Gibson and Killen (No 3)

[2016] FamCA 436

FAMILY COURT OF AUSTRALIA

GIBSON & KILLEN (NO 3) [2016] FamCA 436

FAMILY LAW – CHILD – FINAL PARENTING ORDERS – Best interests – applicant mother and Independent Children’s Lawyer seeking final orders on an undefended basis – where the evidence is untested – order made that the mother have sole parental responsibility – order that the child live with the mother and spend no time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – Procedural fairness – where the father has failed to comply with orders – where the father has failed to attend court – where procedural fairness has been afforded to the father and no proposals are made by the father.

FAMILY LAW – COSTS – where costs of mother and Independent Children’s Lawyer previously fixed and reserved to trial – circumstances justifying order – father ordered to pay fixed costs.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61B, 61DA, 68B, 69ZT(3), 117

Allesch & Maunz (2000) 203 CLR 172

APPLICANT: Ms Gibson

RESPONDENT: Mr Killen

INDEPENDENT CHILDREN’S LAWYER: Geelong Family Lawyers

FILE NUMBER: MLC 1112 of 2013

DATE DELIVERED: 3 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 11 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldsworthy

SOLICITOR FOR THE APPLICANT: Geelong Family Lawyers

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. That all previous parenting orders be discharged.

2. That the Mother have sole parental responsibility for the child of the relationship namely the child B born … 2009 (“the child”).

3. That the child live with the Mother.

4. That the child spend no time with the Father.

5. That the Father’s Response filed in the Federal Circuit Court of Australia on 9 May 2014 be struck out.

6. That the Mother be at liberty to remove the child from the Commonwealth of Australia from time to time for the sole purpose of holidays and the necessity for the consent of the Father to the issue of all further passports for the child be dispensed with.

7. That within 14 days of the date of these Orders, the Father pay to the Mother and the Independent Children’s Lawyer costs of 23 March 2016, previously fixed in the sum of $897 each, pursuant to Order 4 of the Orders made by the Honourable Justice Cronin on 23 March 2016.

8. That the matter be removed from the list of matters awaiting finalisation.

9. That the appointment of the Independent Children’s Lawyer be discharged.

10. 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 the 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 THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibson & Killen (No 3) 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 1112  of 2013

Ms Gibson

Applicant

And

Mr Killen

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother brings a parenting application, supported by the Independent Children’s Lawyer, regarding the child B, a seven-year-old child of a de facto relationship.  The father does not pursue his Response filed in the Federal Circuit Court on 9 May 2014 contesting the mother’s application.  The father has not appeared without explanation to pursue his Response and has not filed any material in this Court other than an Address for Service.

2. In February 2014, the proceedings were initiated by the mother in the Federal Circuit Court in the context of the father being charged by police with recklessly causing injury and unlawful assault of the child, and an investigation by the then Department of Human Services (“the Department”).  The police ultimately withdrew the charges against the father on 22 May 2014.  After numerous procedural hearings in the Federal Circuit Court, the proceedings were transferred to this Court on 8 July 2015.

3. The proceedings were initially listed for trial in this Court commencing on 25 January 2016 before Cronin J, at which time the father made an application for an adjournment in order to file material in support of his Response.  Cronin J granted the adjournment and listed the matter to be heard on 11 April 2016. The father failed to file that material and an order was subsequently made, on 23 March 2016, that the mother’s application proceed on an undefended basis.  Since then the mother has filed and served a Further Amended Initiating Application on 30 March 2016.

4. Cronin J, in procedural orders made 23 March 2016, ordered that s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) apply to the evidence in chief of the mother because of the seriousness of the allegations made by the mother.

5. Neither the mother nor the Independent Children’s Lawyer seek that there be a finding made that the father is an unacceptable risk to the child.

6. The father, despite being given an opportunity to do so, is not participating in the proceedings and the child has not spent time or communicated with the father since January 2014.  The father has, further, not availed himself of the opportunity under interim orders to send cards and gifts to the child for Christmas 2014 nor on any special occasions thereafter.  The father has not made any contact with the child’s school despite express authority provided by the mother for him to do so.

Background

1. The parties began living together in 2006 and the child was born in 2009.  The parties separated in January 2011 and the child lived with the mother thereafter. 

2. Final parenting orders were made by consent in the Federal Circuit Court on 7 October 2013.  These orders provided for the child to spend two non-consecutive nights each week with the father pending confirmation of the father’s enrolment in a post separation parenting program and counselling. Upon confirmation of the father’s enrolment in these programs, the child was to spend time with his father five nights per fortnight until the child commenced school and thereafter, for six nights per fortnight upon him reaching the age of six years.

3. The father asserted at the time that he was enrolled in a post-separation parenting program commencing October 2013 and that he commenced counselling. It would appear the father attended only one counselling session and it remains unclear as to whether the father completed the post separation program.

4. The child began spending time with the father on 19 October 2013.

5. In subsequent events, the Department were involved in an investigation of a complaint against the father where it was alleged that he had assaulted the child.  The father was charged with criminal offences against the child but the charges were ultimately withdrawn.

6. Following the advice of the Department, the mother filed an Initiating Application in the Federal Circuit Court on 28 February 2014 seeking to change the final parenting orders made 7 October 2013.  The father filed a Response opposing the application.

7. The mother filed a Notice of Child Abuse and a response was received from Child Protection on 25 March 2014 advising that they had conducted an investigation but would not be intervening.  The Department recommended the subpoena of documents held by them.

8. On 12 May 2014 interim orders were made in the Federal Circuit Court providing, among other things, for the parents to arrange for the child to undertake trauma recovery counselling through an expert, and for the parents to arrange supervised time between the child and the father at the E Community Services Centre, to commence when recommended by the expert. It was also ordered that the child’s passport be held by the Independent Children’s Lawyer and not released to the parents without the consent of all the parties.

9. On 4 July 2014, a similar order was made in the Federal Circuit Court for the father to resume time with the child at the E Centre, only when recommended by the counsellor that the child was to see at the centre pursuant to the May Orders.

10. On 19 September 2014, interim orders were made which, among other things, suspended time between the father and child altogether, but provided for the father to send the child cards or gifts for Christmas 2014.

11. The child has not seen the father since January 2014.

12. An order was made on 8 July 2015 transferring the matter to the Family Court.

Procedural Fairness

1. The matter was initially listed for final hearing in the Federal Circuit Court on 22 April 2015, at which time the father appeared on his own behalf and sought an adjournment. This application was acceded to and the matter was listed for hearing in February 2016.

2. A subsequent order made in Chambers, brought the final hearing date forward to 8 July 2015. When the matter returned on 8 July, the father appearing on his own behalf, again, sought an adjournment. This adjournment was granted, and the matter transferred to the Family Court.

3. The father has appeared on some previous occasions for procedural hearings before Cronin J, but not on others.

4. On 22 September 2015, Cronin J made orders in chambers, without the need for an appearance by any party, allocating the matter a directions hearing on 6 October 2015.

5. The matter returned before Cronin J on 6 October 2015, at which time the father did not appear. The matter was listed for trial on 25 January 2016. Directions were made for the filing of material. The father did not comply with those directions and did not file any material.

6. On 25 January 2016 the parties and the Independent Children’s Lawyer attended before Cronin J for the commencement of a trial.  The father was self-represented and sought that the proceedings be adjourned so that he could prepare his case and file material.  On that date the father filed a Notice of Address for Service.

7. The proceedings were adjourned to provide the father with the opportunity of participating in the trial.  However certain costs orders were also made against the father.  The mother and the Independent Children’s Lawyer were given liberty to apply on short notice if the father failed to comply with orders for the filing of affidavit material by the due date. They were also given the right to seek to have the matter proceed on an undefended basis. 

8. The father failed to file any material and at a further procedural hearing before Cronin J on 23 March 2016 the father failed to appear.  On that day Cronin J ordered that the application of the mother as amended and filed on 1 April 2015 proceed on an undefended basis on the return date subject to any other order of the trial judge.  He also reserved the costs of the mother and the Independent Children’s Lawyer each fixed in the sum of $897 to the trial.  He also ordered that the father be served by email only with a copy of that order.

9. The father had not filed any substantive material since April 2015.

10. On 11 April 2016 leave was granted for the applicant to file affidavits of service.  The affidavits of service disclosed that the father was served with the mother’s Further Amended Initiating Application, the affidavit of Mr F and an outline of case by post and electronic communication on 30 March 2016. The order of this Court dated 23 March 2016 was served on the father on 24 March 2016.  The affidavit of the mother sworn 30 March 2016 was served by post and electronic communication on the father on 1 April 2016.

11. As High Court authority makes plain (Allesch & Maunz (2000) 203 CLR 172), where a persons’ interests may be adversely affected by a Court’s decision, that person must be given the opportunity to place before the Court material and submissions before a decision is made. However, as Kirby J emphasised, what is important is the opportunity to be heard. As his Honour observed, at [38]:

    …Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require. 

12. In circumstances where the father has been afforded numerous opportunities to file material in support of his Response and has failed to do so, and where the matter has been listed for final trial on not less than three occasions, on each of which the father has sought and been granted an adjournment to permit him the opportunity to file further material and participate in the proceedings, I am satisfied that he has been afforded the opportunity to be heard and to place his case before the Court and that it is appropriate for the matter to proceed on an undefended basis. 

Orders Sought

1. In her Further Amended Initiating Application, the mother sought orders that:

   a)All previous orders be discharged;

   b)The mother have sole parental responsibility for the child;

   c)The child live with the mother;

   d)The father, his servants and agents, be restrained by injunction from spending time with or communicating with the child;

   e)The father’s Response filed in the Federal Circuit Court on 9 May 2014 and any Amended Response, affidavit or other material filed by the father after 11 March 2016, if any, be struck out;

   f)The mother be at liberty to remove the child from Australia from time to time for the sole purpose of holidays without the father’s consent, and to that end, the necessity for the father’s consent to the issue of passports for the child be dispensed with.

2. At the hearing before me, counsel for the mother and the Independent Children’s Lawyer produced a jointly signed minute of final orders sought by the mother and the Independent Children’s Lawyer that were entirely consistent with the orders sought in the mother’s Further Amended Initiating Application outlined above.

Evidence and Standard of Proof

1. The applicant mother relied upon the following material in support of her application:

   ·Affidavit of the mother’s evidence in chief filed 30 March 2016;

   ·Further Amended Initiating Application filed 30 March 2016;

   ·Affidavit of Mr F filed 30 March 2016;

   ·Notice of Risk filed 4 March 2014.

2. The Independent Children’s Lawyer relied upon the following material:

   ·Affidavit of Dr A filed 17 April 2015;

   ·Affidavit of Ms G filed 21 April 2015;

   ·Subpoenaed material tendered;

   ·Section 91B report prepared by the Department pursuant to the orders made 13 June 2014 (undated).

3. As already observed, the father did not appear at court to identify any affidavit or other material in his case.

4. In these circumstances, the only evidence properly before the Court for the purposes of the undefended hearing is the material outlined above in the cases of the mother and the Independent Children’s Lawyer which is admitted into evidence unchallenged.

5. 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 proceedings; and

   c)The gravity of the matters alleged.

6. I am satisfied that the mother has provided evidence to prove her case on the balance of probabilities.  The father has not elected to counter her evidence with other credible evidence.

7. The father has failed to appear without explanation and is not pursuing his Response.  He has been given a reasonable opportunity of participating in the proceedings and has not filed any material in support of his Response in this Court.  It is appropriate in these circumstances to strike out his Response filed in the Federal Circuit Court on 9 May 2014.

Evidence

Evidence of the Mother

1. The evidence of the mother is unchallenged and untested.  I accept her evidence in the following terms.

2. The mother asserts that the father was verbally, financially and emotionally abusive throughout the parents’ relationship.

3. Immediately following the parents’ separation, the child would spend time with his father on an ad hoc basis, at the father’s request. The mother deposes that she acceded to the father’s requests to spend time with the child because she was intimidated by him.  

4. She deposes that on 22 June 2012, while she was out with her then boyfriend, she received a telephone call from her mother telling her to call the father. When she telephoned the father, he said “you need to get here now it’s an emergency, the child is in danger”. She drove immediately to the father’s house and when she arrived observed the police to be present and the father staggering and smelling strongly of alcohol. When she took the child, she says the child said he was scared, cold and hungry and that he had been hiding with his father, had called for her but she was not there.

5. On New Year’s Eve 2012, the mother asserts she and her then boyfriend, and the father and his girlfriend attended celebrations at the same venue during which the father became intoxicated. She says, having left the venue in the early hours of the morning, she received numerous missed calls and text messages from the father in which he suggested meeting the mother’s boyfriend in a “quieter” place. This communication also included various references to the father making sure the child was “always safe” and the mother having a “shit fight” on her hands in relation to the ongoing care of the child.

6. Between 28 January 2013 and 8 February 2013, the child was cared for by his father and paternal grandmother while the mother was away on holiday. On their return, when the mother went to collect the child from the father, she says he stood over her while she was holding the child and threatened that he and his new partner would get “full custody” of the child and called her a “stupid bitch”.

7. The mother subsequently applied for an Intervention Order, which was granted in the absence of the father. The order remained in place on an interim basis pending the allocation of a hearing date. The parties respective accounts as to the delay in the making of a final order differ: the father asserts that it was because the presiding Magistrate was not satisfied of the mother’s evidence and suggested she reconsider her application, while the mother asserts the Magistrate was not prepared to list the matter for final hearing while the Family Court proceedings remained on foot.

8. The child then did not spend time with his father until 15 March 2013, when he commenced spending daytime time with him twice per week.

9. On 17 May 2013, the mother says she collected the child from his paternal grandmother (pursuant to agreed changeover arrangements) and noticed the child had a scratch on his face. She says the child slept longer than usual upon his return home and when she woke him, he appeared drowsy and dizzy and complained of having a headache. She then observed that the child’s face was swollen near his eye. When the mother asked the child what happened, he reported that he had been naughty and hit the father so “daddy hit me back” and that “daddy hit me on the head like this”, demonstrating an open handed strike to the face, and continued, “Nanny was telling him to stop, stop hitting me.”

1. The mother subsequently reported this incident to the police and the Department. The maternal grandmother took the child to the doctor the following day, the notes of which appointment do not record any visible injury to the child’s face. The child was taken to the doctor again on 19 May 2013, due to a bruise developing on his eye however there is no recounting of those notes in evidence. The mother then did not facilitate the child’s time with his father on 20 May 2013.

2. On 28 May 2013, when the child was returned to the mother’s care after spending time with his father, the child reported that he had been taken to the doctor. The mother subsequently telephoned the doctor’s surgery to find out what happened and was informed by the doctor that the father attended the appointment and said that he had concerns about the child’s mental wellbeing and showed the doctor a video of him “interrogating” the child. 

3. In late June 2013, the parties disagreed about upcoming changeovers in circumstances where the paternal grandmother and aunt, who were usually responsible for facilitating changeover, were to be away. The mother encouraged the father to speak with her solicitor to arrange alternative arrangements however, no such communication was received. The father then did not attend the changeover and rather sent the mother a text message which outlined that he would make his solicitors aware of her failure to facilitate time as evidence of her attempt to “diminish” the child relationship with his father.

4. As already noted, final orders were made by consent on 7 October 2013, which provided that the child live with the mother and spend time with the father, which time was to increase upon the father enrolling in a post-separation parenting program and counselling.

5. The child subsequently spent time with the father pursuant to these orders. The father’s then solicitors confirmed that the father was enrolled in a post separation parenting program and that he had commenced counselling. The mother says that thereafter the child commenced spending time with his father three nights in one week and two nights in the alternate week.

6. On 15 October 2013, the mother’s application for an Intervention Order in the Geelong Magistrates’ Court was heard and resolved on the basis of the father giving an undertaking without admission of the allegations in the complaint.

7. The child spent time with his father from 11 January 2014. On 12 January 2014, the father sent a text message to the mother asking her about bruises on the child and suggesting that the maternal step-grandfather may have caused the same. The mother told the father that the child was always properly supervised and there was “no way” the maternal step-grandfather had done anything to cause harm to the child. The father then requested that the mother not leave the child in the care of the maternal-grandfather as he was concerned about bruises on the child’s bottom, which the child reported was caused by the maternal step-grandfather, and to which request the mother agreed.

8. When the child was returned to the mother on 14 January, the father informed her that he had taken the child to the doctor on the previous day because of a lack of bowel movements and was informed by the doctor that the child had a “blocked intestine”. The father also informed the mother that they (he and the child) were calling the “marks on [the child’s] bottom a “rash” not a bruise”.

9. She says when she checked under the child’s clothes, she observed “extreme bruising over his lower back and buttocks … grey and black in colour”. She says there was no bruising on the child when he went into his father’s care.

10. The mother said that she spoke with the child’s doctor who told her that the child had attended upon him with his father the previous day and had said in his father’s presence that the maternal step-grandfather “hurt him”.

11. The mother thereafter suspended the child’s time with his father, pending investigation of the bruising by the Police and the Department.

12. On 24 January 2014, the child was interviewed by an officer of the Department who concluded that the child had “made a clear disclosure that his father was the perpetrator of the physical abuse [and] [i]t is child protection’s current assessment that the father is to have no contact with the child”.

13. On 28 February 2014, the mother subsequently filed an Initiating Application seeking a variation of the 7 October 2013 orders.

14. Following the first return of the matter before the Federal Circuit Court in May 2014, and in compliance with orders made that day, discussions were had in relation to the appointment of a counsellor to engage in trauma counselling with the child. The child was, then, still not spending time with his father.

15. It was subsequently agreed that this counselling be undertaken at the E Centre. The mother completed her intake at the Centre on 24 July 2014 and the child commenced attending upon that counsellor on 25 July 2014.

16. The mother says that following the child commencing attending upon the counsellor, he had nightmares that the father was smacking him. She says these continued throughout the duration of the counselling.

17. In November 2014, the parents and the child attended upon Dr A for the purposes of a psychiatric assessment and family report.

18. The mother deposes to the child suffering some distress following his assessment with Dr A. She says, following this interview, the child reported that he did not ever want to see his father again and on another occasion reported that his father was in heaven. When the mother told him that the father was not in heaven and asked why the child thought that, the child reported “he should be for hurting me”.

19. The mother says that the child’s “anxiety related behaviours” have ceased since the conclusion of his counselling and he no longer has nightmares. She says the child will sometimes still speak about his father and say things like “my dad is a bad man” and “he kept smacking me over and over” and will tell friends or people who ask about his father that his father is dead and is “a baddy”. The mother says despite her telling him that it is not true, the child maintains this view.

20. Despite her assertions that the child’s “anxiety related behaviours” significantly diminished upon the conclusion of the counselling in September 2014, the mother recounts an incident in January 2016, in which the mother gave the child a “timeout” for being disobedient. The mother says when she shut the child’s bedroom door he “completely lost it, screaming hysterically running out of his room opening the door” and saying “daddy used to lock me in my room and close the door, that’s what daddy used to do, he’s a baddy for smacking me, don’t do what daddy did and close the door”. She also reports that the child has said, “I hate bed time because that’s when daddy smacked me”.

Evidence of the maternal step-grandfather

1. The stepfather of the applicant mother deposes that the mother and the child lived with the maternal grandmother and him at their home from early 2013 until 26 February 2014.  He deposes that he was interviewed by the police about allegations that he had hurt the child. He denies causing the child any injury or harming him. He was never charged with any offence against the child arising out of that interview. He deposes that he has never been convicted of an offence involving violence.

Report of Dr A dated 17 March 2015

1. Dr A prepared psychiatric assessments of both parents and the child and prepared a family report dated 17 March 2015 for the proceedings.  His evidence is untested but I accept his unchallenged evidence in the following terms.

2. Dr A in his report described materials provided to him including, among other things, a purported transcript of a videotaped statement made by the child and taken by the father in January 2014. The father claimed that the child reported in the recorded DVD that the maternal step-grandfather was the person responsible for hitting him.  He notes later in his report that the DVD was viewed by a Dr H at the I Medical Centre who reported that the father used leading questions and that this together with the child’s age made it difficult to interpret the information on the videotape. Dr A was unable to view the DVD. 

3. Dr A noted that the mother asserted that it was the father who hit the child.

4. Dr A summarised the material that was provided to him. Included within this material are medical records from the I Medical Centre. Those records reflect, amongst other things, that

   a)In January 2013, the father attended upon his general practitioner requesting help with anger management and alcohol issues which he considered were impacting upon his relationship with his then partner. The doctor’s notes of that session reflect the doctor’s observations that the father had narcissistic personality traits and referred him for a Mental Health Care Plan;

   b)In April 2013, the father was brought to the Emergency Department, having absconded from the hospital earlier. He was initially brought in following a suicide or self-harm attempt in an intoxicated state, which he identified as being a result of issues with the mother and the dispute in relation to the care arrangements for the child. The father became verbally aggressive upon being returned to the hospital such that he was shackled to the bed;

   c)On 28 May 2013, the father took the child to the general practitioner with concerns about the child’s mental wellbeing. The father reported he believed the child had been rehearsed to say that it was the father who had been hitting him. The father denied doing so and expressed concern about the effect on the child of being coached to lie. The father showed the doctor a videotape of an interaction between the father and the child in which the doctor observed there were many leading questions by the father and which the doctor found difficult to interpret given the child’s age and the father’s style of questioning;

   d)The father had been referred to a psychologist in October 2013 for assistance with alcohol consumption, however he had only attended one session;

   e)On 13 January 2014, the father took the child to the doctor having noted bruising on the child’s buttocks. The child told the doctor that he was smacked very hard on the buttocks by his maternal step-grandfather. The doctor noted that the child had “extensive fresh bruising across both buttocks…which was consistent with forceful smacking” and that the bruising was dark blue with no yellowing which indicated he had been caused in the previous 1-4 days; and

   f)The child was interviewed by the police during which he described lying face down on the bed and being smacked on his bottom very hard again and again and then saying “I’m better, I’m better” and apologising. While this disclosure did not identify who was responsible for the smacking, the child continued by describing the paternal grandmother asking if she could read him a story and his father giving him a kiss and cuddle. What follows is a somewhat confused account as the child attempts to describe which part of the story is true and which is a lie, however he later clearly states that it was his father who smacked him on the bottom really hard with his hand.

5. During the interview with Dr A, the mother made accusations of abuse against her by the father. She detailed numerous incidents of physical, emotional and financial abuse. She also detailed difficulties in implementing the parenting arrangements after the October 2013 orders were made. She asserted that the child was often resistant to transitioning into his father’s care and that the father would manipulate her. She gave an example in relation to the child’s time with his father over the Christmas period in 2013. She said the orders provided for the child to return to her care for time on Christmas Day in circumstances where the child would otherwise be returned to her care at 8.30am on Boxing Day as the orders did not suspend the usual spend time arrangements on Boxing Day.  The father then demanded that the mother return the child to his care at midnight on Christmas night and then return to the mother’s care at 8.30am the next day. The mother felt she had to offer the father additional time in order to avoid waking the child at midnight.  

6. The mother reported to Dr A that when the child was returned to her care he had bruises on his backside that looked like a handprint. She said the child said that his father smacked his bum over and over again and that he had to trick the doctor by saying that it was his maternal step-grandfather.

7. The mother also reported that she parks her vehicle out of sight and still worries about seeing the father. She reported that she felt she could not take the child for a bike ride in case they came across the father and that the child became anxious when they drove past the place where changeovers used to occur.

8. Dr A also interviewed the father who, during that interview, reported that he had felt that everything was too hard and had thoughts of giving up. He reported “periods of feeling like everything was so painful” and he lacked real motivation to keep fighting.

9. He reported that he would drink up to 6-10 beers at a time if he was out with friends at a weekend but tried not to drink during the week. He accepted that he would drink more than he presently does when he was in the relationship with the mother. He objected to Dr A’s interest in his alcohol consumption, asserting that it was unfair and because of its potential implications.

10. The father acknowledged that the relationship between he and the mother was marked by arguments, lots of screaming and yelling every other week, and that he used to tell the maternal grandmother that he did not want to be in a relationship with the mother but felt caught. He denied the mother’s allegations of physical abuse, particularly pushing her down the stairs or throwing food at her, and said that he never laid hands on a woman or a child.

11. The child refused to see his father during the interviews. When informed of this, the father became quite distressed and asked if anyone cared what was being done to the child’s mind.  He said he thought the mother would do anything she could to destroy the bond between the child and his father.

12. The father disputed the child’s reporting to Ms G that he had punched a snowman made by the child in the face and kicked him (the child) in the leg and said that it was not possible for him to have done such things because he had never taken the child to the snow.

13. The father reported that he had considered withdrawing his application and discussed this possibility with his solicitor and psychologist. He expressed concern about the child attending upon psychiatrist after psychiatrist reinforcing the child’s negative view of the father. He expressed that he wanted to spend time with the child and wanted to be able to counter the mother’s influence however was worried about what was best for the child given the manner in which he asserts the child’s mind is being manipulated. He does not believe it is in the child’s best interests for his father to be excluded from his life or from involvement with the paternal family.

14. The child was also brought to the interview with Dr A. He was clinging to his mother’s neck upon arrival. He spontaneously said to the report writer that he did not want to talk about his father. He reported that the father had told him to say his Poppy (maternal step-grandfather) had smacked his bottom when it had actually been his father. When Dr A suggested that he draw a picture of his other [being his paternal] family, the child shook his head vigorously and said he did not want to.

15. When asked what his three wishes might be, his first two were for toys and the third was to not have to talk about his father anymore: he said he gets scared talking about his father because his father smacked him and he did not like it.

16. The child reported that he had not done anything wrong and his father was a “meanie” to him and that his father “just smacks my bottom every time, whenever I look at him,” reporting it might have occurred a hundred times.

17. The child could not recount a single positive, good or fun time with his father: “not one, zero”.

18. In response to a question from Dr A, the child reported that his maternal step-grandfather never smacked him and nor does anyone else and that he does not like his father any more, never liked him and would not care even if his father apologised.

19. Dr A considered that the child’s alienation from his father appeared out of proportion even if it was accepted that the father caused the bruising in January 2014. He was reaffirmed in this conclusion by the child’s response to the counselling with Ms G – a process which was designed to re-establish the child’s relationship with his father – as further evidence of significant alienation.

20. During the child’s interview with Dr A, Dr A states that the child told him that while the father had said the maternal step-grandfather smacked the child’s bottom, it was in fact the father who had done so. When the child was asked to draw a family drawing, his drawing included his mother, the maternal grandmother and the maternal step-grandfather.

21. Dr A recommended that, on the basis of his assessment at the time of the report, the mother be given sole parental responsibility for the care and wellbeing of the child. He also recommended that the child not be required to spend time with the father until and unless the child had undertaken a period of reportable therapeutic counselling and the therapist/counsellor had recommended that the child was ready to resume contact with the father.

Report of Ms G dated 17 September 2014

1. Ms G is a counsellor employed through the Supporting Children after separation program at the E Centre.  Her evidence is untested and unchallenged.

2. I accept her evidence in the following terms.

3. Ms G counselled the child as part of that program and by order of the Federal Circuit Court for five sessions between 25 July 2014 and 12 September 2014.

4. Ms G deposes that the child stated that he does not want to go to his father’s house because his father smacks him “really hard on the bottom and yells and growls at him a lot”.  She records that the child stated quite clearly that he is scared of his father. 

5. Ms G recorded that the child told her when he plays with playdough the father tells him his creations are stupid and destroys them. He also recalled an incident where his father hit him in the head with a hammer because everything he had made was horrible. The child demonstrated the incident to her. He described the father yelling at him at night to stop crying and telling him if he did not go to sleep immediately he would smack him.

6. The child detailed a further incident in which the father is said to have kicked him in the leg and pushed the head of the snowman he made because he did not like it. He said his paternal grandparents had yelled at the father for doing so.

7. She noted that the child described feelings of being happy and excited whilst with his mother because he feels safe. He described his relationship with his paternal step grandfather as being happy because he makes him laugh. He described feelings of worry, being scared and angry and also terrified whilst he was with his father.

8. The counsellor noted that the child was agitated and very scared during the sessions and spoke about bad dreams he was having about his father as a violent man.

9. It is the counsellor’s professional opinion that the child experiences his father as terrifying.  The child very clearly described, and at times imitated, his father’s behaviour including yelling loudly and abusively during the counselling sessions. She deposes that there is a serious concern that the accumulated effect of the fearful experiences the child has had with his father will have a detrimental effect on his healthy emotional development.

1. Ms G recommended that the child not have contact with the father in any environment. She recommended that the child not attend supervised contact with his father because the mention of the father’s name terrifies the child.

Report of the Department pursuant to section 91B order made 13 June 2014 (undated)

1. Written information was provided by the Department in response to an order made by Judge Curtain in the Federal Circuit Court on 13 June 2014.  The information is untested and unchallenged and is as follows.

2. The information refers to a report in May 2013 received identifying concerns for the child on return from contact with the father.  The child had a scratch on his face and it was reported that the child had said ‘daddy hit me’. The report identifies that the child and mother met with officers of the Sexual Offences and Child Abuse Investigation Team (SOCIT) at which time no visible injuries were observed and the child made no clear disclosure. Child Protection met with the mother and child and observed a slight grey bruise on the outer corner of the child’s left eye. Child protection assessed at the time that there was insufficient evidence to suggest that the child had been physically harmed whilst in the care of the father and the mother was assessed as a protective parent and therefore there was no role for child protection intervention.

3. Child Protection received a second report on 14 January 2014 which alleged that the child presented with significant bruising to his buttocks after contact with his father.  The child completed a video and audio recorded evidence interview with police and ‘disclosed that his father hit him on the bottom’. The mother was advised to keep the child in her care until a child protection investigation could be undertaken. Throughout the child protection investigation, on three separate occasions the child disclosed that his father had hit him on the bottom. He did not identify his father as a safe adult in his life despite prompting from the officers to think of other people with whom he might feel safe. Throughout the child protection involvement, the child refused to have contact with his father even when options for supervised contact were proposed.

4. The father denied that he had caused any harm to the child stating that he had not hit him. Child Protection ascertained that the father had a history of aggressive behaviour particularly when influenced by the consumption of alcohol.

5. Child Protection ceased involvement with the family as of 24 March 2014 when the police advised of their intention to pursue criminal charges against the father in relation to the incident.

6. The assessment of Child Protection was that the child had experienced physical and emotional harm. It was assessed that the father ‘is the likely person to have caused the harm’ to the child.  The mother was assessed to be a protective parent and given that the child remained in her care there was no need for Child Protection to remain involved with the family. The mother was noted as making appropriate decisions in relation to the child’s safety and well-being.  Child Protection assessed the child as requiring therapeutic counselling in relation to his experiences and requiring support regarding any contact with the father.

The Relevant Law

1. These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.

2. What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

1. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

1. The primary conditions 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.

2. 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.[1]

   [1] Section 60CC(2A) of the Act

3. There is no evidence that the father proposes to have a meaningful relationship with the child and there is no evidence that he completed the program or counselling ordered in the final parenting orders in 2013 or since.  The father has not sent the child any gifts or cards as provided for in orders outlined earlier. There is no evidence that the child would benefit from any contact with his father at this time.

Section 60CC(3) Additional Considerations

1. The additional considerations are listed in section 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

1. I accept the evidence of Ms G, who counselled the child for about two months.  I accept her professional opinion that the child experiences his father as terrifying and that there is a serious concern that the accumulated effect of the fearful experiences the child has had with the father will have a detrimental impact on his healthy emotional development.  I accept that the child has expressed to this counsellor and to Dr A that he does not want to see the father.  The child has been consistent in his views and I place some weight on this consideration.  I do not place significant weight on this consideration having regard to the concession of the mother because of the young age of the child.

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. On all the evidence I accept that the child has a close relationship with the mother and feels safe living with the mother.  The child has not spent time or communicated with the father since January 2014.  There is no evidence of the child having any recent contact with the paternal grandparents.  There is some evidence that the child previously had a good relationship with the paternal grandmother, and that she helped facilitate the child’s relationship with the father. However, it is also evident that this has soured and the child has not spent any time with members of the extended paternal family since January 2014.

2. The mother and the child lived with the maternal grandmother and step-grandfather from between early 2013 until February 2014. The maternal grandmother accompanied the mother and child to the interviews with Dr A, however she was not interviewed.

3. In 2013, at the time the first family report (dated 20 August 2013) was prepared, the mother informed the report writer that she was living with the maternal grandmother and step grandfather for financial reasons and for support, and that the support of the maternal grandmother had been helpful. That report suggested that both the paternal and maternal grandmother had been a “valuable source of support” for the child.

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

1. I accept the evidence of the mother that she alone has arranged for the child’s kindergarten and school enrolments and paid all associated fees.  I also accept the evidence of the mother that the father spent no time with the child between 15 February 2013 and 15 March 2013 in circumstances where the mother had proposed that he spend two days each week with the child.

2. The reality of the circumstances are that because of interim court orders the father has not spent time with the child since January 2014.  However the father has not made contact with the child’s school and neither he nor his family have sent cards or gifts to the child for Christmas 2014 or any special occasion since.  This is despite court orders providing for that communication with the child.

Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligation to maintain the child

1. I accept the evidence of the mother that she has been solely responsible for the support of the child since separation and until she made an application for child support on 13 October 2015.  I accept the evidence of the mother that the father commenced paying child support after that application for the first time since separation. I further accept that that child support is currently in arrears, which arrears are being paid down by an increase in the father’s weekly liability.

2. I accept the evidence of the mother that she received an exemption from Centrelink in January 2011 from seeking child support due to family violence.

Section 60CC(3)(d): 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 parents or any other child, or other person (including any grandparent or other relative of the child), with whom he has been living

1. On all the evidence the mother has always been the child’s primary carer and I am satisfied that any change to this arrangement would have a detrimental effect on the child.  The proposals of the mother and Independent Children’s Lawyer would not change the circumstances of the child.

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

1. There is no application by the father to spend time with or communicate with the child and no evidence is before me in relation to this consideration.

Section 60CC(3)(f): the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. Again the father makes no application and thus it is not necessary to consider his capacity to provide for the needs of the child.

2. The mother has been assessed by the Department as acting protectively in relation to the child by making the application to this court and I accept that the mother has demonstrated a capacity to support the child emotionally, intellectually and to provide for the needs of the child on all the evidence previously outlined.

3. There is evidence of a relationship between the child and the paternal grandmother in the past but no evidence about any recent contact.  There were no submissions made about the relevance to this application of any other relative of the child.

Section 60CC(3)(g), (h)

1. There is no evidence before the court relevant to these considerations.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents

1. I accept the evidence of the mother that she has been responsible for maintaining the child since separation and that she takes all responsibility for his day-to-day and long-term care and needs.  I am satisfied that the mother has been a responsible parent. 

2. The father does not provide any evidence as to his attitude to the child or responsibilities of parenthood. The father has been unprepared for proceedings, delayed the proceedings and failed to participate in the final hearing without explanation.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family

1. The mother alleges that the father was violent and controlling towards her both during and after the relationship and that the child was present and witnessed family violence on a number of occasions.  The mother alleges that on or about 11 January 2014 the father physically assaulted the child causing him to suffer significant bruising to his buttocks and ongoing emotional distress.

2. The mother’s evidence is unchallenged but untested.  Neither the mother nor the Independent Children’s Lawyer seeks that any finding be made about this evidence or that the father be found to be an unacceptable risk to the child.

3. The police charged the father with criminal offences against the child but subsequently withdrew those charges.  The investigation by the Department found, according to the Case Closure Summary dated 24 March 2014 quoted by Dr A in his report, that “harm under s 162(c) and (e) was substantiated and it was assessed that the father is likely to have caused the injury to [the child]”. The Department did not seek to intervene in the proceedings. 

4. Having regard to the seriousness of the allegations made by the mother, the fact that no finding against the father is sought and the evidence is untested in circumstances where the rules of evidence apply to the mother’s evidence in chief, no findings are made against the father.

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

1. The case outline of the mother does not rely upon this consideration and states that there is not a current intervention order. 

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

1. The parties have been in litigation in the Federal Circuit Court and this Court since 2013 and it is important to bring some finality and certainty to the arrangements for the care of the child.  The joint proposals of the mother and the Independent Children’s Lawyer regarding travel for the child outside Australia from time to time for the sole purpose of holidays with the mother without the consent of the father is also appropriate to bring an end to proceedings.  There is a benefit to the child in the mother having certainty and finality about the parenting arrangements given that she has been and remains the primary carer of the child.

Parental responsibility

1. 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.”

2. Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the child that the parents have equal shared parental responsibility. However, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

3. I am satisfied that the presumption of equal shared parental responsibility is rebutted on the evidence in this case because the father has failed to pursue his Response.  There is no evidence that he seeks to have a meaningful relationship with the child.  The father has not provided any evidence that he has completed the programs and counselling which were conditions for the child spending time with the father in 2013.

4. I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

5. 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.

Whether the child should spend time with the father

1. On all the evidence previously outlined, I am satisfied that it is in the best interests of the child for him to have no contact with the father.  This is particularly having regard to the evidence of Dr A and the counsellor Ms G outlined previously.

2. Dr A’s evidence outlines in detail from the records of the I Medical Centre the conduct of the father regarding his anger management issues, alcohol and mental health issues.  The father was involuntarily admitted to hospital by police on the evening of 31 March 2013.   He absconded later that night and was found by police and returned to the Emergency Department at 12.01am on 1 April 2013.

3. He was described as “uncooperative, verbally belligerent and abusive to most staff” on 1 April 2013.  Since then the father has been assisted by a psychologist but there is no recent report.  Dr A summarised the father’s medical records as indicating “that he has had longstanding problems with excessive drinking, gambling and controlling his anger.  The history provided by [the father] suggests that he suffers from Major Depression which has never been adequately treated.  He also has a past history of alcohol abuse and continues to drink excessive amounts of alcohol episodically.”[2]

   [2] Affidavit of Dr A filed 21 April 2015 at page 28

4. There is no evidence that the father has addressed any of the issues raised by Dr A or that he appreciates the need to address these issues.  The child has not spent time or communicated with the father since January 2014 and there are no proposals from the father.

Injunction sought by the mother and the Independent Children’s Lawyer

1. I am not satisfied under s 68B of the Act that it is appropriate or necessary to restrain the father by injunction from spending time or communicating with the child. There were no submissions specifically addressed to the application for an injunction by the mother or the Independent Children’s Lawyer.

2. In circumstances where there is no evidence of the father proposing to spend time with the child and there is no finding by the Court that the father poses an unacceptable risk to the child, there cannot be a conclusion that an injunction is necessary for the personal protection of the child.

Conclusion

1. A meaningful relationship between the child and the father does not appear to be possible at this time. This is due to the fact that there is no current relationship between them and that the child has expressed to Dr A and his counsellor that he is scared or terrified of the father.  The father has not made any proposals for a meaningful relationship with the child.  The unchallenged evidence of the child’s counsellor and Dr A, although untested, raise concerns about the conduct of the father.  However having regard to the attitude of the child it would also not be productive of any meaningful relationship with the father for the child to be in contact with the father at this time.

2. With the exception of the injunction sought, I am satisfied that it is appropriate and in the best interests of the child to make the parenting orders proposed by the mother and the Independent Children’s Lawyer in the absence of the father.  On the basis of all the evidence previously outlined, and in particular the medical records from the I Medical Centre, comprehensively outlined by Dr A, regarding the erratic behaviour of the father, and in the absence of any proposals by the father, together with the lack of contact between the father and the child, I am satisfied that it is in the best interests of the child to make an order that the child spend no time with the father.

3. I am satisfied having regard to all the evidence, that it is in the best interests of the child that sole parental responsibility be vested in the mother. This carries with it the responsibility for taking the child out of the Commonwealth of Australia for holidays without the need for the consent of the father or for the consent of the father for an application for a passport for the child.

1. There is no explanation for the father’s failure to participate in these proceedings but it is important that these parenting orders minimise the need for any further litigation and allow for the consolidation of the child’s settled circumstances with the mother which is in his best interests according to all the evidence.  It is also in the best interests of the child that his primary carer, the mother, have certainty and finality as to the arrangements for the child.

Costs

1. The general principle under s 117 of the Act is that each party bear their own costs. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which justify such an order.[3]  It is entirely a matter for the discretion of the Court.

   [3] Family Law Act 1975 (Cth) s 117.

2. Section 117(2A) of the Act mandates the factors to which the Court must have regard in considering whether to make an order for costs.

3. The costs of the mother and the Independent Children’s Lawyer were each fixed at $897 and reserved by Cronin J on 23 March 2016 for determination by the trial Judge.  The mother and the Independent Children’s Lawyer sought that the father pay those costs which arose from the adjournment of the trial at the request of the father.

4. There is no evidence of the financial circumstances of the father.  He has failed to pursue his Response and failed to file material pursuant to Court orders in circumstances where he has delayed proceedings and sought an adjournment of the trial specifically for that purpose.  His conduct has given rise to costs incurred by the mother and the Independent Children’s Lawyer.

5. I am satisfied that it is appropriate in these circumstances where there is no explanation for the failure to participate by the father, that an order for costs should be made. I propose to order that the father pay the costs of the mother and Independent Children’s Lawyer, incurred for the hearing on 23 March 2016, each fixed at $897.  Those costs should be paid within 14 days.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 3 June 2016.

Associate: 

Date:  3 June 2016