Hansom & Toth
[2023] FedCFamC2F 920
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hansom & Toth [2023] FedCFamC2F 920
File number(s): PAC 5395 of 2019 Judgment of: JUDGE STREET Date of judgment: 27 July 2023 Catchwords: FAMILY LAW – PARENTING – undefended hearing - presumption of equal shared parental responsibility rebutted – where the child is to live with the paternal grandmother Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: A v A (1998) FLC 92-800
A & Z [2006] FamCA 179
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Goode v Goode [2006] FamCA136
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115
Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
Division: Division 2 Family Law Number of paragraphs: 54 Date of hearing: 24 April 2023 Place: Sydney Applicant: No appearance Solicitor for the First Respondent: Pinnacle Lawyers Counsel for the Second Respondent: Ms C Ingenito Solicitor for the Second Respondent: Savage Solicitors Counsel for the Independent Children’s Lawyer: Ms K Conte-Mills Independent Children’s Lawyer: John Spence & Associates ORDERS
PAC 5395 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HANSOM
Applicant
AND: MR TOTH
First Respondent
MS TOTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
24 April 2023
THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.Any earlier parenting orders are vacated.
Parental Responsibility
3.That the paternal grandmother have sole parental responsibility for all major long term issues for X, born in 2018 (the child) including;
(a)Religion
(b)Health (including Medical and dental treatment)
(c)Schooling
(d)Culture
(e)Where the children live (if it makes it more difficult to spend time with the parents)
4.In making any decision about Major Long-Term Issues about the children, the grandmother will:
(a)Inform the parents in writing 14 days prior to any decision regarding major long-term issues, detailing the decision to be made, their suggestions and reason for that suggestion.
(b)The parents will advise the paternal grandmother, in writing, within 7 days of receiving the grandmother’s letter as above, of their decision regarding the major long-term decision and their reasons for same and any failure to respond to such communication shall be deemed acceptance of the decision.
(c)If the parties are unable to agree, they shall attend professional mediation to attempt to resolve the issue.
Medical
5.This order authorises any treating medical practitioner or practitioners to provide any medical report or report and discuss any treatment in relation to the child to both parents.
6.That each party or their nominee is to contact the other as soon as practicable upon the happening of any of the following;
(a)The child becoming seriously ill;
(b)The child becoming hospitalised;
(c)The child being involved in an accident.
Schooling/ extracurricular activity
7.That this order authorises for each party to receive (at that party’s own expense) reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the children who attend;
8.Each party is at liberty to attend on and communicate with any person involved in any of the child’s educational, sporting or extra-curricular activities irrespective of whether or not that child is presently living with that party;
9.Each party is to follow the reasonable directions of any official or organiser at any of the child’s school, extracurricular activity or other event that the children or any of them is attending.
Contact details
10.The parties will advise and keep the other party advised of their current address and contact details, including the telephone number to be used to communicate with the children 48 hours prior to the children being in their care.
Live with arrangement for the child
11.That the child live with the paternal grandmother.
Spend time
12.That the child will spend time with the parents as agreed, but failing agreement as a minimum, as follows:
(a)That the parents are to coordinate between themselves as to who shall have the child during the parents’ time blocks, and that parent time block shall be in accordance with the following regime.
(b)During usual pre-school terms, until the child reaches school age, each weekend, with collection from pre-school at the conclusion of the pre-school day on Friday, until before pre-school on Monday, with drop off at pre-school, and in the event that either the Friday or Monday are a public holiday, the parents time with the child shall be extended to incorporate a changeover from pre-school on either of the Thursday or Tuesday on either side of the relevant public holiday.
(c)Upon commencement of primary school:
(i)During the New South Wales school terms, each weekend from after the conclusion of school Friday until the commencement of school Monday, and in the event that either the Friday or Monday are a public holiday, the parents time with the child shall be extended to incorporate a changeover from pre-school on either of the Thursday or Tuesday on either side of the relevant public holiday.
(ii)For one half of each of the New South Wales terms 1, 2 and 3 school holidays:
A.1. the first half in even numbered years – with changeover to occur from school on the last day of the school term, and handover to be coordinated with the paternal grandmother; and
B.2. the second half in odd numbered years – with changeover to be coordinated between the parent who is to have the child and the paternal grandmother at 12 noon on the Saturday 7 days after school holidays commence, and handover to be at 12 noon two days prior to school recommencing.
(iii)During the term 4 “Christmas” school holidays as follows:
A.1. in odd years, from 2 PM on 2 January until 2 PM on 15 January; and
B.2. in even years, from 2 PM on 15 January until 2 PM on the earlier of 28 January, or two days before the start of the school term.
(d)Christmas and New Year:
(i)In odd years, from 23 December until 27 December; and
(ii)In even years, from 27 December until 2 January.
(e)The Parents’ time shall be suspended on the following days:
(i)Country G Day;
(ii)The child’s birthday in even years;
(iii)On the paternal grandmother’s birthday;
(iv)Over the Easter weekend, from 4 PM on Easter Saturday until 10 AM (or before school) on Tuesday.
13.That the grandmother may temporarily suspend these orders on no more than six occasions each calendar year for the purpose of attending a significant family function or event.
14.That the parent who has the child shall ensure that the child attends all events, extracurricular activities, school excursions and camps, sporting activities, birthday parties, family functions, and all other activities which the child is invited to participate in.
Implementation
15.Changeover on non-school days shall be implemented as agreed, but failing agreement, by the parents collecting the child from the paternal grandmother;
First preference carer
16.That if both the Mother and Father cannot care for the child, the child shall remain with the paternal grandmother, unless otherwise agreed in writing.
17.The parent who is to have the child is to notify the paternal grandmother 24 hours prior to collection that:
(a)they will have the child for the relevant parent block;
(b)what time they are collecting the child;
(c)to confirm the location of changeover; and
(d)to confirm the date, time and location of handover at the end of the parent time block.
Electronic communication
18.That the child is permitted to have liberal communication with either the Mother or Father by electronic means at any reasonable times and intervals.
19.That both parties shall communicate with one another in a polite and child focused manner in writing, normally by email or by text message in an emergency.
Restraints
20.That both parents are restrained from:
(a)Discussing the other parent or events in the other parent’s home in the presence or hearing the child or permitting any other person to do so;
(b)Involving the child in decisions or discussions about the future living arrangements of the child and the amount of time they spend with the other parent or permitting any other person to do so;
(c)Criticising or making derogatory statements about the other parties, their partners or their family in the presence or hearing of any of the child or permitting others to do so;
(d)Questioning or conversing with the child about where the child want to live or permitting anyone else to do so;
(e)Passing messages to the other parent, or paternal grandmother, through the child in any form except any communication book provided for in these orders;
(f)Allowing the child to be dressed in a way that is not weather appropriate, including ensuring the child has appropriate levels of warmth, socks, shoes, and wet weather clothing where necessary;
(g)Allowing the child to travel in a vehicle without an age appropriate restraint;
(h)Allowing the child to travel in a vehicle driven by an unlicensed driver; and
(i)Allowing the child to travel in an unregistered vehicle.
21.Both parents are restrained from consuming alcohol to excess whilst the child is in their care, or within 12 hours of her coming into their care.
22.Both parents are restrained from allowing the child to be exposed to family violence during any time that they are in their care and shall immediately remove them from any environment where this is taking place.
23.The parents are restrained from leaving the child in the sole care of a minor, or any person who has been charged of a criminal offence involving violence.
Travel
24.That the child’s name is to be removed from the Airport Watch List forthwith.
25.Commencing from the date of these orders continuing thereafter, and unless otherwise agreed between the parties, each party is permitted to travel internationally with the child for one period of up to two weeks in each calendar year block provided that:
(a)The party who is to travel internationally with the child on any given occasion will give the paternal grandmother 28 days written notice of the:
(i)Proposed departure and return dates
(ii)Itinerary of the proposed travel and accommodation overseas,
(iii)The address and telephone number of the premises where the children will be staying from time to time during the trip
(b)The party who is to travel internationally with the children any given occasion will provide the paternal grandmother with copies of return airline tickets booking and written confirmation of payment for the return airline tickets not later than 7 days prior to the proposed departure date.
26.Pursuant to s 11(1)(b) of the Australian Passport Act 2005, the child is permitted to travel internationally for holidays accompanied by either the mother, father or paternal grandmother independently.
27.So far as practical the occasions on which any party takes the child out of Australia are to coincide with normal school holidays, unless otherwise agreed upon between the travelling party and the paternal grandmother.
28.The paternal grandmother will not withhold consent unreasonably.
Passports
29.That pursuant to s 11 of the Passports Act 2005, the grandmother be authorised to solely apply for and execute any application for an Australian passport.
30.That the paternal grandmother will hold the passport for the child
31.That the paternal grandmother will provide the child's passport to the travelling party upon changeover prior to any international travel.
32.That the travelling party will return the passport to the paternal grandmother upon changeover from the travelling party to the paternal grandmother.
Parenting Program
33.The mother shall enrol in a parenting program, such as Parenting Program B, within 14 days of these orders.
34.The Court reserves its written reasons.
THE COURT NOTES THAT:
A.That if a dispute arises between the parties over these orders in the future, that both agree to act with good will and attempt to resolve issues through professional mediation prior to taking legal action.
B.Consuming "alcohol to excess" is taken to be any amount which would result in the parent being above the legal limit to drive a motor vehicle in the state of New South Wales
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These parenting proceedings were commenced on 4 November 2019 and, on 9 November 2022, were fixed for a final parenting hearing on 24 April 2023. The applicant mother has failed to appear. Mr Hanson has appeared on behalf of the father. Ms Ingenito has appeared on behalf of the paternal grandmother and Ms Conte-Mills has appeared on behalf of the Independent Children’s Lawyer (‘ICL’). The proceeding is concerned with the child X who was born in 2018 and she is now aged 5.
UNDEFENDED HEARING
The orders made on 9 November 2022 included the requirement for the applicant to take steps pursuant to her entitlement to seek legal aid as a result of a s 102NA order under the Family Law Act 1975 (Cth) (‘the Act’). The orders also provided for the applicant to file an updated amended application, affidavit and case outline. The Court’s orders have not been complied with and the applicant has failed to appear.
On 16 March 2023 the applicant appeared in person and the matter was stood over for directions on 23 March 2023, with a notation that the applicant expected to have obtained legal representation. On 23 March 2023 there was no appearance on behalf of the applicant and the Court made a further direction that the applicant file an affidavit explaining why she had taken those steps to contact Legal Aid. The Court also included in those orders a notation that the matter, at least, may proceed as an undefended hearing if the applicant failed to comply with the Court’s orders.
The Court has taken into account the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’) in r 1.04 and s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) as well as the principles in s 43, the objects and principles in s 60B and the principles s 69ZN of the Act.
In determining to proceed in relation to an undefended hearing, the Court took into account the following law; Lanceley & Lanceley [1994] FamCA 94 as affirmed in A & Z [2006] FamCA 179 at [66] and Zane & Allen [2008] FamCAFC 115.
66. The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
“A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly ‘undefended’, and it would be a misuse of language to describe them otherwise. They certainly could not be described as ‘defended’.”
As indicated above, the Court has taken into account the overarching purpose and objectives in s 190 of the FCFCOA Act and the principles in s 43 and s 69ZN of the Act. The Court is satisfied that there has been default under r 10.26 of the Rules, enlivening the powers under r 10.27. The Court is satisfied that this is an appropriate matter, in the interests of the administration of justice, in which to proceed as an undefended hearing and has accordingly made an order to that effect.
The Court has taken into account in that regard the Family Report (Exhibit B) and has taken into account the notification to the applicant in reminder of the hearing date in the emails that have been marked Exhibit A, and has also taken into account the content of the paternal grandmother’s affidavit filed on 2 July 2022. The Court was satisfied that it was in the best interests of the child to proceed as an undefended hearing and that the undefended hearing order was in the interests of the administration of justice in all the circumstances given the applicant mother’s failure to appear.
EVIDENCE
In addition to the Family Report and the notification emails, which were marked as exhibits, the Court also received into evidence the affidavit of the second respondent dated 2 July 2022. The annexures were treated as admitted into evidence with the affidavit. That evidence is summarised below.
CHRONOLOGY
1972 Paternal grandmother’s DOB (Ms Toth– 2nd Respondent) 1997 Father’s DOB (Mr Toth– 1st Respondent) 1997 Mother’s DOB (Ms Hansom– Applicant) 2016 C born, from mother’s previous relationship 2017 Parents commence relationship 2018 Child X born (currently aged 5yrs) 2019 Parents separate. ADVO against father for the protection of the mother (for 2 years) mid-2019 Child spent day in hospital due to an illness 4 November 2019 Mother files application seeking a Recovery Order. 10 November 2019 Paternal Grandmother filed Response. 11 November 2019 Orders: Child live with mother and spend time with paternal grandmother and father 2pm Thursday- 6pm Saturday (with father only in the presence of paternal grandmother) 6 August 2020 Orders: Family Therapy 23 March 2021 Observations for Family Report (Mother advises Family Consultant that Father is living with her and an agreement has been reached for the child to spend time with the paternal grandmother fortnightly Wednesday to Sunday. 11 May 2021 Family Report early 2022 Mother’s new partner Mr D charged with assault May 2022 Fist fight with mother and Mr D’s mother 4 July 2022 Orders: Due to non-compliance by mother and father, Court relists the matter to 6 July 2022. 6 July 2022 Matter listed for an undefended hearing on 11 August 2022 at 10:00am (as against the mother); Procedural orders including mother to file documents by 20 July 2022 if she wishes to re-engage with proceedings. The mother has not complied. 8 August 2022 Affidavit of Service (mother served with Paternal Grandmother’s response, counselling certificate, Notice of Risk, Paternal Grandmother’s affidavit dated 1 July 2022, court orders of 6 July 2022, notice of address for service and affidavit of Ms Peita Savage. 10 August 2022 Final Hearing
FAMILY REPORT
The Family Consultant Ms F identified the difficulty in clear recommendations and that if there was a risk of exposure to family violence the child should live with the paternal grandmother. The Family Consultant identified an established and functional communication system between the paternal grandmother and the parents. The paternal grandmother’s cultural background is Culture G.
The Family Consultant noted that the mother said there were high levels of verbal conflict which could escalate to physical violence by the father. It was noted that the mother said there were often verbal conflicts between the parents. The paternal grandmother identified the limited capacity of both parents to meet the child’s needs. No concerns were identified or reported concerning the paternal grandmother or her husband. The paternal grandmother identified concerns as time and effort by the parents in relation to the child. The paternal grandmother wanted the child to have an arrangement were she is cared for and her development is encouraged and thriving. The parental grandmother spoke wanted the child to benefit from schooling and extra-curricular activities and it may be in the child’s best interests to live with her during the school week and to spend time with the mother on weekends.
The paternal grandmother’s husband was supportive of arrangements for the child’s best interests and has two adult children from a prior relationship. The mother discussed why the ADVO was issued and that the father was intoxicated when he smashed up the mother’s house. The father alleged that the mother limited his time with the child as a means of controlling him. The paternal grandmother identified fears of the child being exposed to conflict between the parents and also between the mother and others. The paternal grandmother also expressed concern as to the parents prioritising the child’s needs. Neither parent expressed concern as to the child’s safety with the paternal grandmother and her husband.
The mother identified drinking on Thursday or Friday when the child is not in her care and identified concern as to the father’s use of alcohol and that he turns into a different person. The paternal grandmother identified the parent’s use of alcohol leading to high levels of conflict.
The Family Consultant records that the mother and child are identified as Aboriginal and discussed the benefit of ongoing access to her family history and culture. The mother has a son from a previous relationship now aged 7. The child and paternal grandmother were observed to have warm, reciprocal interactions that showed enjoyment and comfortability. The paternal grandmother showed insight as to the child’s current and emerging needs and has been responsible for key tasks. The paternal grandmother identified the parents as having some difficulty meeting the child’s needs.
SECOND RESPONDENT’S EVIDENCE
The second respondent in her affidavit and that the child had been in her care for a significant part of her life and recently the child spends the majority of time with her. The child’s medical needs were identified and the second respondent has taken her to all doctors’ appointments since the child has been in her care.
The second respondent has a four bedroom home and identified from diary references the time spent with the child. The second respondent identified the parents’ issues with alcohol and going out excessively throughout the child’s life. The parents were said to have a lot of growing up to do before they can co-parent in a healthy fashion. The second respondent identified concern for the child if living with the mother and consumption of alcohol and marijuana with the mother’s new partner. Reference was also made to the child observing that her mother and the new partner are fighting. The second respondent expressed concern as to the child being exposed to violence, drugs and alcohol.
The second respondent identified her desire to get a passport for the child and let her know her Country G family and culture. The second respondent identified the child’s need for a stable home life and that she has no risk in her care. The second respondent explained the child’s routines and activities.
PARENTING LAW
The Court has taken into account the principles in s 43, s 60B and s 69ZM of the Act. The Court has taken into account the statutory pathway in Goode v Goode [2006] FamCA136 at [65].
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. These are to ensure, as stated in s 60B(1) of the Act, that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, 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 for the child. The considerations by the Court are identified in s 65DAA of the Act.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply.
BEST INTERESTS OF THE CHILD
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act. The Court has also taken into account s 60CG of the Act to ensure the orders do not expose a person to an unacceptable risk of family violence. Family violence is defined in s 4AB of the Act and abuse is defined in s 4 of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child 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.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. (emphasis added)
In Loddington at [173], Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering.”
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
ISSUE OF RISK
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally, the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
ADDITIONAL CONSIDERATIONS
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
(i)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
(ii)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(iii)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(iv)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(v)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(vi)Sub-section (3)(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;
(vii)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(viii)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
(ix)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(x)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
(xi)Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
(xii)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
(xiii)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
(xiv)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
The Court has also taken into account that, in applying the primary considerations, greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of the child, the Court has taken into account the whole of the provisions of s 60CC of the Act, including the additional considerations. The Court is exercising its power to make parenting orders consistent with s 65D of the Act. The Court has considered whether this is an appropriate matter in which there should be equal shared parental responsibility under s 65DAA of the Act.
SUBMISSSIONS
The Court has the benefit of a case outline by both the second respondent and the ICL. Materially, the ICL supported most of the orders proposed by the second respondent. The second respondent identified that she has been exercising parental responsibility over the child in recent times and engaging with service providers, including educational avenues for the child and other activities.
The paternal grandmother identified her role in registering the child’s birth and the child’s current living arrangements with her. The parental grandmother has demonstrated that she is capable of making decisions in the best interests of the child. Reference was made to the parent’s lack of capacity to exercise appropriate decision making for the child. The paternal grandmother has continued the child’s relationship with both parents. It was identified the child spends time with the father on a weekendly basis and that the mother will also spend time with the child over the weekend. It was submitted the proposed orders do not prevent the child’s relationship with her parents and to engage in care for the child. The second respondent identified her concerns as to alcohol use by both parents and ability to care for the child if intoxicated. The second respondent identified concerns as to prioritising the needs of the child, the mother having adequate food in her home, the unknown adults at the mother’s home and the mother’s anti-social behaviour.
It was submitted that the child is thriving in the mother’s care and has stability and routine. The father was said to be in agreement with the proposed living arrangements and the weekend time or himself and the mother. It was submitted that the mother has not participated in the proceedings since October 2021 and has not complied with Court orders for filing material since 2019.
The ICL supported the orders sought by the second respondent excluding the Parenting Program C for the mother because of the unlikelihood of compliance.
FINDINGS
The Court is satisfied on the evidence that the paternal grandmother has taken initiative over the period of these proceedings to ensure that the child has received her vaccinations and her birth is registered and that she is enrolled in day care, and providing for the child’s welfare. Relevantly, the Family Report concluded that the paternal grandmother has been primarily responsible for such decisions, either with or without the parents, and that there are some benefits to the child having her paternal grandmother advocate and contribute to decisions for her future.
The Court finds in the circumstances of the present case, given the events the subject of the chronology which the Court accepts have occurred, that the presumption of equal shared parental responsibility is displaced. Any such order for equal shared parental responsibility will be likely to result in increased tension between the parents and may expose the child to ongoing conflict to them, ongoing conflict between the parents and that this poses an unacceptable risk of longer term emotional damage to the child from such conflict.
The Court finds there is no establishing function or communication between the parents and there has been poor communication patterns between them.
The Court finds that the paternal grandmother offers the child a stable and loving environment and that the paternal grandmother has been a protective figure in the child’s life and has stepped in, in recognition of the issues faced by the mother and the father.
The Court has before it the proposal by the parental grandmother that the child live with her and have regular time with her parents as agreed or each alternate weekend and half the school holidays and special days. The Court has taken into account the primary considerations in s 60CC(2) of the Act. The Court must give greater weight to the second primary consideration pursuant to s 60CC(2A). The paternal grandmother having the sole parental responsibility in the areas identified in the proposed orders and living with the paternal grandmother. The Court has as expanded upon below also taking into account the additional considerations.
In relation to s 60CC(2)(b) of the Act, the proposal to have the child live with the paternal grandmother is appropriately protective of the child and recognises the immaturity, needs and issues faced by both parents and protecting the child from being exposed to neglect or family violence. The Court accepts the paternal grandmother’s evidence that the child has reported witnessing her mother and new partner fighting and that the prospect of such further conflict in the future poses a real and unacceptable risk of emotional harm to the child.
The Court finds the magnitude of the risk is sufficiently great to warrant the paternal grandmother having sole parental responsibility on the major issues identified in the circumstance of the present case. The Court has taken into account the paternal grandmother’s evidence of substance abuse including alcohol and illicit drugs, violence involving the mother, her family, partner and the father.
The Court finds that any other order in respect of parental responsibility will place the child at an unacceptable risk of harm were she to be in the long-term care of either of her parents. The Court finds that unacceptable harm to be emotional damage from witnessing family violence, conflict and the magnitude of the risk is significant in this case.
In relation to the additional considerations, the Court has taken into account that the child is now five, but is not at an age where her wishes should be considered.
The Court has taken into account that the child appears to have a positive relationship with all of the adults in her life. The Court finds the relationship between the child and her parents is problematic, and given the allegations of family violence, alcohol and illicit substance abuse and possible neglect of the child when in the care of either of the parents. The Court is satisfied that the orders proposed by the parental grandmother are in the best interest of the child, and the Court has taken into account the maturity of the parents and their inability to always prioritise the child above their own needs. The Court has also taken into account that the ICL supported the parenting orders sought by the paternal grandmother. The Court is satisfied, in all the circumstances of this case that the proposed orders by the paternal grandmother are in the best interests of the child. The Court has taken into account that the ICL supported those orders as being in the best interests of the child.
The Court has also taken into account the importance of trying to prevent further conflict in the proceedings between the parties and is satisfied that making the final orders at this stage is not only in the best interests of the child but also most likely to prevent further proceedings between the parties. At the time of the hearing, the Court took into account the evidence that has been identified above and was satisfied that this is in appropriate case in which it was in the best interests of the child to pronounce orders and to reserve the written reasons. These are the written reasons for the orders pronounced on 24 April 2023.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 27 July 2023
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