GARDINER & MORGAN

[2017] FamCA 697

FAMILY COURT OF AUSTRALIA

GARDINER & MORGAN [2017] FamCA 697

FAMILY LAW – CHILDREN – With whom the child spends time – Where the father discontinues the entirety of his application – Where the mother seeks the final hearing proceed undefended – Where the child requires protection from exposure to family violence – Where it is not safe for the child to have a relationship with the father due to restrictions on the father’s capacity – Ordered no time between the child and father unless agreed in writing with the mother

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Mr Gardiner

RESPONDENT: Ms Morgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 1656 of 2014

DATE DELIVERED: 21 August 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 21 August 2017

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Ticehurst

SOLICITOR FOR THE RESPONDENT: Fielden & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting orders in relation to B born … 2012 (“the child”) made in this Court and the Federal Circuit Court are discharged.

2. That the mother have sole parental responsibility for the child.

3. That the child live with the mother.

4. That the child spend no time with the father unless there is a prior written agreement between the parties that time will take place.

5. That the mother is authorised to obtain and renew an Australian travel document (passport) issued by the Commonwealth of Australia for the child B born … 2012 without the consent of the father.

6. The mother may remove the child from the Commonwealth of Australia for the purpose of holidays overseas for the child with her.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardiner & Morgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC1656/2014

Mr Gardiner

Applicant

And

Ms Morgan

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These were contested applications for parenting orders in respect of one child, B, now aged five.

2. The applicant was the father, Mr Gardiner, aged 46.  The father is an Australian indigenous man of the C People.  He is a tradesman by occupation.  The father has an adult son in his mid-20s from an earlier relationship. 

3. The father filed an application for parenting orders in the Federal Circuit Court on 10 April 2014, not long after the separation of the parties.

4. The respondent is the mother, Ms Morgan, aged 46.  The mother is an Australian of European descent through her mother.  Through her stepfather, who has been in the role of her father since she was five or six years old, she identifies as a Maori woman.  The mother works for an organisation and is due to start as a manager for that organisation next week.  She is soon to complete her university degree.  She has two adult children from an earlier marriage aged now in their early to mid-20s. 

5. A final hearing in this matter was due to commence today.

6. On 18 August 2017 the father filed a Notice of Discontinuance of the whole of his application.  His McKenzie friend, Mr D, gave the Court advanced notice of the father’s intention.

7. The mother, legally represented by counsel, appeared and pressed her application for orders in simplified form.  She had sought orders for supervised time contingent on the father taking certain steps to ameliorate his behaviour to reduce risk to the child. 

8. These arose from recommendations in a Family Report completed in July 2015, when the child was about three years old.  Those recommendations are as follows:[1]

   The subject child to live with the mother:

   The child to commence spending time with his father at the [E Town] contact centre for two hours each fortnight for a minimum period of six months.  However, it is imperative that the father has detoxed from alcohol and engaged in a therapeutic relationship for these issues, either by way of participation in a residential rehabilitation program or in a counselling relationship with an alcohol and other drugs counsellor.

   The father to continue participating in Carbohydrate Deficiency Transferrin testing as randomly requested by the Independent Children's Lawyer.

   The father to participate in the Facing Up program once his detox has been completed.

   If the court so desires, this Family Consultant can provide an Updated Family Report to the Court in nine months from the date of this Report. 

   [1] Family Report dated 23/07/2017,  pars 49-53

9. There was more, but that is the heart of the recommendations.

10. Every opportunity has since been given to the father to consider the implications of the report and his behaviour in relation to his son.

11. His McKenzie friend, Mr D, sat with the father after 18 May 2016 and read through documents produced in response to subpoena in relation to family violence, the father’s criminal convictions, the role drugs and alcohol in particular played in his life by the unleashing of anger when he was affected by alcohol and his antisocial conduct in those circumstances.

Short History of Relevant Events

1. These parties met in 2010.

2. The child was conceived in mid to late 2011 and born in 2012.

3. There was an assault by the father on the mother’s daughter, then aged about 17, which led to an Apprehended Violence Order (“AVO”) which was subsequently withdrawn when the parties reconciled. 

4. Early in 2014 there was another episode serious enough, in terms of threat, abuse, drunkenness and exposure of the child to these things, that another AVO was obtained. 

5. The parties finally separated in January 2014.  That was at the time of an AVO and when the child was about 18 months old.

6. Later at the end of 2014 the child was included also in the protective order. 

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant

   (a)Notice of Discontinuance filed by the father Mr Gardiner on 18/08/2017;

   The Respondent mother

   (b)Amended Response filed 6/04/2017 and varied by Amended Outline of Case document;[2]

   (c)Affidavit of the mother, Ms Morgan filed 14/08/2017;

   (d)Affidavit of the maternal grandfather Mr F Morgan filed 14/08/2017

   (e)Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 16/06/2014;

   Reports

   (f)Family Report dated 23/07/2015.

   [2]  Exhibit 2

The Law

1. When making a parenting order, even in circumstances such as this, where the application now of the mother through her Response is undefended, the Court must consider the best interests of a child.  The primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

Parental Responsibility

1. The mother has taken the opportunity to make decisions about the child.  She has been protective of him in relation to the father, but she has also been emotionally protective of him by not undermining the possibility of a relationship with the father, if that could safely happen.  That was reflected in the orders that she sought, which were consistent with the recommendations of Mr G in the Family Report.

2. However, the father has chosen to take no step in that direction and has chosen to file no affidavit material which might reveal to the Court any such decision making. 

3. The mother has been responsible for maintaining the child, and as she progresses in her career, now about to graduate, no doubt will find it somewhat easier to do that.  Nevertheless, the whole responsibility has fallen on her. 

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Although in 2015 the child reacted favourably to the father, it has to be said that it was quite uncertain, whether at that time he understood who the father was.  Since then there has been no time between them.  There is no meaningful relationship presently between the child and his father.  That is a loss for the child.  There is a meaningful relationship, the most important relationship in the child’s life, between himself and his mother at this time. 

2. It is appropriate for the child to continue to live with his mother, as he has done all his life, and for her to have the responsibility to make both the long and short term decisions about his welfare growing up. 

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There is a need to protect the child from exposure to family violence, which has been demonstrated in the past. 

Additional Considerations

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

1. The child could not express a view about his father at this time.  He knows very little about him.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The most important relationships besides the mother for the child are with his adult half-sister and her partner, who are members of the household, and his adult half-brother, who is living independently.  There are also his grandparents, to whom he is very close and with whom he spends considerable time.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. There will be none.

2. The indications are at this time that the child will grow up not knowing very much about his father directly, but I am satisfied that he is likely to continue to be told about his father and his father’s people so that he can maintain that connection.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother has revealed her capacity to be both loving and protective. 

2. Tendered into evidence was the record of the father’s criminal convictions.  They are quite extensive, from 1991 until 2016, and relate to conduct when affected by alcohol; drug-use; driving a car affected by alcohol; offensive language in public places, including near schools; and other common assaults.  Generally such behaviour could be described as antisocial conduct over a long period of time.  This is clearly the issue in this case.

3. The father has a reduced capacity to meet the needs of his child due to, in particular, his dependence on alcohol and the impact it has on his behaviour when he is affected.  The father loves the child and wishes he could have a relationship with him, but it is not safe for that to happen due to this restriction on capacity.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child himself is five years old and due to start kindergarten in 2018.  He is immersed in the life of his maternal family and has done well, it seems, to date. 

If the child is an Aboriginal child or a Torres Strait Islander child

1. He is an Aboriginal child and has that connection with his culture which I am satisfied his mother and his maternal grandfather will ensure that he maintains.  It may be that at some future time he is able to make a connection with his father culturally.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother has willingly taken the role of raising the child alone in circumstances where it was not safe to continue together in the relationship.

2. The father has chosen or failed to decide to change his behaviour in order to take on the parental role.

Any family violence involving the child or a member of the child’s family, and 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

1. There has been family violence.  There is some evidence of that in the AVO made on 28 February 2014 and then varied on 5 November 2014 annexed to the mother’s affidavit.  There are also statements by her and her adult children about events referred to in these reasons.

Conclusion

1. Overall I’m satisfied that the child is doing well in his mother’s care and that her application for sole parental responsibility is the appropriate one in the circumstances.

2. There is an order that there be no time between the child and the father unless there is a prior written agreement, and it may be that as the years go past some such agreement is reached, depending on the attitude that the father takes.  I consider that the mother will be responsible in this regard and, if there is an opportunity which is safe and appropriate, she will arrange that for the child.

3. Orders are made accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 21 August 2017.

Associate: 

Date:  8 September 2017