Gillcrest & Dunlap
[2022] FedCFamC1F 718
Federal Circuit and
Family Court of Australia (DIVISION 1)Gillcrest & Dunlap [2022] FedCFamC1F 718
File number(s): BRC 15553 of 2021 Judgment of: HOGAN J Date of judgment: 16 September 2022 Catchwords: FAMILY LAW – PARENTING – UNACCEPTABLE RISK OF HARM – Where the mother alleges that the child’s older sister has been sexually abused by the father – Where there are serious allegations of abusive behaviour by the father toward the child – Where the father did not participate in the proceedings – Where the matter proceeded in the father’s absence and on an undefended basis – Where the child is to live with the mother and have no contact with the father. Legislation: Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Allesch & Maunz (2000) 203 CLR 172
Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537
Kioa & West (1985) 159 CLR 550
Division: First Instance Number of paragraphs: 51 Date of hearing: 16 September 2022 Place: Brisbane Solicitor for the Applicant: Legal Aid Queensland Respondent: Litigant in person with no appearance Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 15553 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GILLCREST
Applicant
AND: MR DUNLAP
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
16 SEPTEMBER 2022
THE COURT ORDERS THAT GIVEN THE RESPONDENT’S FAILURE TO APPEAR
1.The final hearing of this matter shall proceed in the Respondent’s absence.
AND IT IS FURTHER ORDERED BY WAY OF FINAL ORDER THAT
2.The mother has leave nunc pro tunc to file the Initiating Application filed on 22 November 2021, notwithstanding the terms of the order 35 of the orders made 31 May 2017.
3.All previous parenting orders in relation to the child, Y, born in 2007, be discharged.
4.The child, Y, born in 2007, live with the mother.
5.The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in relation to the child.
6.The child shall not spend time or communicate directly with the father.
7.The father is restrained and an injunction is hereby granted restraining the father from:
(a)contacting, locating or approaching the child, Y, born in 2007; and
(b)from having someone else contact, locate or approach the child, Y, born in 2007.
8.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
AND IT IS FURTHER ORDERED THAT
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillcrest & Dunlap has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
The mother seeks that the Court make parenting orders for the child, Y (who was born in 2007) who is nearly 15 years of age. Whilst she initially also sought that parenting orders be made for Y’s older sister, X (who was born in 2006 and who is currently 15 years of age), the Court’s ability to make any orders in relation to X has been affected by the making of a child protection order under the Child Protection Act 1999 (Qld) by the Magistrates Court in B Town mid-2022 (the mid-2022 order).
This is because of s 69ZK of the Family Law Act 1975 (Cth)(the Act) which provides, in subsection (1), that a court having jurisdiction under the Act must not make an order under it in relation to a child who is under the care, however described, of a person under a child welfare law (as is the case now for X as a consequence of the mid-2022 order) unless the order is expressed to come into effect when X ceases to be under the care of a person under a child welfare law, or is made in proceedings in which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
Neither of those prerequisites are established in this case:
(a)the mother does not seek the making of an order expressed to come into effect at the cessation of the mid-2022 order (will continue in force until 11.59 pm in mid-2023) because of the age X will be when it ceases to have effect; and
(b)there is no written consent of a child welfare officer in relation to these proceedings.
The mother’s position in terms of the orders sought for Y is supported by the Independent Children's Lawyer.
Each of the mother and the Independent Children's Lawyer have signified their consent to an order being made in the terms expressed in the document which I have marked as Exhibit 1 in the proceedings.
Undefended Hearing
Before continuing further to consider whether such orders are in the child’s best interests, it is necessary that I deal with the fact of the father’s absence from the proceedings.
The legal representative who appeared for the mother and the Independent Children's Lawyer both submitted that the Court should continue to determine these current proceedings on a final basis in the father’s absence. He has not filed any material in the proceedings which were commenced by the mother when she filed an Initiating Application on 22 November 2021. He has not appeared on any of the occasions the proceedings have been before this Court – whether before a Registrar, Senior Registrar or Senior Judicial Registrar. I am informed by Ms C from the bar table, which information I accept, that the father did not participate at all in the child protection proceedings that were before the B Town Magistrates Court and which culminated when the mid-2022 order was made.
A number of orders have previously been made in this Court in relation to the service of the application by the mother on the father. On 20 May 2022, orders were made by a Judicial Registrar which afforded the mother the opportunity to serve the father with the specified documents by way of substituted service. The order made that day also ordered that the respondent (that is, the father) file and serve material by 4.00 pm on 24 June 2022.
I accept that, albeit late in a small way, the mother complied with the terms of the orders made on 20 May 2022 in relation to the manner by which she was to serve the father with the documents. I accept her evidence that she express posted documents to him in compliance with the 20 May 2022 order when she did so on 27 May 2022. I accept that she also emailed the documents to the required email address of his partner on 30 May 2022, albeit that this action was about three days later than was required by the terms of the 20 May 2022 order. I accept the contents of the affidavits of service that Ms C has read and relied upon in her client’s case.
I also note that on 22 July 2022, a Judicial Registrar made an order (later amended on 28 July 2022) for this matter to proceed by way of undefended hearing on 11 August 2022. The order made in July 2022 also required that the mother file and serve a case outline and serve a copy of that order on the respondent by way of email and post and file an affidavit of service evidencing compliance with its terms. I accept the evidence contained in the affidavit of service relied upon in the mother’s case to the effect that she express posted and emailed the documents required to be served in compliance with the order made 22 July 2022 and that she did so on 26 July 2022.
I also note that, on 11 August 2022, the Senior Judicial Registrar made further orders. The August 2022 orders included that the matter proceed by way of undefended hearing today. The Senior Judicial Registrar also ordered the applicant to serve a copy of the order he made on the respondent by way of email and registered post. I accept the evidence in the mother’s case to the effect that she express posted and emailed the necessary documents required by the order made 11 August 2022 to the father on 15 August 2022; I accept the contents of the affidavit of service filed in her case on 25 August 2022.
The fact that the father has not filed material as required by the order made on 20 May 2022 means that he is in default.[1] Consequently, pursuant to Rules 10.27(2) and (3), the Court may proceed to make orders finalising these proceedings provided that it is just to do so.
[1] See Rule 10.6(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I am satisfied by virtue of the contents of the various affidavits of service that the mother has complied with the obligation imposed upon her by the various orders made in relation to service. I am satisfied she has substantially complied with the orders that prescribed the manner by which the substituted service was to be effected on the father in relation to notice of these proceedings.
I note that the law requires that a court ensure a fair trial. As part of that, a court is required to ensure, and afford to parties in proceedings before it, procedural fairness.
In Kioa & West,[2] Mason J, as his Honour then was, said at page 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
[2] (1985) 159 CLR 550.
Further, in Allesch & Maunz,[3] Kirby J said, in particular at [35] insofar as the obligation of a court is concerned:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and to make submissions relevant to such a decision before it is made.
[3] (2000) 203 CLR 172.
Such authority (and other cases which have subsequently followed it) makes clear that it is the affording of an opportunity to appear and to participate in a proceeding that is the requirement cast upon any court.
Given the history I have outlined and the history of the proceedings since they were commenced by the mother when she filed the Initiating Application on 22 November 2021, I am satisfied that the father has been afforded procedural fairness and that he has been accorded every opportunity to participate in the proceedings: as already noted, he has not appeared on any of the occasions the matter has been before this Court; he has not participated at all in the Magistrates Court proceedings where the Department sought and obtained the mid-2022 order.
The fact of the father’s non-participation also easily establishes that there is no utility in further adjourning these proceedings to enable him to participate. Insofar as that is concerned, I note that the order made on 22 July 2022 set this matter for hearing on an undefended basis on 11 August 2022 and that, on that date, further orders were made for it to proceed by way of undefended hearing today: that is, in this proceeding, orders have been made on two occasions for the proceedings to proceed by way of undefended hearing. Such orders have not caused any response from the father either.
The father’s failure to engage with the proceedings and his obvious noncompliance with the terms of the order made 20 May 2022 – which required him to file and serve material by 4.00 pm on 24 June 2022 – has caused me to be easily persuaded that it is appropriate and just and certainly in Y’s best interests (particularly noting the content of the Child Impact Report, dated 13 May 2022,[4] which was prepared following interviews by Ms D with the mother and each of the children in early May of this year and which asserts, amongst other things, that further forensic interviews would be highly distressing to the child[5]) that I proceed to hear the matter in the father’s absence and on an undefended basis today.
[4] Exhibit 2.
[5] See paragraph 20 in particular.
It is for those reasons that I have proceeded to do so and to take the submissions made on behalf of the mother and the Independent Children's Lawyer.
I turn now to express the reasons which I intend to deliver in support of the parenting orders to be made.
Discussion
In these proceedings, being proceedings for a parenting order in relation to the child, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Act, make such parenting orders as I think proper. I must have regard to the objects of Part VII of the Act and the principles which underpin those. In deciding whether to make a parenting order, I must regard Y’s best interests as the paramount consideration.
The matters to which regard must be had in determining those parenting orders which are in any child’s best interests are prescribed by s 60CC of the Act. The requirement to consider each of those matters, though, does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[6] Any failure in these Reasons, delivered orally today on an ex tempore basis, to mention a consideration specifically does not mean that it has been overlooked in my deliberations about those orders which are in Y’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusion about such orders.
[6]See Banks & Banks (2015) FLC 93-637: albeit an interim decision, it seems to me that the principles expressed therein apply as much to final proceedings as they do to matters involving the resolution of proceedings on an interim basis.
I also note for the record that, prior to commencing the hearing today, I had the opportunity to read the material relied upon by the parties – noting, again, that there was no material filed by the father. I have already had the opportunity to read the Child Impact Report[7] and the Magellan Report.[8] Since the mention of the proceedings earlier this morning, I have also had the opportunity to read the updated material provided by the Department in response to a request made of it yesterday,[9] although I note that the content of the same is inaccurate in two respects: first, insofar as it is asserted that X is currently subject to interim custody with an application for a two year order currently before the B Town Children’s Court (an assertion which has clearly been overtaken by the mid-2022 order[10]) and, secondly, insofar as the assertion is made that Y is subject to an Intervention with Parental Agreement (IPA) because I accept the information provided from the bar table to the effect that that IPA has ceased to apply. Subject to those two corrections or updates, I have had regard the contents of Exhibit 5 also.
[7] Exhibit 2.
[8] Exhibit 4.
[9] Exhibit 5.
[10] Exhibit 3.
I accept generally the submissions made by the Independent Children's Lawyer in support of the orders sought. I also note that Ms C, who appeared on behalf of the mother, joined in and supported those submissions in advancing her client’s case.
It is sufficient, I think, in the circumstances currently before the Court to outline my acceptance of the contents of the Child Impact Report and the information contained within it as set out by Ms D following her interview of the mother and both of the children, X and Y. I note her recording of the circumstances in which the children have grown up. I take from paragraph 14 of her report the following:
[X] and [Y] grew up in a household of hostility, tension, fear, volatility and harm with the father. This formulated their sense of self and ability to trust their caregiver to meet their needs. The father’s abuse of them and witnessing their father being violent to his partner made them feel unsafe. They were both assaulted, felt powerless and insignificant. [X]’s mental health distress is a direct result of her experiences in the home.
Further, from paragraph 15:
Whilst it appears that [X] was targeted for sexual abuse, [Y] experienced physical and emotional abuse and neglect by her father.
And further from that paragraph, wherein Ms D expressed an opinion in relation to each of the children’s developmental stages, as follows:
It is a crucial developmental stage as young people are more likely to engage in high-risk behaviour and challenge their parents’ authority. [X] and [Y’s] childhood experiences places them at higher risk of engaging in such behaviours due to the violence, abuse and instability they have experienced in their life. These behaviours can include absconding from home, having unprotected sex, engaging in drug experimentation and disengaging from education. Due to their lack of experience of safety and security in their life, their survival mode of flight/fight/freeze becomes their baseline, and they have little tolerance for criticism or boundaries. This is likely the biggest challenge the mother faces having them in her primary care combined with her emotional vulnerabilities.
And further from paragraph 15:
[X] was admitted to hospital as a result of her mental health last year and she is likely to continue to suffer unless she engages with appropriate services to start her healing. However, she is distressed about not being able to see her siblings in her father’s house. She may continue to feel worried as she no longer is there to protect them from the father. This would be highly distressing, and the circumstances will hinder her ability and willingness to participate in her healing pathway. Whilst the mother did not report [Y] to display similar distressed behaviours, her emotional wellbeing remains a concern if she is internalising her experiences and unable to talk about her feelings or emotions.
As already noted, I have accepted the contents of Ms D’s report wherein she opines that:[11]
Given the history, further forensic interviews would be highly distressing to [X] and [Y].
[11] Paragraph 20, Child Impact Report dated 13 May 2022 prepared by Ms D.
I also note Ms D’s recommendation for orders which she asserts (following her interaction with the children and their mother) are in the children’s best interests: see those recommended in paragraphs 21 through 25 of the report.
Ms D’s suggestion that an Independent Children's Lawyer be appointed led to Ms E’s appointment and appearance before the Court today; as noted, she supported orders being made on a final basis to determine the current proceedings. Given Ms D’s assessment of the likely impact of any further forensic interviewing of these children, the course taken by the Independent Children's Lawyer is, it seems to me, entirely appropriate and child-focused.
I also note the contents of the Child Impact Report insofar as it provides a basis for very significant concerns about the impact on the children if they were required to have any communication or time or interaction with their father. Further, I accept the contents of the Magellan Reports (Exhibits 4 and 5, subject to the comments I have already made in relation to the correction of Exhibit 5). It is clear, particularly from Exhibit 4, that the father has –entirely consistently with his approach to these proceedings and the Children’s Court proceedings – determined not to engage with the Department.
It is also, in my view, entirely clear – at least on the material that I have before me – that there is an appropriate basis to conclude that Y would be at an unacceptable risk of suffering harm, either physical or psychological harm and/or, given the assertions made by X in relation to the father’s abuse of her, sexual harm, if she were to spend any time with her father in the future.
Whilst the maintenance of a meaningful relationship between the child and both of her parents is one of the primary considerations prescribed in the Family Law Act 1975 (Cth), the requirement to protect her from harm is to be afforded greater importance: it is an imperative.
It seems to me, on the material before me, that it would be difficult to identify any benefit that Y might now gain from being afforded the opportunity to have a meaningful relationship with her father. As I said, the imperative must be to protect her from harm.
Given the contents of the Child Impact Report, it is, I think, open for me to conclude, particularly in the absence of any evidence from the father to challenge the same, that it is much more likely than not that Y has been exposed to significant harm during the time that she was cared for by her father. There is nothing in anything I have read that would suggest that the imposition of supervision over her time with her father would be an appropriate protection. There is nothing to suggest that the father would participate in such a program or that it would be possible for such a program of supervision to be imposed over any time. It seems to me, on the material before me, that it is entirely unlikely that any supervised time would add any benefit to Y at this stage.
It is clear from the contents of the Child Impact Report that there is a highly conflictual parenting relationship or, in one sense, no co-parenting relationship. That is entirely unsurprising if the allegations made by the mother about the father’s behaviour toward her (as recorded in that report) are accepted. There is no evidence to suggest that there exists here any ability for these parents to communicate or make decisions jointly. I also note the mother’s evidence to the effect that previous communications between her household and the father’s household were, in essence, managed by his then partner and that there has not been any direct interaction between these parents for a very significant period of time. Again, given the information contained in the Child Impact Report insofar as it recounts the mother’s assertions of the father’s behaviour toward her, such a consequence is entirely expected and certainly not surprising.
The evidence before me is such that I consider that the presumption that it is in Y’s best interests that her parents have equal shared parental responsibility for the major long-term issues relating to her is rendered inapplicable. That is because I consider that I have reasonable grounds to believe that the father has engaged in family violence insofar as that term is defined in s 4AB of the Act to mean for the purpose of the Act “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.
When regard is had to Exhibits 2 and 4 in particular – and in the context of there being no evidence from the father to refute the assertions contained therein – it is clear that the father has engaged in family violence. I note that, in the absence of any evidence from the father to the contrary, I have proceeded to accept the mother’s accounts, as summarised by the author of the Child Impact Report and as contained in her sworn material, about the father’s behaviours towards her and the children.
A consequence of my conclusion that the presumption of equal shared parental responsibility does not apply in this case is that the power to make parenting orders pursuant to s 65D of the Act is at large, albeit subject always to Y’s best interests being the paramount consideration.[12]
[12] See Cox & Pedrana (2013) FLC 93-537.
On the evidence before me at this stage, noting the father’s failure to engage in the proceeding, it would, I think, be perverse to conclude other than that is in Y’s best interests for her mother to be accorded sole parental responsibility for the major long-term decisions relating to her. Similarly, it would, I think, be perverse to put in place a form of order that required the mother to attempt to seek the father’s input about such issues. I note such an order is not proposed in the minute that is Exhibit 1; I also note the difficulties the mother has had in having the father engage in these proceedings and that orders for substituted service were necessary. Those factors alone make it entirely clear, it seems to me, that any requirement for the mother to attempt, in the future, to seek the father’s input about any decision that she needs to make in relation to Y that falls within the purview of a major long-term issue would be simply a waste of time and certainly not something that I consider to be in Y’s best interests. There is no utility at all, and no benefit to Y, of such an order or that her mother be required to undertake such a process, given the history of this proceeding.
Given the material before the Court, I am easily satisfied that it is in Y’s best interests that orders be made substantially in terms of Exhibit 1.
It seems to me to be necessary, because of the terms of order 35 of the orders made by Judge Cassidy on 31 May 2017, to make an order nunc pro tunc affording the mother leave to commence the proceedings as she did by Initiating Application filed 22 November 2021.
It is also appropriate that I make an order that all previous parenting orders, insofar as they relate to the child, Y, be discharged.
It is appropriate and in Y’s best interests, for the reasons I have already expressed, that an order is made for her to live with her mother and that her mother be accorded sole parental responsibility for the major long-term issues relating to her.
I am easily satisfied on the material before me that it is in Y’s best interests that she not spend time and not communicate directly with her father. Consequently, her best interests will be met by an order that requires that she not spend time with him or communicate directly with him.
The mother, supported by the Independent Children's Lawyer, also seeks an order in the nature of a restraint prohibiting the father from contacting, locating or approaching Y or having someone else contact, locate or approach her. Pursuant to s 68(1) of the Act, the Court may make such order or grant such injunction as it considers appropriate for the welfare of a child. Given the contents of the Child Impact Report, the Magellan Report[13] and the mother’s evidence, I am easily satisfied that orders restraining the father in the manner proposed by the mother are orders which are appropriate for Y’s welfare.
[13] Exhibit 4.
Consequently, it seems appropriate and certainly in Y’s best interests that an order be made in the following terms: that the father is restrained, and an injunction is hereby granted restraining him, from:
(a)contacting, locating or approaching the child, Y, born in 2007; and
(b)from having someone else contact, locate or approach the child, Y, born in 2007.
It is also, I think, appropriate to record the view that any subsequent application by the father for parenting orders in relation to Y would need to address, as a minimum, each of those matters or allegations particularised in the Magellan Report dated 19 April 2022[14] and the Child Impact Report dated 13 May 2022[15] before this child would be required to be placed in a situation where her parents were again engaged in litigation about those parenting orders which are in her best interests.
[14] Exhibit 4.
[15] Exhibit 2.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 September 2022
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