GALLOWAY & STEELE

[2015] FamCA 1215

FAMILY COURT OF AUSTRALIA

GALLOWAY & STEELE [2015] FamCA 1215

FAMILY LAW – CHILDREN – Undefended hearing – Where there is one child who is eight years of age – Where the mother has filed a notice of discontinuance in the substantive proceedings – No appearance by or on behalf of the mother – Where the court is satisfied that there has been substantial compliance with the requirements of natural justice and it is appropriate to deal with the matter undefended – Where final parenting orders had been made in 2011 for equal shared parental responsibility, that the child live with the father, and have no time with the mother for 12 months – Where the father seeks orders for sole parental responsibility – Where there is evidence that the mother has been involved in coaching the child in relation to allegations made by her against the father – Orders made that the father have sole parental responsibility for the child, that the child live with the father and spend time with the mother as agreed. 

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Mr Galloway

RESPONDENT: Ms Steele

INDEPENDENT CHILDREN’S LAWYER: Ms Oatley

FILE NUMBER: SYC 6615 of 2007

DATE DELIVERED: 17 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 17 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Donnelly

There was no appearance by or on behalf of the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oatley

Orders

1. That these orders be made on an undefended basis.

1. That Orders made on 8 July 2011 and 18 May 2012 be discharged.

1. That the father have sole parental responsibility for the child, J Steele-Galloway born … 2007 (“the child”).

1. That the child live with the father.

1. That the child spend time with the mother as agreed with the father or as ordered by the court.

1. That notwithstanding any other order, the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day.

1. That each parent is restrained from denigrating, or permitting another person to denigrate, the other parent in the presence or within the hearing of the child.

1. That the child shall be known as “J Steele-Galloway” and each party shall be and is hereby restrained from registering or referring to the child’s family name as any name other than “Steele-Galloway”.

1. That, until the child turns 10, the parties do all things and sign all documents to place the child’s name on the Airport Watchlist and the Court requests that the Australian Federal Police place the child’s name on the Airport Watchlist at all points of international arrival and departure in Australia.

1. That in the event the child is significantly ill and/or injured and requiring medical treatment, the party who has the child’s care at that time notify the other party as soon as reasonably practicable and provide the other party with notice as to the contact details as to where the child is being treated, including an address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.

1. That the father shall notify and keep notified the mother of the names and addresses and telephone contact numbers of each the child’s medical practitioners.

1. That in the event of any dispute between the parties with regard to the implementation of these Orders, the parties shall attend, in the first instance and prior to commencing court proceedings (except in the event of any urgent issue) a round table conference with the Independent Children’s Lawyer with a view to discussing and resolving the dispute. 

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

*(14)Leave is granted to the applicant father’s legal representative only to have photocopy access to the material from the New South Wales Police or the Department of Family and Community Services on the condition that the material is retained at all times by that firm and not released to anybody else. 

*(15)The Court notes that the purpose of that order is to ensure that there is ready reference to probative material in the case of repeated litigation.

*  Amended pursuant to Reg 17.02
of the Family Law Rules 2004 (Cth)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galloway & Steele 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 SYDNEY

FILE NUMBER:  SYC 6615 of 2007

Mr Galloway

Applicant

And

Ms Steele

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, J Steele-Galloway (“the child”), born in 2007.  A Notice of Discontinuance has been filed in the proceedings on behalf of the mother.  Her solicitor has not filed a Notice of Ceasing to Act.  The Notice of Discontinuance is dated 13 November 2015 in relation to the mother’s Response to an Initiating Application.

2. The next court date was noted on the Notice of Discontinuance to be 16 November 2015.  On 15 December an officer of the Court contacted the parties about an undefended hearing today.  That was communicated to the solicitors for the mother and an attempt was made to serve the mother at her address.  On 16 November 2015 there was no appearance by the mother.  On that date the proceedings came before Registrar Bastiani and an order was made listing the matter for hearing on an undefended basis for one day.  There has been an Amended Initiating Application filed and service was effected on the mother’s solicitor.  There was no response.  An attempt was made on 16 December 2015 to serve the father’s Initiating Application and supporting affidavit on the mother herself but it was discovered that the mother’s address was unfurnished and vacant. 

3. In a technical sense, there is no requirement to serve the mother personally.  Once a party has an address for service, that is where documents are to be served and for the mother, that was through her solicitor.  Had the mother’s solicitor ceased to act, notifying the Court of the mother’s latest address it would then be the mother’s responsibility to keep the Court advised of her address for service. 

4. I am satisfied that there has been substantial compliance with the requirements of natural justice in relation to the amended relief sought by the father.  It is not significantly different to the orders originally sought by him except in relation to parental responsibility. In those circumstances, there being no appearance by the mother or on her behalf at 3.00 pm, this is an appropriate matter to deal with undefended.

5. The father and mother are 44 and 41 years of age respectively.  The evidence is that they did not cohabit.  They started a relationship in September of 2003 and ended their relationship in May of 2006.  The child J is their only child.  He was born in 2007 and is eight years and nine months of age.  The father commenced the proceedings in the then Federal Magistrates Court on 29 September 2007 and, ultimately, final orders were made after a defended hearing, I think by then Federal Magistrate Altobelli on 26 July 2008, for equal shared parental responsibility, for the child to live with mother and to have increasing time with the father.

6. There was a file with the Department of Family and Community Services about that time and the Department closed its file.  The father then applied to the Federal Magistrates Court on 4 May 2010 in relation to allegations of abuse made against him.  On 11 June 2010 orders were made for the father to have supervised time with the child and the proceedings were transferred to this Court.  On 11 October 2010 Dr W interviewed the parties and on 22 December 2010 Justice Fowler of this Court ordered that the father have time with the child between 9.00 am and 6.00 pm on Saturdays, supervised by his mother.

7. There was a seven-day trial commencing on 1 February 2011 before Justice Fowler and on 8 July 2011, reasons for judgment were published and orders were made.  They provided for the parents to have equal shared parental responsibility for the child, that the child live with the father, have no time with the mother for 12 months and that there be an updated report, presumably from Dr W, after about eight months.  There was an appeal in relation to that decision, presumably by the mother, and that appeal was dismissed on 31 January 2012.

8. There was an agreement reached between the parties and orders were made in terms of their agreement on 18 May 2012 providing for a change in the mother’s time with the child.  In June 2012 the mother first had some unsupervised time with the child.  On 26 November 2012 abuse allegations were again made against the father in relation to the child.  There were reports made to the New South Wales Police in February 2013 and January 2014.  That has only come to light since those things occurred.  The father was not ever advised about those reports directly. 

9. From 2014 to May 2015 the mother failed to exercise time with the child in the midweek.  There was a dispute between the parties about the mother taking the child to a wedding of a relative of hers in Queensland in about May 2015.  On 13 May 2015 more allegations were made by the mother or through the mother to the New South Wales Police.  The child was retained by the mother on 17 May 2015 and an apprehended domestic violence order was granted against the father ex parte.  On 20 May 2015 a final domestic violence order was refused and the child was ultimately returned to the father by New South Wales Police. 

10. 25 May 2015 saw two binders containing allegations against the father provided to the police.  On 11 June 2015 the Department of Family and Community Services were involved, based on new notifications and on 17 June 2015the father made an application for a suspension of the mother’s time with the child.  There has been a review at the initiation of a senior officer of New South Wales Police into the allegations made against the father and in the course of that review there was a conclusion that, in the latter stages at least, although the mother was initiating allegations against the father, she was seeking to disguise or hide the fact of her involvement. 

11. There is a very extensive review report by Detective Sergeant AB of V Local Area Command dated 19 June 2015.  It has been redacted to some extent.  It recommends that apprehended violence order applications that were to be put to the V Local Court on 24 June 2015 be withdrawn.  It appears from the police records that her recommendations were accepted.  In a summary which is exhibit 4 of the report the police record shows there was evidence in the responses made by the child of coaching.  He mixed up with allegations of physical violence, issues about the father being greedy or selfish and later unfaithful, to various people.  The suggestion is that those complaints were given equal weight by the child but they are not of equal seriousness.

12. That behaviour shown by the child was consistent with behaviour that led to the earlier report of Dr W which in turn led to very significant orders for the reversal of the child’s living arrangements with his primary caregiver.  The fact that the child was unable to give details of any of the allegations of assault and the story in relation to particular things did not ring true.  A journal said to have been maintained by the child contained expressions the child did not understand, words correctly spelt that, in the opinion of police, the child probably would not be able to spell.  There was an assertion in the child’s writing to the effect that the journal was in his writing.  It is difficult if not impossible to imagine that unaided, the child would have had the concept of trying to defend the proposition that his words were not his own.  The journal said:

    This is not my mum’s writing.

13. The police have recommended that the issues concerning the child were not really matters for the police, the Local Court or apprehended violence proceedings, but something about custody.  It was noted that the mother had made no further urgent interim applications and it was noted that the mother had expressed a lack of confidence in the court.  It was noted that the AVO conditions sought at the insistence of the mother or her connections were in direct contradiction of the Family Court orders.  The police noted an inconsistency in the mother’s narrative, failing to mention what were the current allegations of physical assault and referring to things that had been the subject of earlier and old allegations.  There was something of a concern in the report about serving officers of the police or retired officers of the police giving assistance to the mother.  A term of the proposed AVO related to an allegation that the child had been exposed, unprotected, to a heavy hail storm.  Police noted the physical location, that there was cover available, that the father gave an explanation that he had put the child’s hand out to feel the hail.  That was seen to be a very different scenario than that painted in the documents supporting an AVO.  The report noted that an allegation in relation to a particular assault, punching the child in the testicles, was not raised by the child with the police and was denied by the father.  In any event it was thought by the police that there might have been some physical indication of such an assault. 

14. The fact that the mother had not provided all the information she gave to one authority to another and the mother’s explanation for not doing so was not accepted and was clearly wrong according to the police.  The mother denied speaking to the Department in relation to a matter but the department said there had been multiple notifications by the mother to them about those issues. 

15. It was only a small thing but there was a reference in the investigation to the fact that part of the child’s narrative was that he had been not adequately fed, that he had been given takeaway food by his father and in fact, unfortunately – or fortunately – on the occasion in question the police had been at his home and saw the paternal grandmother cooked food for the child.  Thereby the police had reason to know that the allegation was incorrect. 

16. The court makes orders by reference to what is in the best interests of a child.  How one goes about that is set out in the legislation.  There is a complicated pathway in Part VII of the Family Law Act 1975 (Cth) (“the Act”). It starts with parental responsibility.

17. If the court is to make an order for equal shared parental responsibility then certain things flow. There is a presumption about equal shared parental responsibility which can be rebutted. It is rebutted where there is violence and the court can obviously make a different order based on findings about what is in the best interests of a child. Those findings are made based on s 60CC of the Act. The parties have no meaningful communication. Importantly, the mother does not oppose an order that the father have sole parental responsibility. She does not have any application before the Court. She has not taken part in these proceedings.

18. It is not practicable for the parties to have equal shared parental responsibility in those circumstances and it is logical and sensible that decisions be made about the child by the person with whom the child lives and that will be the father.  The father should have sole parental responsibility.  No particular patterns of living arrangements have to be considered in those circumstances.  Section 61DA and s 65DAA do not apply and the Court is left to make decisions about living arrangements and other things based on the child’s best interests. 

19. These proceedings were started in June of this year and, therefore, s 60CC, as currently legislated, applies. There are primary and secondary considerations. The primary considerations are the benefit to a child of having a meaningful relationship with both parents and the need to protect the child from physical and psychological harm, being subjected or exposed to abuse, neglect or family violence. A meaningful relationship is one that is important or valuable to a child. The only evidence – and we have the findings of Fowler J leading to the pre-existing final orders in that regard.

20. Fowler J largely made findings in accordance with the report of Dr W, finding a significant risk of harm to the child in the continuing care of the mother.  In effect his Honour found that there was a meaningful relationship with both parents but highlighted there had been difficulties and there would be difficulties in the future in relation to sustaining that relationship with the mother.  His Honour optimistically opined about the mother perhaps gaining some insight into things. 

21. As to the risks, his Honour rejected all of the allegations made against the father and talked about the risks presented by the mother’s behaviour.  He concluded that it was more probable than not that the mother would not be able to change her attitude to the father and, as I say, found a significant risk of harm in the mother’s care.  As to the wishes of the child, I do not know that there is a recent expression of the child’s wishes in the evidence before me.  Fowler J found that the child was of an age where his views would carry small weight.  That is still the case here. 

22. In any event, the child is coming up for nine years of age.  If the child was at risk in the mother’s care, his wish to be with the mother would not be given significant weight.  If the child is not at risk in the father’s care then his wish not to be with his father would not be taken into significant account.  The other problem is the subtext of the proceedings, whereby the child has had a very rough ride because of the campaign that has been maintained by the mother. That has put him in a position where he has had a narrative to report on but he cannot maintain it because it was inconsistent with his experience.  His views are not important. 

23. As to the nature of the relationship with the child with each of the parents, the trial judge accepted Dr W’s opinion that while a primary attachment existed to the mother, it was an anxious and insecure attachment whereas there were features of the attachment to his father even then – and that was before a complete change of residence.  The judge accepted Dr W’s opinion that the type of anxious attachment he seemed to show with his mother was typical of the type one sees with oppositional defiant disorder, very aberrant behaviour for a child in those circumstances. 

24. There was evidence before the judge, which the judge accepted, of the contact supervisor’s reporting on a clearly warm and loving relationship between the father and the child and that accorded with the observations of the expert.  As to the extent to which the parents have taken or failed to take opportunity to participate in decision making, spend time with the child or communicate with the child, I do not know much more than I have reported on. 

25. There is in the narrative the observation that the mother did not take all of the opportunities she had to spend time with the child.  There is no suggestion that there were opportunities to make decisions that one of the parties or the other did not take up.  The extent to which the parents have fulfilled or failed to fulfil their obligations to maintain the child, I do not think I have any evidence about that.  There is some concern expressed about the mother’s accommodation but I do not know that there is much more I can say about that.  That is to say, most recently accommodation on the side of somebody else’s house; apparently the primary residence was also rented. 

1. The likely effect of change on the child, well, on the face of the evidence a change from the father’s care would be disastrous.  No one is seeking such a change but it would put the child back in a situation that has been perilous for him.  As to the effect on the child from separation from either of his parents, that is complicated.  Accepting for the moment that the mother has a lot to offer the child, she needs to be well and the balance between the damage done and the benefits unfortunately seems to have been weighed in the negative.  The other practical problem is that the mother does not seek any time with the child.  It is less than ideal for a child not to have access to a parent but that access needs to be beneficial in itself.  As to the practical difficulty and expense of a child spending time or communicating, there is no proposal for the child to spend time with the mother.  It is not feasible.

2. As to the capacity of the parents, that was extensively reviewed in his Honour’s judgment.  Nothing has happened since, other than to confirm the very issues that Fowler J raised in his decision, now some time ago.  His Honour foreshadowed what the problems might be, and they came about, and there it is.  Even though she tried to hide her involvement, the police have identified the mother as a major initiator of complaints against the father, none of which have been substantiated.  An internal review by the police, conducted at a senior level, has found the allegations to be internally inconsistent.  There is other evidence that the child is doing well.  Certainly, better than he was.  As to the maturity, sex, lifestyle, background of the child, there is nothing that particularly comes to attention there.  He is a young boy, of stated age.  I do not know that there are any particular cultural or other matters that are raised.  As to the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents.  The father has stuck in for many years, in extreme circumstances.  He has had to tell his story again and again.  He has been vindicated and supported in a judgment of this Court, after a defended trial.  Those matters were upheld on appeal.  Then he has had to face that all over again on a number of occasions through the agency of the mother.

3. The mother, on the other hand, apparently supported by some people, has persisted in a ham-fisted campaign whereby her involvement has been apparent in her or someone on her behalf coaching the child, and she has not been able to adequately demonstrate any responsibilities of parenthood.  As to family violence: there is no evidence of any.  The child has been the subject of systems abuse.  You can see that the authorities have avoided repeated interviews on occasions, but nevertheless the child has been the subject of welfare inspections, sometimes the boy was asleep, but there have been a number of interviews.

4. One can imagine that the child has been interrogated in the mother’s care. He has apparently been set quite a complicated task in writing out remembering things, the complaints he was to make about his father. That is abusive and violent behaviour, in my view. The definition of family violence was widened in the post-June 2012 amendments to the Act, covering that sort of overbearing, manipulative behaviour. There is no current family violence order that I am aware of.

5. Whether it would be preferable to make a different order, less likely to lead to further litigation.  I do not think one could be sanguine about that.  There has been a hearing on an undefended basis.  There is some protection in the case law in relation to repeated hearings.  There is a sense in which parenting orders are never absolutely final.  I would think the mother would have some considerable hurdles in instituting another review of the circumstances for this boy because of her approach to these proceedings in the past, her abandonment of the present proceedings and her conduct.

6. The law will take care of itself about that.  There is no other fact or circumstances relevant.  The orders sought by the father are appropriate.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 17 December 2015.

Associate: 

Date:  23 February 2016