Greig & Garratt

[2019] FamCA 438

FAMILY COURT OF AUSTRALIA

GREIG & GARRATT AND ANOR [2019] FamCA 438

FAMILY LAW – PARENTING – Final parenting proceedings – Best interests of the child – Where issue for determination child’s time with the father and paternal grandmother if any – Where child has no relationship with the father or the paternal grandmother – Where father is currently incarcerated – Where allegations of family violence – Where the father and paternal grandmother seeks orders facilitating the child spend time with them – Where consideration of applicable principles – Where the family consultant strongly supports no time with either the father or the paternal grandmother – Where orders made by consent that mother have sole parental responsibility and child to live with the mother – Where the father and paternal grandmother to have no time with the child – Where appropriate that the mother be able to change the child’s surname – where appropriate that the mother be able to obtain a passport for the child without the consent of the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 65Y, 68B
Family Law Rules 2004 (Cth) r 11.02(2)(c)

Aldridge & Keaton [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Denyan & Beattie [2011] FamCA 155
Donnell & Dovey [2010] FamCAFC 15
Fooks v McCarthy [1993] FamCA 117; (1994) FLC 92-450
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394

APPLICANT: Ms Greig

FIRST RESPONDENT: Ms Garratt

SECOND RESPONDENT: Mr B Garratt

INDEPENDENT CHILDREN’S LAWYER: Ms Rutkowska

FILE NUMBER: PAC 3922 of 2016

DATE DELIVERED: 4 July 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 3 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Campbell of Bowral Legal

FIRST RESPONDENT – SELF-REPRESENTED LITIGANT: Ms Garratt

SOLICITOR FOR THE SECOND RESPONDENT: Ms Patricia J O'Shane Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Breeze

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mansour of Ark Law Lawyers

By Consent, Orders Made on 3 April 2019

1. That the mother Ms Greig have sole parental responsibility for the child Y born in 2008.

2. That the said child live with the mother.

Further ordered

1. That the child spend no time with the father Mr B Garratt.

2. That the child spend no time with the paternal grandmother Ms Garratt.

3. That pursuant to Section 68B of the Family Law Act 1975 (Cth) the father, Mr B Garratt, be and is hereby restrained by injunction from:

   (a)Approaching the child or attending upon or being within 100 metres of the child’s place of residence or employment, school or extracurricular activity location;

   (b)Contacting or communicating or attempting to communicate with the child by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, Skype, Instagram or other social media;

   (c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee, including by engaging third parties; and

   (d)Taking the child into his care or having the child in his care.

4. That pursuant to Section 68B of the Family Law Act 1975 (Cth) the paternal grandmother, Ms Garratt be and is hereby restrained by injunction from:

   (f)Approaching the child or attending upon or being within 100 metres of the child’s place of residence or employment, school or extracurricular activity location;

   (g)Contacting or communicating or attempting to communicate with the child by any means, including by a third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, Skype, Instagram or other social media;

   (h)Removing or attempting to remove the child from the care of the mother or the mother’s nominee, including by engaging third parties; and

   (i)Taking the child into her care or having the child in her care.

5. IT IS NOTED that the above Orders 5 and 6 are made pursuant to Section 68B of the Family Law Act 1975 (Cth) are injunctions made for the personal protection of the child to which Section 68C would apply and accordingly any police officer made aware of these Orders and who on reasonable grounds believes that such Orders and injunctions have been breached by the father and/ or paternal grandmother, by either harassing, molesting, talking to or physically harming or threatening to harm the child, may arrest the father and/ or paternal grandmother without warrant.

6. That the mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that the child registered as Y born in 2008 be now registered as [Y Greig].

7. The mother may apply for an Australian travel document (passport) the child Y born in 2008 without first obtaining the consent of the father.

8. Pursuant to Section 65Y of the Family Law Act 1975 (Cth), the mother shall be and is hereby authorised and permitted to remove the child Y (or as he may otherwise be known) born in 2008, from the Commonwealth of Australia at such times, for such periods and for the purpose of travelling to such destinations as she may desire.

9. That all outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.

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

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 Greig & Garratt and Anor 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 PARRAMATTA

FILE NUMBER: PAC 3922  of 2016

Ms Greig

Applicant

And

Ms Garratt

First Respondent

And

Mr B Garratt

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant mother against the second respondent father and first respondent paternal grandmother in August 2016 seeking final parenting orders in relation to the child Y born in 2008.

2. In her (Amended) Initiating Application filed 21 September 2018 the mother sought final parenting orders, in summary, as follows:

   (1)That the second respondent father and first respondent paternal grandmother be restrained by injunction from approaching or contacting the mother or child;

   (2)That the father and paternal grandmother be restrained by injunction from approaching or entering: the mother and child’s home, the mother’s place of work, the maternal grandmother’s home, the maternal aunt’s place of residence, the child’s school and the child’s carer’s home;

   (3)That the mother have sole parental responsibility for the child;

   (4)That the child live with the mother;

   (5)That the child have no contact with the father or paternal grandmother;

   (6)That the mother be at liberty to change the name of the child; and

   (7)That the mother be at liberty to obtain a passport and travel internationally without the consent of the father.

3. At trial the mother relied upon the following documents:

   a)Her (Amended) Initiating Application filed 21 September 2018;

   b)Her consolidated trial affidavit filed 22 October 2018; and

   c)Affidavit of Mr D also filed the 22 October 2018.

4. Leave was granted for the mother to rely upon an updating affidavit filed 2 April 2019.

5. The father, in a Minute of Order tendered on the day of the hearing on 3 April 2019, sought orders that the child live with the mother, that the mother have sole parental responsibility for the child and that he have contact with the child by telephone and/or video link twice a week by arrangement with the mother. The father filed no affidavit material in compliance with trial directions notwithstanding that he was legally represented.

6. The paternal grandmother stated her position as seeking time with the child, however, also did not file any affidavit evidence in compliance with trial directions to support her contentions.

Context

1. The mother is currently aged 31. She is employed in an administrative role. The father is 41 years old and has been incarcerated since August 2011 for serious drug offences.

2. Following his incarceration, the mother allowed the child to visit the father in gaol for some time and allowed the child to speak to the father over the phone regularly up until a point in 2015 where she ceased contact and communication. Since this time, there has been no communication between the child and the father.

3. On 3 April 2019, the day of the hearing, the parties consented to orders that the mother have sole parental responsibility for the child and that the child live with the mother.

4. The remaining issues for determination are the nature and extent of any communication the child is to have with the father, whether the child should spend any time with the paternal grandmother, whether the mother should be at liberty to change the child’s name, whether the mother be at liberty to obtain a passport for the child and whether any injunctive orders should be made for the protection of the mother and the child.

The proceedings

1. On 22 August 2016 the mother commenced proceedings.

2. On 27 February 2017 the parties attended upon a family consultant for the purpose of participating in the Child Responsive Program.

3. On 11 April 2017, an order was made appointing an Independent Children’s Lawyer (“ICL”) to represent the child in the proceedings.

4. On 30 January 2018 the parties attended upon a family consultant for the preparation of a family report.

5. On 20 August 2018, the following interim orders, in summary, were made with the consent of the parties:

   (1)That the child spend no time with the father or paternal grandmother;

   (2)That pursuant section 68B of the Family Law Act 1975 (Cth) the father and paternal grandmother be retrained by injunction from:

   (a)approaching the child or attending upon or being within 100 metres of the child’s home or school;

   (b)contacting or attempting to communicate with the child by any means including via third parties;

   (c)taking the child into his care or having the child in his care; and

   (d)it is noted that the above orders are orders for the personal protection of the child and pursuant to section 68C of the Family Law Act 1975 (Cth) the police have a power of arrest, without warrant.

6. On 20 August 2018 the Court also made trial directions. Both the respondents failed to comply with the trial directions to file a consolidated affidavit and an outline of case.

7. The matter was heard on an undefended basis on 3 April 2019. The paternal grandmother was present as was the father by phone from custody. He was legally represented.

Procedural Fairness

1. The father who was in custody during the proceedings was legally represented from 7 April 2017. It also appears that the solicitor for the father acted for the paternal grandmother for a significant period throughout the course of the proceedings and it is unclear when she ceased acting for her but did not appear on her behalf at the final hearing.

2. The paternal grandmother and father both did not comply with the trial directions to file a consolidated primary affidavit and an outline of case.

3. The orders of 20 August 2018 specifically provided that a party may not rely on any affidavit filed other than in compliance with the orders and in the event of non-compliance with the filing directions the Court may at its discretion deal with the matter on an undefended basis.

4. Further, the applicant’s solicitor drew attention to the respondent solicitor’s requirement to file a case outline in an email which, including service of the applicant’s case outline and chronology, indicated that they were looking forward to the receipt of the respondent’s case outline by close of business that day in accordance with the trial directions.

5. Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

6. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

7. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.

8. Such is the case currently before the Court for consideration.

9. In circumstances where the father was legally represented yet still failed to comply with trial directions, and where the paternal grandmother who had previously been represented also had failed to file any documents in compliance with trial directions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

10. The Court then considered whether the father’s solicitor and the self-represented paternal grandmother could participate in the proceedings by being permitted to cross examine the mother. The Court permitted both respondents to cross examine the mother.

The Evidence

1. The parties commenced a relationship in October 2004 when the mother was only 16 years old and the father 26 years old. The father was incarcerated for a period of eight months during the parties’ relationship from January 2005 until September 2005. There was a short period where the mother lived with the paternal grandmother while the father was incarcerated.

2. The father has three children from previous relationships, it seems two of which the father has regular contact with and the other does not wish to have contact with him.

3. The child of the relationship was born in 2008.

4. In April 2008, an anonymous report was made to the Department of Family and Community Services (“Community Services”) regarding the child’s risk of physical harm in the father’s care. The report related to the father playing with the child in an age inappropriate way which resulted in the baby hitting its head (Exhibit “O”).

5. The parties’ relationship ended on 25 October 2009.

6. Following separation, the child lived with the mother and spent time with the father on an ad hoc basis but usually for only a few hours each month.

7. In 2010, the child was diagnosed with a disease requiring intravenous therapy. In 2013 the child was put on a treatment programme.

8. In February 2015, the child was diagnosed with Oppositional Defiance Disorder.

9. In March 2015 the child was put on medication for what his treating paediatrician describes as a very significant anxiety disorder. Associated with this diagnosis, the child has had separation issues from his mother and associated obsessional symptoms.

10. During the father’s latest and current incarceration, the mother allowed the child to visit the father in gaol on four occasions up until some point in 2015 and also facilitated communication by telephone between the father and child once a week. The mother determined after the child’s final visit with the father that it was not in the child’s best interests to continue visiting the father in prison, as during the visits, the father would press the child for information about whether the mother was in any new relationships, encourage the child to be violent and misbehave and encourage the child to stop taking his prescribed medication.  

11. In August 2015, the mother cut off communication between the father and the child after receiving up to ten calls a day from the father contrary to her wishes. The mother’s number was removed from the inmate call list (Exhibit “I”). Following the mother cutting off contact, staff at the correctional centre unknowingly at the father’s request contacted the mother in relation to the father seeing the child (Exhibit “R”).

12. The mother also cut off communication with the paternal grandmother at some point during 2015 after receiving numerous harassing calls from her.

13. On 20 May 2016, the child was approached by three men in the playground at his out of school care. A teacher at this care service informed the mother that the men left as she went to approach them. The child claimed that one of the men was his uncle “Mr E” however the child does not have such an uncle and at the time both his uncles were incarcerated. Three days later, the child’s out of school care administration building was broken into and it looked as if the offenders had attempted to break into a cabinet which contained the student’s records including home addresses (Exhibit “F”).

14. On 22 August 2016, the mother commenced proceedings after being contacted by the paternal grandmother threatening to commence proceedings to spend time with her grandchild. Relevantly, the paternal grandmother had already commenced proceedings in relation to the father’s brother’s children.

15. In February 2017 the mother commenced a relationship with her current partner with whom she currently cohabitates. The child has a good relationship with her new partner and occasionally refers to him as “dad”.

The father and paternal family’s criminal history (Exhibit “K”)

1. The father has an extensive well documented criminal history.

2. In 1997, the father was convicted of several offences including driving offences, obtaining benefit by deception, offensive language near a school, assaulting a police officer, larceny and destroying property. In 1999, the father was convicted of shoplifting. In 2000, the father was convicted of obtaining money by deception.

3. In 2001, the father was convicted of common assault, destroying property, contravening an Apprehended Domestic Violence Order (“ADVO”), mid-range PCA and driving with a suspended licence. In 2003, the father was again convicted of common assault.

4. In 2006, the father was convicted of further driving offences including dangerous driving. In September 2011, the father was again convicted of mid-range PCA and speeding.

5. In 2008 the father was convicted of possessing housebreaking implements.

6. In March 2010, the father was again convicted of destroying property.

7. In December 2010 the father was charged with supplying a prohibited drug, using false instruments and possessing a precursor intended to be used in drug manufacture or production. Most significantly, in August 2011 the father was charged with three counts of supplying a prohibited drug in a large commercial quantity and was subsequently convicted and sentenced to 17 years imprisonment with a non-parole period of 11 years (Exhibit “R”). He subsequently appealed this sentence and received a substituted sentence such that he will be eligible for supervised parole on 2 August 2019.

1. In September 2016 the father committed a correctional centre offence of possession of a prohibited substance (Exhibit “I”).

2. At some point in 2018, the father was allowed work release leave. The father breached the conditions of his work release and as such his leave was revoked and he was moved to a higher security classification (Exhibit “L”).

3. Police records reveal that the father has been in the police spotlight prior to the parties’ relationship in relation to allegations of violent and threatening behaviour made by previous partners of the father. In one incident the father drove his car into the building of a licensed premises of which his ex-partner was the licensee while patrons were inside. The police record reveals a series of phone calls between various witnesses and the father in which the witnesses report that the father threatened to kill his previous partners and harm his ex-partners’ children (Exhibit “R”).

4. Several members of the father’s immediate family also have extensive criminal histories. Two of the father’s brothers have equally as colourful criminal histories to that of the father, both of which include significant driving offences, possession and supply of prohibited substances and larceny.

5. The father’s brother Mr F was also arrested in August 2011 and convicted of drug manufacture and supply and drug possession. He was originally sentenced to 16 years and six months imprisonment with a non-parole period of 10 years and six months, however, also received a substituted sentence on appeal and has since been released from gaol (Exhibit “R”).

6. The father’s currently 21 year old child from a previous relationship, who was predominantly raised by the paternal family, already has a concerning criminal history including offences from when he was a minor. He was most recently sentenced to imprisonment for four years and four months after pleading guilty to aggravated sexual intercourse with a child aged 14 to 16 and procuring a child over 14 for illegal sexual activity.

7. The extensive criminal involvement of several members of the paternal family supports the mother’s position that there is an anti-social culture within the family such that the entire paternal family poses an unacceptable risk of harm to the child. While it seems the paternal grandmother has no criminal record herself, the mother asserts that the paternal grandmother was aware of her son’s criminal involvement and previously had received large cash gifts from the proceeds of her sons’ criminal activity. The mother gave oral evidence that she did not want the paternal grandmother to spend time with the child as she had concerns as to how the paternal grandmother had raised her children and grandchild and did not want her child exposed to the circle of the criminal activity.

The father’s perpetration of violence and other conduct

1. The father has an extensive history of drug and alcohol abuse. He has previously admitted that his alcohol use was a problem because of the amount he consumes and because he feels his behaviour can become more aggressive when he is drinking (Exhibit “L”).

2. The father has previously had a significant problem with gambling. This resulted in the mother taking out a number of loans to pay household bills and expenses which saw her accumulate a debt of approximately $20,000.00. The father’s gambling addiction exacerbated his aggressive behaviour, such that on one occasion in 2009, the father threw a remote and smashed a television screen in front of the mother and child after losing a bet on a greyhound. The father has admitted that his issues with gambling have also been a contributing factor in his involvement in criminal activity (Exhibit “L”).

3. The parties’ relationship was characterised by significant family violence perpetrated by the father. The mother did not report the significant physical abuse perpetrated by the father to the police nor did she apply for an ADVO as she feared this would exacerbate the violence.

4. In November 2005, the father was abusing the maternal grandmother over the phone for not acting as a guarantor for a car loan he wanted. When the mother tried to take the phone from him, the father grabbed the mother by the back of her head and threw her into a fridge.

5. On 14 May 2006, the parties were driving to visit the maternal family when the father, as the passenger, unexpectedly pulled the handbrake up to stop the car. He then got out of the car and pulled the mother out by the hair and then got back in the car and drove away. He later returned and demanded the mother get back in the car, drove recklessly while yelling at the mother and threatened the mother saying “the only way your mother is ever going to see you again is in a body bag.”

6. In June 2006, the father grabbed the mother by the throat and held her up against a wall while digging a set of keys into her throat. The father then called the maternal grandmother and said that she needed to come and collect her daughter before he killed her. The father subsequently went to a local club to go drinking and returned when members of the mother’s family had just arrived to pick the mother up. As the family was driving away the father began punching the windows of the car.

7. In July 2006, the father, while the mother was not completely and securely in the car, drove the mother’s car in such a way as to cause the open passenger door to snap off by driving it into a tree. The father continued to drive erratically in an attempt to cause the mother to fall out of the car. 

8. In early 2007 following a verbal argument between the parties the father grabbed the mother by the hair and dragged her into a bedroom where he pushed the mother onto a bed and held her down by her throat while pushing her face into the bed.

9. In August 2007, again following a verbal argument between the parties, the father turned up at the mother’s workplace and did burnouts in the carpark.

10. In November 2007 following another argument surrounding the father returning a pram bought by the mother for the parties’ expected child, the father grabbed the mother by the face, pushed her onto a bed and kicked the mother between the legs while pregnant.

11. In February 2008, when the mother was eight months pregnant with the child, the father grabbed her by the hair and pushing her face into a car window. He then punched the mother in the face. The mother gave oral evidence that she had a black eye at the time she gave birth to the child.

12. In December 2009, after the mother had ended the relationship, she took the child to see the father so that the father could give the child a Christmas present.  Upon meeting the father pushed the mother to the ground and hit her in the face and head until the father’s brother pulled the father off her. The child witnessed this occur. The brother inquired as to whether the mother would call the police and asserting that they were both wanted by the police at the time.

13. The father also perpetrated significant emotional abuse against the mother during the parties’ relationship. The father would generally address the mother as “fucking idiot” and would frequently make belittling comments to the effect “you’re disgusting. If I don’t want you nobody ever will.”

The Child Responsive Program

1. On 27 February 2017 the parties attended upon a family consultant as part of the Child Responsive Program. The father attended this appointment via telephone from custody.

2. In her report dated 7 March 2017, the family consultant made the following comments about the child:

   It appears that [Y] would like to have a father in his life and he presented as sad that he does not have this at present. [Y] appears curious about [the father] but also somewhat wary. Overall, the impression given was that [Y] might like to have some contact with [the father] so that he can evaluate whether he wishes to have a relationship with him.

3. As to the father, the family consultant opined:

   While it is understandable that [Y] would want to have a relationship with [the father], serious allegations have been made by [the mother] that may indicate that [the father] is not capable of engaging with [Y] in a positive manner without exposing him to emotional manipulation and poor role modelling. In addition, she maintained that [the father] is prone to irritability and coercive controlling violence, as well as antisocial behaviour, and therefore [Y] would be at unacceptable risk in his care or by coming into contact with the paternal family. Another consideration is whether it is reasonable that [the mother] would suffer significant anxiety, which may affect her mental health and therefore her parenting capacity.

4. The family consultant formed the view that given the serious nature of the allegations made, it is not recommended that Y spend time or communicate with any member of the paternal family until the Court determined whether the child is at unacceptable risk of harm.

The Family Report

1. Pursuant to orders made 18 July 2017, the parties subsequently attended upon a family consultant for the preparation of a family report. The father again attended this appointment via telephone.

2. In her report dated 6 June 2018, the family consultant made the following comment regarding the child:

   It is understandable that [Y] would be curious and desirous of a relationship with his father and the paternal family…Given [Y]’s positive attitude towards commencing contact with [the father] and [the paternal grandmother], he is likely to feel significant disappointment and possibly distressed if he is not given the opportunity to pursue this relationship. However the benefits to [Y] developing a relationship with [the father] and the paternal family must be weighed against the potential harm that may come to [Y] from a deterioration in [the mother’s] mental health and functioning, if she was required to communicate or cooperate with [the father] and/or [the paternal grandmother] to facilitate [Y] spending time with them. 

3. As to the father’s alleged perpetration of violence the family consultant opined:

   [The mother’s] account of [the father’s] alleged family violence towards her is consistent with coercive controlling family violence. It may be a matter for the Court to determine the veracity of [the mother’s] account. Coercive controlling violence is a pattern of behaviour with the intent to induce varying degrees of fear and submission in a partner and/ or children by threats to harm or actual harm… Perpetrators of coercive controlling violence may display possessiveness and jealousy. The perpetrator’s behaviour may escalate over time, especially in response to the perceived threat of loss of control or abandonment by the partner.

   …

   [The father] denied that he had been violent towards [the mother]. If the Court finds veracity to [the mother’s] claims, [the father’s] ongoing denial of this violence may indicate that [Y] may be at risk of harm from poor parenting practices and/or intimidation from [the father]. This is because a willingness to take responsibility for one’s past violence and its impact on the victim is an important predictor of reduced likelihood that such violence or coercion would occur in the future. If the Court was to make such a finding, [the mother’s] claim to be fearful of [the father] would be understandable and her reluctance to support [Y] having a relationship with him could be considered protective.

4. As to the mother the family consultant said:

   [Y] appears to have a very good relationship with [the mother] and he indicated that she meets his practical and emotional needs. It does not appear to be in dispute that [the mother] provides good day-to-day care to [Y] and, in particular, has been proactive in ensuring that his medical conditions are well managed.

5. The family consultant concluded:

   Based on the information available in this assessment, and the fact that [the father’s] claim to be rehabilitated is untested, it could not be recommended that [Y] spend time with [the father] or [the paternal grandmother] at this time. It may be the case that, after [the father] is released from gaol and has demonstrated several years when he has not further engaged in antisocial behaviour and illicit substance, [Y] may benefit from developing a relationship with him. 

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In the present matter the Court is well satisfied that there has been family violence perpetrated by the father. The father has consented appropriately to the mother having sole parental responsibility for the child. In any event the presumption would not apply.

9. Section 65C of the Act provides that persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders. The paternal grandmother, therefore, is able to apply for parenting orders pursuant to subparagraph (ba) of that section.

10. This matter thus involves a non-parent. The Full Court in Donnell & Dovey [2010] FamCAFC 15 and Aldridge & Keaton [2009] FamCAFC 229 referred to the decision of Moore J in Potts & Bims [2007] FamCA 394 and said the settled legislative pathway followed to determine the best interests of a child is not the prescribed pathway in respect of determining best interests in proceedings between a parent and non-parent. The Full Court accepted it may be necessary to address some of those legal principles in determining the outcome.

11. Consideration of the paternal grandmother as a non-parent in respect of the best interests considerations can be facilitated by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a “catch all provision”. It is, therefore, appropriate to apply the relevant considerations in respect of the paternal grandmother by way of application of s 60CC(3)(m).

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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 considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The Full Court in McCall & Clark (supra) said at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

4. The mother has been the primary carer for the child at all times since his birth. Following separation and prior to his incarceration, the father only spent a minimal amount of time with his child which generally only occurred approximately once a month. Following his incarceration, the child only spent time with the father on four occasions, and has had no time or communication with the father since 2015.

5. There is no dispute that the child should remain in the mother’s primary care and the question is whether orders should be made to allow telephone/ video communication between the father and child in order to craft a relationship between the child and father.

6. A significant issue at large in these proceedings is the psychological impact that a relationship between the child and father would have on the mother, who has been subject to significant family violence at the hands of the father, as the primary caregiver with the consequences of any psychological detriment flowing onto the child.

7. The mother has mental health issues which she generally manages well but has previously experienced episodes triggered by these proceedings and concerns about she and the child coming contact with the father (Exhibit “F”). The mother’s oral evidence is that an order requiring her to communicate with the father would cause her significant anxiety that she would not be able to shield from the child. The mother has similar anxieties as to any contact with the paternal grandmother.

8. The family consultant opined that the benefits to the child in developing a relationship with the father must be weighed against the potential harm that may come to the child from a deterioration in the mother’s mental health and functioning that it appears would inevitably come with orders requiring her to communicate with the father and or the paternal grandmother.

Section 60CC(2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. There is a plethora of evidence which demonstrates the father has a propensity to violence. The father has an extensive criminal history dating back to 1997 as outlined earlier in these reasons for judgment.

1. The mother’s evidence as to the father’s perpetration of violence during the relationship is wholly accepted.

2. It is clear that there were times that the child was exposed to the father’s perpetration of physical violence towards the mother. The child is also likely to have been exposed the verbal abuse perpetrated by the father over the phone on the occasions the mother or child communicated with the father.

3. The ICL supports the mother’s position that the father and paternal grandmother should have no time with the child and that injunctive orders should be made to protect the child and the mother.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   b)        The nature of the relationship of the child with:

   i) Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

   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;

   f)The capacity of:

   i)Each of the child's parents; and

   ii)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;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   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 following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   (iii)Any evidence admitted in proceedings for the order;

   (iv)Any findings made by the court in, or in proceedings for, the order;

   (v)Any other relevant matter;

   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; and

   m)Any other fact or circumstance that the court thinks is relevant. 

2. The paternal grandmother indicated on a Response filed with the Court that she was of Aboriginal origin, however, curiously indicated that the father is not of such origin. The father also did not indicate that he was of Aboriginal origin. It is, therefore, unclear whether the child is an Aboriginal child, however, as no reference is made to nor is any evidence adduced as to aboriginality or aboriginal culture, this is not a relevant consideration in these proceedings.

3. Many of the other considerations above are relevant in the context of the background matters discussed above.

4. The child historically expressed the view to the family consultant on the two occasions he met with her that he would like to see the father. As a result, the family consultant indicated in her report dated 6 June 2018 that the child would likely experience significant disappointment and possibly become distressed if he were not given the opportunity to rebuild a relationship with his father. However, the ICL made submissions at hearing that from meeting with the child one week prior to the court event they had formed the view that the level of distress referred to by the family consultant was not exhibited by the child. This is also consistent with the mother’s oral evidence that the child had stressed to her that he no longer wanted to see the father or paternal grandmother.

5. The family consultant opined that the child has a very good relationship with his mother and that she meets all his practical and emotional needs. The mother does not drink heavily or regularly and does not use drugs (Exhibit “F”). She does suffer with mental health issues however manages this by seeing a psychologist and has taken medication in the past, and it appears only experiences mental health “episodes” when confronted with the prospect of coming into communication or contact with the father (Exhibit “F”).

6. The child has spent no time with the father since 2015. The child has not spent time with the paternal grandmother since 2011 but for the time spent with the child during observation as part of the preparation of the family report. The child reported to the family consultant that he has no memories of the paternal grandmother.

7. During the parties’ relationship, the father made limited attempts to spend time with the child, and the mother was responsible for the child’s care and long term decision making.

8. Following incarceration it is apparent that the father has been unable to spend time with the child in prison without the mother facilitating such time and has been unable to communicate with the child following the mother cutting off communication. It seems, however, that the father used the limited time he did spend or communicate with the child to question the child as to the mother’s circumstances.

9. The mother has been wholly responsible for the child financially including the child’s various medical expenses. Despite historically having approached the father for financial support in relation to medical costs, the father has not provided the mother with any financial support nor does he pay child support at present.

10. The orders sought by the mother would see the maintenance of the status quo such that the child would spend no time with the father as has been the case for some years.

11. The orders sought by the father would see a change in this position such that the child have telephone or video communication with the child twice a week. The child’s medical records demonstrate that the child has severe anxiety, Obsessive Compulsive Disorder and oppositional behaviour, which escalated at the time proceedings were commenced in relation to the child’s time with the paternal grandmother and father (Exhibit “J”).  The child’s treating psychiatrist of approximately six years has recommended that the child have no contact with the father or paternal grandmother:

    It is evident that [the child] would have no emotional attachment to the paternal family as he has had no opportunity to establish same. Given the fact that [the child] continues to receive treatment for a severe anxiety disorder, which has occurred in the context of other severe medical and psychological problems of his early childhood, it is clear that it would be detrimental to his wellbeing to have to embark on a new relationship with adults who are in fact strangers to him.

12. The major concern in relation to the child’s time with the paternal grandmother is that notwithstanding any order of this Court she will bring the child into contact with the father. A further concern that comes with this is that the father will when released abduct the child. For this reason and as the child has most recently expressed the view that he does not wish to have a relationship with the paternal grandmother, it is not in the child’s best interests to spend time with the paternal grandmother and the protective injunctions sought by the mother as against the paternal grandmother and father are in the best interests of the child.

13. It would seem that the father’s time in prison has not served a rehabilitative purpose. The father has continued to engage in antisocial behaviour during his sentence including breaking day release conditions and possession of prohibited substances leading to disciplinary sanctions including the loss of day leave and other institutional privileges and at times transfers into facilities with a higher level of security (Exhibit “L”). This supports a concern that on his release he may engage in antisocial behaviour or use illicit substances. Such would present as a risk to the mother and the child should there be contact. It is appropriate that injunctive orders protective of the mother and child be made as sought.

14. In support of an order seeking to change the child’s surname, the mother gave oral evidence that the child is aware that the mother intends to change his name and that the child would be content with this course, despite currently being known at school by his father’s surname and using it otherwise.

15. As Austin J observed in Denyan & Beattie [2011] FamCA 155 at [129]:

    “Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) FLC 90-510). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many conceivable consideration (see Flanagan v Handcock [2000] FamCA 150; (2001) FLC 93-074 at [19-38]; M v B [2001] FamCA 894 at [35-37] Marriage of Mahony & McKenzie [1993] FamCA 78; (1993) FLC 92-408).

16. In Fooks v McCarthy [1993] FamCA 117; (1994) FLC 92-450 Warnick J said at [14]:

    There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.

17. The factors frequently considered in determining whether there should be any change to a child's name include:

    a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;

    b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;

    c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;

    d)The effect of frequent or random changes of name;

    e)The contact that the non-custodial parent has had and is likely to have in the future with the child;

    f)The degree of identification that the child or children have with their non-custodial parent; and

    g)The degree of identification which the child or children have with the parent with whom they live.

18. A consideration of the section 60CC factors above in the context of the background of this matter including the factors identified above and the reality of there being no relationship between the father and child are indicative of an order being made in the best interests of the child as sought by the mother.

19. Otherwise, the mother seeks an order that she be permitted to obtain a passport for the child. The holding of sole parental responsibility by one parent does not entitle such parent to obtain a passport for a child absent the consent of the other parent.  In the circumstances of this matter where the mother seeks no contact or communication with the father, it is proper and in the child’s best interests that the mother be permitted to obtain a passport for the child without the necessity of the father’s consent.

20. All of the aforementioned relevant considerations are indicative of orders being made in the best interests of the child as sought by the mother.

21. Orders will accordingly be made as set out at the forefront of these reasons for judgment.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 July 2019.

Associate:

Date:  4 July 2019