2008. I note that the father was born in 1973, and the mother was born in 1990, and the parents commenced a relationship in 2006. The parties lived together and ultimately separated in 2014. In 2014, there was a domestic violence incident where the mother caused serious damage to the father’s property. The mother was arrested, charged, convicted and sentenced to a term of imprisonment. The child X has lived with the father ever since. The child has not seen the mother since 2014, so he was only six years old the last time he saw his mother. He is now 15 years old.
In terms of a parenting order, the Court notes Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the various relevant provisions contained therein. By s 60CA of the Act – in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Before I proceed to the best interests of the child, I would note the following. The mother commenced these proceedings originally in April 2021. In June 2021, the mother filed an amended initiating application. The first appearance before me was a Case Management Hearing on 12 December 2022.
On that occasion, Ms Randell, solicitor, appeared on behalf of the father. Ms Boulton, the Independent Children's Lawyer (“ICL”) appeared, but there was no appearance by, or on behalf of, the applicant mother. The matter was then adjourned for a further case management hearing on 10 February 2023 with an order that, in the event the mother failed to appear on that occasion, the Court would consider proceeding with the matter as an undefended hearing. A copy of the order was sent by way of email to all the parties, and in addition, another copy was sent by post to an address which is B Street, C Town, Queensland.
Because of listing requirements in the Court, the matter had to be brought forward from 10 February 2023 to today, 6 February 2023, and the 10 February date was vacated. The parties were ordered to be here in attendance today. Again, Ms Randell has appeared for the father. The ICL Ms Boulton is here, but there is no appearance by the mother. The mother previously had the benefit of legal representation. Originally, D Lawyers appeared on behalf of the mother. Subsequently, another firm of lawyers was appearing for the mother, namely, E Lawyers, but that firm filed a notice of ceasing to act on 15 September 2022. At that stage, E Lawyers advised the Court of the mother’s contact email address, being …@....
The Court orders to which I have referred, namely, the order of 12 December 2022, was sent to that email address as well as being mailed to the address in C Town. Previous orders were also sent to that email address. The order of the Court on 25 January changing the date to today’s date was also emailed to the email address. I note it was not actually mailed to the C Town address, but there was no requirement that it be so. I will include here as Exhibit 1 the Notice of Ceasing to Act that was filed by E Lawyers and which included the mother’s email address in it. I will include here also as an exhibit a copy of the email sent by the Court to all the parties via email, including the email of the mother, on 25 January 2023 changing the date to today’s date. That email also enclosed a copy of the order made, so the exhibit will also include the order.
I will make another exhibit out of the earlier order just for the sake of convenience – being the 12 December 2022 order. I will make that Exhibit 2 and the 25 January 2023 order Exhibit 3. I am also going to include as Exhibit 4 an email sent by the mother to the lawyer for the father. Ms Randell has handed a copy to the Court and it will be marked Exhibit 4. It shows that as recently as last Thursday, 2 February 2023, the mother was using that email address –…@... – to correspond with the father. I am therefore satisfied that the mother has notice of this hearing today. The mother ought to be here. The mother is not here. It is appropriate then for the Court to proceed on an undefended basis.
In proceeding on an undefended basis, I would normally hear submissions from the parties. I have heard brief submissions from the lawyer for the father, and I know the orders sought and the reasons why. I have heard very brief submissions from the ICL, but I understand the orders sought, and if necessary, I will hear further. If the mother were present, I would hear submissions from her, but she is not. I consider it is demonstrably clear on the face of the 12 December 2022 order that if the mother did not appear today at this particular hearing, then the Court would consider proceeding on an undefended basis. Noting the history and noting that the child hasn’t seen the mother for some years, it seems to me that the Court would need to be very cautious in relation to the making of any parenting orders where the child spent time with the mother. I note s 60CC(2)(b) – the need to protect children. I note that the child had made disclosures that he had been sexually interfered with by the mother. He made those allegations as early as 2014, perhaps even earlier, but that was the date that I noted in the evidence. That is the boy’s memory as well, because that is what he told Ms F, who provided a Child Impact Report dated 21 March 2022 when the matter was then before Her Honour Judge Purdon-Sully.
That Child Impact Report will be admitted and marked as Exhibit 5. The child made it clear that he is scared of the mother. The child made it clear that he did not have positive memories of his mother. The child remembers seeing the mother seriously damage the father’s property. The child has expressed a wish to Ms F not to spend any time with the mother. There has, of course, not been any particular findings made in relation to the allegations that the mother sexually abused the child, but the child’s memory is that it did occur. He is now 15, and he has told the family consultant, at least a year ago when he was 14, that he did not want to see the mother. There is no evidence that his views have changed.
Noting the risk issues highlighted in this report, noting the child’s stated wishes, it seems to me to be demonstrably in the child’s best interests that he remains living with the father. As to the time with the mother, I will come to that shortly, but I note in particular the following paragraphs from Ms F’s report:
“12. The parents in this matter separated almost 8 years ago. Therefore, although the parents have raised what would be assessed as high risk indicators of family violence, [X] is not currently exposed to any parental conflict. The father appears to have had significant mental health episodes, whereby he has been admitted to Hospital on four occasions. The father stated that his last Hospital admission was over five years ago. According to the father, his mental health is stable now. The father stated that he has now been diagnosed with [a mental illness] and his previous diagnosis of [another mental illness] was incorrect. The father stated that [X] has not been negatively impacted by his mental health issues or Hospital admissions. He advised that [X] stays with his grandfather whenever the father is in Hospital. [X] stated that he has a good relationship with his paternal grandfather. [X] told me that his favourite thing to do is visit and spend time with his grandfather.
13. [X] does not have positive memories of his mother. He told me that his mother "molested me", that she has addiction issues and he remembers her [seriously damaging his father’s property]. [X] did not want to discuss how his mother, 'molested' him, but he did say that he would be happy to speak to a counsellor regarding this. He told me that his father told him about his mother's drug misuse. [X] also stated that he remembers that his mother stole toys from a shop when he was with her.
14. [X] stated that he is fearful that his mother will try and take him away from his father and "hurt me. " [X] said that he cannot remember his mother hurting him before, but he said that his mother took him to the maternal grandfather's home when he was younger and his grandfather "pulled me by my hair. " [X] cannot not remember how old he was at the time. [X] also told me that his mother might want his 'pity" if she has changed her lifestyle for the better, but he stated "I don't want to know. "
15. The mother told me that she recently attempted to contact [X] via social media, but he 'blocked' her. [X] told me that he has never heard from his mother and if she did attempt to contact him, it must have been another person's social media account she tried.
16. [X] described a positive relationship with his father. He stated that his father listens to him and understands his needs.”
I accept this evidence from Ms F and the following evidence:
“25. [X] is a vulnerable child due to his additional needs, as well as his adverse childhood experiences. Therefore, it is important that [X] continues to attend appointments with his specialists to provide a safe and secure environment for [X] to explore his feelings and overall safety needs.
26. The allegations of risk in this matter, particularly the allegations of sexual abuse are concerning. However, if these allegations are true, the best way to support [X] is to provide a safe therapeutic counselling space for him. The Court might be aware of the previous proceedings and outcomes in respect of the father's daughter. If there are concerns in respect of these proceedings, then it might be appropriate to request the intervention of Child Protection Services to assist in this matter.
27. [X] has clearly expressed his views about his parents. I would recommend that the Court respect [X’s] views and wishes of spending no time with his mother. If at any time, [X] shows an interest in making contact with his mother or shows a desire to find out about his half-siblings and extended maternal family, then I would suggest that [X] is provided with therapeutic support to explore this.
28. If at any stage, [X] wants to pursue a relationship with his mother, then again, I would suggest that this is done with the intervention and support of therapeutic counselling. Given [X’s] expressed views to me, I would say that it is important that the mother does not attempt to make contact with [X], and thus allows him the opportunity to reach out to her if he chooses to do so.”
I have noted the various developmental issues in relation to X. To say the least, Ms F is correct when she said that X is a vulnerable child due to his additional needs but also because of adverse childhood experiences.
To the extent any allegations were made by the mother against the father, the mother is not here to be heard, and there is no finding made concerning any such allegations. The child has a positive relationship with his father. I am not sure why the mother would have attended in March 2022 for the Child Impact Report but then not show up at the court appearances in December 2022, nor now in February 2023. In any event, I have noted the various other allegations of risk, not only so far as the mother is concerned but also the maternal grandfather.
I have also noted the child’s threat to harm himself once the mother commenced proceedings. I have had regard, not only to s 60CC(2) and s 60CC(2A), but also the additional considerations in s 60CC(3). I am not required to refer to each subparagraph. I have taken them into account: note Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 at [62]; Cox v Pedrana (2013) FLC 93-537 at [29]-[31]; Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103]. I have referred to subparagraph (a) and (b) and (c). The boy makes it clear that the mother failed for years and years to make any contact. She has not taken opportunities to pursue a relationship with him until filing these proceedings in 2021.
In any event, the risk factors are such that I agree with the submission made by the ICL, and supported by the father, that if there is going to be any time with the mother, it has to be supervised at a contact centre and only if the father agrees. Now, the father had sought various orders in relation to therapeutic counselling or treatment from a psychologist and orders concerning the mother giving clear drug tests, and they are all reasonable requests, but I do not need to specify them in the orders.
It seems to me that appropriate orders would be that the child live with the father; the father have sole parental responsibility in relation to the child; that in the event that the father and the mother reach an agreement in writing, then the child could spend supervised time at a contact centre with the mother. In light of the child’s age, I also make an order that this supervised time be on two occasions only. After the two visits at the contact centre take place – time will take place only in accordance with the child’s wishes.
The equal shared parental responsibility presumption (s 61DA) is rebutted because of the family violence – including the mother causing serious damage to the father’s property. So there is no equal shared parental responsibility. That would not be in the child’s best interests. There is no need to consider s 65DAA. I do not have any intention of going through any further detail of the provisions of s 60CC(2) or s 60CC(3). It is clear enough from the Court’s reasons why the orders are being made.
I am not required to make specific findings concerning the allegations of sexual abuse – nor is it desirable to do so – (M v M (1988) 166 CLR 69 at 77; Whisprun Pty Ltd v Dickson (2003) 200 ALR 447 at [62]). The nature and magnitude of the risk of harm to the child have been considered by the Court. To a large extent noting the child’s age (15 years old) – s 60CC(3)(a) looms large and significant weight is given to his wishes.
I did note in the evidence that there was, at an earlier point in time, a diagnosis that the father suffered from a serious mental illness. As it turned out, that was an incorrect diagnosis, and as it turned out, the father, in fact, has another mental illness, but he has correctly addressed that situation and he consults with his general practitioner, and I am satisfied there is no risk issue for the child in that regard, and I note the child is perfectly happy living with his father.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 26 May 2023
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