Hawkins and Warren

[2010] FamCA 884

FAMILY COURT OF AUSTRALIA

HAWKINS & WARREN [2010] FamCA 884

FAMILY LAW – CHILDREN – Heard on undefended basis – father determined not to participate – alleged family violence towards the mother over a significant period of time – allegations of child sexual abuse – sole parental responsibility – no face-to-face time with the father – Liberty reserved to the father to apply

Family Law Act 1975 (Cth)

M & M (1988) 166 CLR 69
Briginshaw & Briginshaw (1938) 60 CLR 336

APPLICANT: Ms Hawkins

RESPONDENT: Mr Warren

FILE NUMBER: MLC 5651 of 2007

DATE DELIVERED: 13 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 13 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT:	Lampe Family Lawyers
COUNSEL FOR THE RESPONDENT:	N/A

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT        Mrs Hooper

CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT                 Macgregor Solicitors

CHILDREN’S LAWYER:

Orders

IT IS ORDERED THAT

1. All previous parenting orders with respect to the child B born … August 2002 be discharged.

2. The mother have the sole parental responsibility for all matters relating to the child.

3. The child live with the mother.

4. The father be and is hereby authorised to communicate with the child by way of writing, gifts and electronic means as may be reasonably agreed between the parties.

5. There be no face-to-face time to be spent by the father with the child unless agreed in writing between the father and the mother.

6. Notwithstanding paragraph 5 hereof the father have liberty to apply to the Court for any order seeking face-to-face time to be spent with the child.

7. All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

8. General liberty be reserved to both parties to apply.

9. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled ‘Parenting orders – obligations, consequences and who can help’ a copy of which is annexed to these orders

IT IS DIRECTED THAT

1. The subpoenaed and exhibited documents be returned on the usual basis.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Hawkins & Warren is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5651 of 2007

MS HAWKINS

Applicant

And

MR WARREN

Respondent

REASONS FOR JUDGMENT

1. These proceedings seek parenting orders with respect to the child of the parties, B, who was born in August 2002 and is presently aged eight years.

2. The matter came on before me on 10 June 2010 for the first day of the Less Adversarial Trial. On that occasion the father was legally represented and the mother and Independent Children’s Lawyer were represented by Counsel. I made orders for an updated report by Dr H, made directions for the filing of further material and set the matter down for trial to commence on 13 September 2010.

3. Accordingly, the matter is before me today for the conclusion of the Less Adversarial Trial.

4. Before making findings with respect to the relevant facts, I should note that this trial has been conducted on the basis of the applicant mother being represented and an independent children’s lawyer being represented by Counsel. The father has not appeared. 

5. The father has previously been very involved in these proceedings and has filed significant material, most recently an affidavit which he swore on 3 August 2010 which I have read.  He has, in the last few days, filed a Notice of Discontinuance of all applications and, in particular, his Initiating Application filed on 21 May 2007, which was the primary application on which he relied in this matter.

6. Last week when my Associate telephoned all parties to confirm that the proceedings were listed to start before me this morning, she was informed and has advised me that the father indicated his intention not to appear today and that was despite the fact that, on my direction, he was advised that he was still entitled to appear, notwithstanding that he did not have an application before the Court.  In addition, when I commenced sitting this morning, the father was called outside at Court and did not respond to that call.

7. The application before me on behalf of the mother is that the matter proceed on an undefended basis. That application is supported by the independent children’s lawyer.  In my view it is appropriate and particularly in the interests of the subject child that the proceedings do proceed on an undefended basis.  The father has his rights at law which he may pursue and no order which I will make does anything to exclude him from applying to the Court for orders with respect to the child.

8. In addition, he will be forwarded a sealed copy of the orders which I will make together with these reasons for judgment and he is entitled to take whichever course he sees as being fit upon receipt of them.

9. The mother was born in 1969 and is presently 41 years of age.  The father was born in 1967 and is presently 43 years of age.

10. The parties commenced their relationship in November 2001 and that relationship came to an end in October 2003.  Their child, B, was born in August 2002 and is presently aged eight years.

11. The mother has five children by former relationships born, respectively, July 1990, August 1991, September 1994, March 2000 and the latest child born in November or December 2009.  All five children live with her and her now partner.

12. These proceedings have been particularly characterised by two concerning issues.  The first of those is the dysfunctional behaviour mainly manifested by the father’s violence towards the mother over a significant period of time.  There have been intervention proceedings in the State Courts and the mother has received orders pursuant to State legislation.

13. The second aspect has been an allegation by the child which may be seen as being sexual abuse of the child by the father.  This arises out of an allegation made by the mother that when she was bathing the child, she observed that the child was placing her finger in her vagina.  She asked the child who had taught her that, and she indicated that M had done so.  The respondent father’s first name is M.

14. A Notice of Abuse was filed on behalf of the mother on 4 June 2010, detailing the allegations against the father arising out of this incident.  The alleged risks of abuse were noted in that document as being:

    i)The child displayed sexualised behaviours while being bathed by the mother and when the mother asks the child who taught her, that she indicated the father, namely, M Warren.

    ii)The child has disclosed that when spending time with the father, she does not sleep in her own bed and sleeps in the father’s bed.

15. Let me deal with that allegation immediately.  This evidence, which is denied by the father, is concerning.  However, as properly, in my view, conceded by Counsel for the mother today, it is difficult to contemplate making a finding of unacceptable risk in accordance with the authorities, particularly that of M & M (1988) 166 CLR 69 in the High Court of Australia, on that evidence. I do not regard the evidence as being sufficiently strong to make such a finding, particularly given the ratio of Briginshaw & Briginshaw (1938) 60 CLR 336.  However, it is a concerning matter which is necessary to have in mind in considering the best interests of the child.

16. Having said that, the evidence with respect to the violence, particularly given the fact that for whatever reason the father has not chosen to challenge the mother’s evidence in that regard, is very strong indeed.  On the basis that the father has not chosen to challenge that evidence and because the mother’s evidence appears on its reading to be consistent and credible, I accept to the necessary standard that the events, as alleged by the mother, occurred.  In the circumstances, it is not necessary to make individual findings on particular events, but rather to make a general finding with regard to it.

17. I am required to regard the child’s best interests as the paramount issue in these proceedings. “Paramount” does not mean sole or only; it means most important.

18. I have been greatly assisted in my consideration of those best interests by the report of Dr H dated 30 August 2010, which is a full welfare report received by the Court pursuant to the provisions of Regulation 7 of the Family Law Regulations.  Again, there is no need to go into particulars of the contents of that report.  It is credible, professionally prepared and consistent.  Again, on the basis that it has not been tested, I accept it in its entirety.

19. I am required to have regard to the object and principles with regard to the making of parenting orders contained in section 60B of the Act. Those provisions promote the relationship between a child and both his or her parents and give rights to the child to know and be cared for by both parents.  Those rights are subject to their being in the best interests of the child.  Likewise, the parents of the child are required by the section to jointly share duties and responsibilities concerning the care, welfare and development of the child, but again that applies only in circumstances when it would not be contrary to the child’s best interest.

20. In giving consideration to those best interests, I must have regard to the various matters contained in section 60CC of the Act to which I now turn.  The section divides the matters which I am required to consider into two categories.  The first of those, known as primary considerations, are first the benefit to the child of having a meaningful relationship with both of the child’s parents and, secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

21. The desirability of a child having a meaningful relationship with both parents is self-evident.  However, in this matter questions of physical and psychological risk to the child from the father as a result of his dysfunctional behaviour and, particularly, the violence to which I have referred, are very concerning.  It is a matter which must be given very significant weight.

22. In addition to the primary considerations to which I have just referred, there are additional considerations.  The first of those refers to any view expressed by the child with regard to her best interests.  Dr H observed the child in the company of her mother and later, her father.  He had the opportunity to observe all relevant relationships.

23. At paragraph 22, Dr H wrote:

    [The child’s] general view of her family does not include her father with Mr [D] taking father’s place in her thinking insofar as daily family living is concerned.  She said that sometimes at home she takes a bath with [E] “but not [Mr D] at all;  he is never in the bathroom!”.

    Mr D is the mother’s partner.

24. At paragraph 23, Dr H observed the child’s:

    …interactions with her mother as being entirely normal with no indications of strain or tension.

25. Dr H also observed positive reactions between the child and her father.  To the extent that the section requires me to consider the child’s preference, it is clear from Dr H’s report that she does not seek to have any change to her primary living, but also seeks to maintain a positive relationship with her father.  The nature of those relationships then, as required to be considered by the section, persuades me that the primary relationship between the child and her parents is with her mother, but that she has positive aspects to her relationship with her father.

26. I am required to consider the willingness and ability of each of her parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I am satisfied at least, on the basis of the proposals being put to the Court on behalf of the mother, but also by other material that the mother, despite negative aspects to her relationship with the father to which I have referred, does, in fact, promote the child’s relationship with the father and will continue to do so.  That is very much to her credit.  On the basis of all the material, I cannot be as confident that the father would promote the relationship with the mother.

27. I am required to consider any questions of change to the child’s circumstances, a provision which is usually referred to as the status quo.  The child has lived in the primary care of the mother since the parties’ separation.  She would appear, on all the evidence, to be developing normally and appropriately and that is a testament to the good parenting of her mother.  There is no evidence to suggest that that primary parenting should be disturbed in any way.  However, a continuation of a relationship with the father is, on all the evidence, desirable but as to whether it can be put into effect, is a major question.

28. Likewise, the mother’s attitude to the child and the responsibilities of parenthood is far more positive than that of the father and there is then the question of family violence, to which I have referred.  I accept the submissions on behalf of both parties before me that I should make a final order, rather than an interim order.  It would be contrary to the child’s interests for me to make other than the final orders.

29. The structure of the Act requires me, first, to consider a presumption of jointly shared parental responsibility between the parties.  Violence is a basis on which that presumption is rebutted.  In my view, the entirety of the facts and including the fact that the parties cannot communicate with each other to the benefit of the child, rebuts that presumption to the highest degree of probability. 

30. While I then do not need to consider shared time between the parties, on the basis of all that I have so far found there is no question in my mind that shared time is out of the question.  Likewise, substantial and significant time is also out of the question.

31. The child has not seen the father since approximately the end of last year and to the extent that there has been any time spent between them, that had been planned for a Children’s Contact Centre but as noted in the evidence, there were difficulties with that going ahead.  In particular, on one occasion in December 2009, the Contact Centre would not allow the father to collect the child as it was alleged he refused to guarantee that he would have her back by 5 pm.

32. As noted in the evidence, it is alleged and I accept, that he broke a door as he made his way back out to the car.  That is disputed by the father, but again that evidence has not been contested.

33. The proposals of the parties are as follows:-

    ·First, the father has no proposal.

    ·On behalf of the mother, it is submitted that she have sole parental responsibility and that the child live with her.  As an indication of the mother’s attitude towards promoting the father’s relationship with the child, it is submitted on behalf of the mother that that could take place at a Contact Centre, but subject to certain evidence with regard to the husband’s health and, particularly, his psychological health.

    ·For the ICL, it is submitted that no order should be made for face-to-face contact, but that there should be an order for reasonable communication in writing by way of gifts, cards, letters and even by electronic means such as Skype, and that any face-to-face contact take place only with the written consent of both parties first had and obtained.

34. In my view, the order for sole parental responsibility and for the child to live with the mother is clear.  As far as questions of the father spending time and communicating with the child are concerned, I prefer the submission on behalf of the Independent Children’s Lawyer.  In the event that the father seeks to have face-to-face time with the child and that is disputed by the mother, the father can make application to the Court and at that time, the Court will consider his application.  His non-appearance today indicates an attitude to the child which is most concerning, and I do not see that it is appropriate and in the child’s best interests that I should make any order for face-to-face time with his daughter. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin delivered on 13 September 2010.

Associate: 

Date:  1 October 2010