HADEN & LACEY

[2015] FamCA 416

FAMILY COURT OF AUSTRALIA

HADEN & LACEY [2015] FamCA 416

FAMILY LAW – PRACTICE & PROCEDURE – Procedural Fairness – Where the father’s decision not to participate in the proceedings and to cease his interaction with the children is a voluntary one – Where it was fair and proper the litigation proceed in his absence

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the father currently evinces an intention to indefinitely terminate his interaction with the children – Where there is a need to protect the children against the risk of harm through their subjection to sexual abuse in the father’s home, which risk the father blithely rejects – Children to live with the mother – Mother to have sole parental responsibility – Where whether the children spend time or communicate with the father shall be determined by her as an incident of her sole parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 61DA, 62B, 65DA, 65DAA, 65DAC

APPLICANT: Ms Haden

RESPONDENT: Mr Lacey

INDEPENDENT CHILDREN’S LAWYER: Foat Associates Lawyers

FILE NUMBER: NCC 2794 of 2010

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Adams, Adams & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Roberts, Foat Associates Lawyers

Orders

1. All former parenting orders relating to the following children (“the children”) are discharged:

   a.B, born … 2004; and

   b.C, born … 2007.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Within 7 days hereof the mother shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

1. Each party shall forthwith inform the other and keep the other informed in writing of their respective current residential address and mobile telephone number.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

2. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

3. Any and all outstanding applications are dismissed.

NOTATION

A)These orders intentionally make no provision for the children to spend time or communicate with the father. Whether and, if so, how the children spend time or communicate with the father shall be determined by the mother as an incident of her sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haden & Lacey 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 NEWCASTLE

FILE NUMBER: NCC 2794 of 2010

Ms Haden

Applicant

And

Mr Lacey

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE

REASONS FOR JUDGMENT

1. The proceedings before the Court comprise a parenting dispute in respect of children who are now aged 11 and seven years respectively. The eldest child is female and the youngest child is male. The parties are the biological parents of the children and they separated long ago in 2009. 

2. Former proceedings between the parties were concluded by parenting orders made with their consent in February 2011 by the Federal Magistrates Court (as the Federal Circuit Court was then known). Those orders provided for the allocation to the parties of equal shared parental responsibility for the children, for the children to live with the mother, and for the children to spend substantial and significant time with the father. 

3. These current proceedings were commenced by the mother in September 2014, following the children making allegations of their involvement in sexual activity by another adolescent child who lives in the father’s household. The father refuted the allegations and a stalemate developed between the parties.  

4. The proceedings were started in the Federal Circuit Court but transferred to this Court and entered into the Court’s Magellan Protocol because of the nature of the contested allegations.

Procedural fairness

1. There was no appearance by or on behalf of the father before the Court today, which situation was expected.

2. The father’s former solicitor filed a Notice of Ceasing to Act on 26 November 2014 after having appeared for the father before the Registrar only the day before.  

3. The proceedings were listed before me on 23 February 2015, and there was no appearance by or on behalf of the father that day. On that occasion, orders and notations were made, relevantly including the following:

   IT IS ORDERED THAT

   1.The trial of this matter is listed before Justice Austin on 10:00 am on Tuesday, 12 May 2015, for a period of one day, on an undefended basis.

   …

   NOTATIONS

   A.There was no appearance before the court today by or on behalf of the respondent father. The respondent father’s former solicitor filed a Notice of Ceasing to Act on 26 November 2014. The mother and the Independent Children's Lawyer inform the Court that they have had communications with the father since that time but in the last few weeks the father has ceased his communication and has ceased compliance with existing orders providing for the children to spend time and communicate with him.

   B.These proceedings will be heard and determined in the absence of the father unless he takes steps to relist the proceedings before the Court for further procedural directions pursuant to Order 5 hereof. 

   …

4. The mother deposed to her receipt of a letter from the father after he had been served with a copy of the Court orders and notations made on 23 February 2015. Relevantly, the father wrote in his letter:

   a)He understood “the Court has an obligation to take matters of this nature seriously”;

   b)He had made a decision to “let go of seeing [his] children”;

   c)Due to his assertion of the falsehood of the children’s allegations of their involvement in sexual activity, he was “not willing to have [them] around any of [his] family or friends, as they may be the next victim of false allegations”; and

   d)He was “no longer able to continue on with contact with [his] children”.

5. The mother deposed the father had not seen or communicated with the children since 1 February 2015, despite interim consent orders being made on

   
   

   21 October 2014 providing for the children to spend time and communicate with the father, on the proviso that he kept them away from the other children in his current household. Even in the period of months between the making of the interim orders and the father’s decision to cease contact with the children, his interaction with them was spasmodic. 

6. It is clear the father’s decision not to participate in the proceedings and to suspend his interaction with the children is a voluntary one. He has been afforded the chance to participate and spurned it. He has not been deprived of procedural fairness. It was fair and proper the litigation proceed to final determination in his absence today.

Proposed orders 

1. The mother presses for the orders set out in her Amended Application filed on 13 March 2015. In essence, she seeks allocation of sole parental responsibility for the children, for the children to live with her, and for her to decide if, when, and how the children spend any time or communicate with the father. 

2. The Independent Children's Lawyer supports the mother’s proposal, although that support is lent as a consequence of there being little other option available.

The evidence

1. In support of her proposal, the mother relies upon her two affidavits filed respectively on 22 September 2014 and 5 May 2015. The Independent Children's Lawyer did not require the mother for cross-examination. In the absence of any challenge, I accept the mother’s evidence as correct. 

2. The Independent Children's Lawyer and the mother also relied upon the Magellan Report dated 12 January 2015, which was furnished to the Court by the New South Wales Department of Family and Community Services (“the Department”). That report was procured by the Court from the Department when this matter was previously managed within the Court’s Magellan protocol by reason of the allegations made about the children’s involvement in sexual activity.

3. The Magellan Report verifies that allegations pertaining to the children’s involvement in sexual activity were made to the Department in

   
   

   September 2014. The report indicates that on 23 September 2014 the allegations proceeded to “the weekly allocation meeting for consideration”. The Department deemed the mother to be protective of the children and determined “the matter would be closed due to competing priorities”. 

4. By reason of reports made to the Department, the sources of which were unidentified, the Department harboured some concern the father “would not act protectively for [the children] when they are in his care due to his disbelief of the abuse”. 

5. The Department further reported to the Court as follows:

   Due to competing priorities, [the Department] has not conducted a thorough risk of harm assessment and does not have any intention to intervene as a party to the proceedings in the Family Court of Australia at this time.

6. Consequently, there has been no determination as to the efficacy of the allegations concerning the children, made in September 2014, and the mother does not seek any determination of fact by the Court in these proceedings.

Legal principles 

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

3. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, but the Act also provides that presumption either does not apply or may be rebutted in certain circumstances.

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other. 

5. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

1. I turn therefore to s 60CC of the Act to determine the children’s best interests.

2. Dealing firstly with s 60CC(2)(a) of the Act, the children clearly have a meaningful relationship with the mother, from which they derive considerable benefit. No aspect of the evidence suggests that the nature of their relationships with the mother should be the subject of any material alteration.

3. Conversely, the state of the children’s relationships with the father is largely unknown. According to the unchallenged evidence, there was a deteriorating level of interaction between the children and the father after the allegations were made in September 2014, and there has been no interaction between them at all since February 2015. The father currently evinces an intention to indefinitely terminate his interaction with the children for the remainder of their minority. Of course, that is his prerogative, though the children will likely despair his departure from their lives. 

4. As to s 60CC(2)(b) of the Act, it may be plainly stated that the father poses no direct risk of harm to the children, but he may be indirectly responsible for their exposure to the risk of harm in his household.

5. The father has lived with his current de facto partner, Ms D, for about the last five years. Ms D has two children of her own: E who is about 10 years of age, and F, who is about six years of age. 

6. When the allegations of the children’s involvement in sexual activity were made in September 2014, it was contended E was the person responsible.  Those allegations developed generally in the following way.

7. In or about early 2014, the mother took the children to see Dr G.  The mother deposed the children had complained to her on a number of occasions that Ms D’s children, and in particular E, had bullied them. Those allegations became more specific with the elapse of time. 

8. On 19 August 2014, the mother attended a parent-teacher interview with one of the children’s teachers. That teacher expressed concern to the mother about the youngest child’s unusual behaviour and said to the mother:

   [The youngest child] has been upset. He gets teary on the Friday before he goes to his father’s and his behaviour’s [sic] quite different from usual.  He’s told me that he gets bullied and the boys there pull their pants down and rub themselves on the fence. 

9. The mother deposed the teacher who reported that to her then made a mandatory notification to the Department. 

10. Not long afterwards, on 4 September 2014, the mother took both children to counselling at a centre called “H Therapy”, where the appointed counsellor conducted separate counselling sessions for the mother and for each of the children. Following a counselling appointment between the counsellor and the eldest child, the eldest child said to the mother:

    We don’t like going to Dad’s. They dared [the youngest child] to kiss [E’s] balls. 

11. On 9 September 2014, the youngest child said to the mother:

    He [a reference to E] makes me go under the bed with a torch. I have to kiss his balls and lick between the bums. 

12. That same day, the eldest child said to the mother;

    I have to do the same thing [in apparent reference to what the youngest child had reported to the mother shortly before]. 

13. The mother raised her concerns about these reports with the father. The mother deposed that on 19 July 2013 (which I perceive to be a typographical error since it is an event following her description of events in September 2014) she sent a text message to the father indicating her concern about what she had been told by the eldest child. Shortly thereafter, the father returned the mother’s text message indicating there was nothing to worry about. The mother was not as reassured as the father would have hoped. 

14. Following the allegations, the mother resolved not to make the children available for any further contact with the father, given his summary dismissal of her concerns. On 12 September 2014, she went with her sister to the father’s place of work so that her sister could hand to the father a letter which she had composed. A copy of the letter is annexed to the mother’s first affidavit. The letter is dated 12 September 2014 and explains to the father her decision to suspend further interaction between him and the children.

15. The father flatly rejects the representations made by both children to the mother as false but there is no obvious objective basis for him to do so. The children have apparently made consistent reports of their involvement in sexual activity by E to a teacher at their school, to a counsellor, to the mother, and to officers of the Department.

16. There is clearly a need to protect the children against the risk of harm through their subjection to sexual abuse by E in the father’s home, which risk the father blithely rejects. It may be the children’s reports are false, but no evidence has been adduced to ameliorate the risk which the existing evidence does suggest exists.

17. As to the additional considerations prescribed by s 60CC(3) of the Act, little else need be said. The mother is the only person willing to have the children live with her. The father is unwilling to spend time or communicate with the children. His disinclination to do so is an adverse reflection on his parenting capacity. He has seemingly chosen to prioritise his partner’s children’s interests over the interests of his own children and, therefore, as the Independent Children's Lawyer recognises, the orders proposed by the mother are all but inevitable.

Orders

1. Before passing to the orders that I intend to make, it is necessary to return to the precise provisions of the Act.

2. As I earlier said, the Court is required to apply a rebuttable presumption that the parties should have equal shared parental responsibility for the children. Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the court it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. On the state of the existing evidence, I am so satisfied that s 61DA(4) is invoked.

3. It is clear the father has no intention to engage in sensible dialogue with the mother about the prospect of the children’s exposure to risk within his household. He has chosen to sever his relationships with the mother and the children. It would be absurd to expect the mother, in such circumstances, to maintain a line of communication and to discuss long term issues of importance in the children’s lives as s 65DAC of the Act would require of her if equal shared parental responsibility was allocated to the parties.

4. I am so satisfied the mother should have sole parental responsibility for the children, in which case, s 65DAA of the Act is not engaged and the Court is not obliged to consider, in an hierarchical way, certain prescribed residential arrangements for the children.

5. The children should live with the mother, who is the only person who sought their residence, and no orders should be made prescribing when and how the children spend time or communicate with the father, given his decision to abandon them.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 May 2015.

Associate: 

Date:  20 May 2015