HELU & ANDERSON

[2012] FamCA 725

FAMILY COURT OF AUSTRALIA

HELU & ANDERSON [2012] FamCA 725

FAMILY LAW - CHILDREN - Where the Mother failed to appear - Where there are allegations that the Mother has problems with alcohol abuse and anger management - Where the Court has the benefit of a Family Report and the views and recommendations of such an expert and the child’s interests and independently represented - Where the Independent Children’s Lawyer and the Father agree upon the Orders to be made in the child’s best interests

Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53

APPLICANT: Mr Helu

RESPONDENT: Ms Anderson

INDEPENDENT CHILDREN’S LAWYER: Ms J Harrington

FILE NUMBER: BRC 7296 of 2012

DATE DELIVERED: 27 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27 August 2012

REPRESENTATION

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Law

Orders

1. The Father, Mr Helu (“the Father”), have sole parental responsibility for decisions in respect of the long-term care, welfare and development of the child, J Anderson Helu, formerly known as J Anderson (“the child), and in the exercise of that responsibility the Father shall:

   (a)       Notify Ms Anderson (“the Mother”) in writing prior to making decisions about major long-term issues in relation to the child, including, but not limited to, the child’s education and health;

   (b)       Invite the Mother to indicate her views in writing;

   (c)       Consider the Mother’s views in making such decisions; and

   (d)       Inform the Mother in writing of his decisions.

1. The child live with the Father.

1. The child shall spend time with the Mother at all times as may be agreed, but failing agreement, as follows:

   (a)       Upon the Mother having confirmed her enrolment and commencement of a suitable alcohol treatment and relapse prevention program and having provided evidence of same from such program; and

   (b)       Upon the Mother having confirmed her enrolment in and commencement of a suitable anger management program and having provided evidence of same from such program; and

   (c)       Upon the mother having undertaken any intake procedures required by the contact centre or service to be utilised in accordance with this paragraph;

   The child spend time with his Mother for two (2) hours on the first Saturday of each month, such contact to take place at and to be supervised by a contact centre nominated by the Mother, but situated within 40km of the child’s home.

1. The child communicate with the Mother by telephone at such times as the child reasonably requests.

1. The Mother communicate with the child by telephone between 6.30 pm and 7.00 pm each Tuesday evening, with the Mother to initiate the telephone calls to the Father’s landline telephone number and the Father to ensure that the child is available to receive those telephone calls.

1. The Mother and the Father shall:

   (a)       Forthwith advise each other of the names and addresses of all educational and health care providers upon whom the children attend or have attended and forthwith upon any changes thereto;

   (b)       Forthwith authorise all educational and health care providers to release to the Mother and the Father any information and documents relating to the children upon request by the Father or the Mother and subject to the person making the request making payment of any costs associated therewith and providing these Orders to the relevant carers, and these Orders are in and of themselves sufficient authority for the release of information by those carers and service providers to all parents;

   (c)       Keep the other parent informed from time to time of each of their current residential addresses and telephone numbers (including landline and mobile) as soon as is reasonably practicable.

1. The child’s name be changed to (first name) J, (middle names) … Anderson, (surname) Helu.

1. Both parties shall do all things and acts necessary, including signing the necessary documents to effect a change to the Registry of Births, Deaths and Marriages so that the child’s name is changed to J … Anderson Helu, as set out above.

1. In the event that either party fails to sign any documents necessary to effect the change of name herein within seven (7) days of receipt of a written request by another party, the Registrar of the Family Court of Australia at its Brisbane Registry is appointed and empowered to execute all such documents and do all such acts and things necessary to implement paragraphs 7 and 8 of these Orders, and it shall be sufficient proof that there has been non-compliance if the requesting parent provides to the Registrar an affidavit deposing to such non-compliance by the other party.

1. From December 2012, the Father shall have leave to take the child to Tonga for not more than twenty-eight (28) days on the following basis:

   (a)       That the Father provides notice in writing to the Mother of his intended travel not less than six weeks before the date of such travel; and

   (b)       That he provides full flight details together with copies of return tickets to the Mother not less than four (4) weeks before the date of such travel;

   (c)       That he provides to the Mother a contact address and telephone number as to where the child will be staying not less than four (4) weeks before the date of such travel; and

   (d)       That any travel does not result in the child missing school.

1. The Mother and the Father do all acts and things and sign all documents necessary for the purpose of obtaining an Australian passport for the child. In the event that one party neglects or refuses to comply with this Order:

   (a) A Registrar, Deputy Registrar or Judge of the Family Court of Australia is hereby permitted, pursuant to s 106A of the Family Law Act 1975 (Cth) as amended, to execute all deeds and any document sin the name of the Mother and/or the Father and do all acts and things necessary to implement paragraph 11 of these Orders; and

   (b)       The execution of such documentation by the said Registrar, Deputy Registrar or Judge shall have the same forcibility as if the documents had been executed by the defaulting party or parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helu & Anderson 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 BRISBANE

FILE NUMBER: BRC 7296 of 2012

Mr Helu

Applicant

And

Ms Anderson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an application filed in the Federal Magistrates Court in August 2010, Mr Helu, the father of J Anderson, born in August 2000 (also known as J Helu) (“the child”), sought parenting Orders in respect of the child pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The Father filed an Amended Initiating Application on 3 February 2012. By her Amended Response, filed on 16 February 2012, Ms Anderson, the mother of the child, sought different parenting Orders.

3. The proceedings, as noted, were initiated in the Federal Magistrates Court and were transferred to this Court by Order made on or about 22 August 2011. Prior to that transfer, and pursuant to s 68L of the Act, an Order was made for the child’s interests in the proceedings to be independently represented by a lawyer, and Ms Julie Harrington, who I will refer to as the Independent Children’s Lawyer, has performed that function.

4. Orders were made in this Court by Registrar Coutts on 19 January 2012 to progress the substantive proceedings to a trial. Both parents were then represented by lawyers. There was, in accordance with the usual case management practice guidelines, an Order made for a compliance mention to be held on 16 April 2012 and, at a callover in about May of this year, the substantive proceedings were listed for trial to commence today.

5. In the event, the Applicant Father appears for himself today with the assistance of his present partner, Ms V. The Independent Children’s Lawyer appears by her Counsel, Dr Sayers. There was no appearance by the Respondent Mother when the matter was called on this morning, and again this afternoon I have required her name to be called and there is no appearance by her.

6. Dr Sayers, Counsel for the Independent Children’s Lawyer, informed the Court this morning that the Independent Children’s Lawyer had telephoned the Mother this morning when she did not arrive at Court. Apparently, the Mother informed the Independent Children’s Lawyer to the effect that she did not propose to attend the trial today, but before the Independent Children’s Lawyer could discern and ascertain any particular reason for that position, the Mother terminated the telephone call.

7. I record that the Court has not received any advice from the Mother as to her position, and thus there has been no forewarning by her to the Court of her intention not to appear today. The Mother has not indicated either to the Independent Children’s Lawyer, the Father, or for that matter, the Court, of any intention to seek any adjournment of these proceedings.

8. Plainly enough, on the history, the Mother was aware, via the case management directions referred to, that some months ago these proceedings were set down for a trial to commence today. On the information provided by the Independent Children’s Lawyer today, the Mother was aware the trial was to proceed today, and the Mother has chosen not to attend, or at least not to provide any explanation for her non-attendance, given that she had that opportunity this morning when she spoke to the Independent Children’s Lawyer. There is evidence before me that the Mother suffers mental health issues; she has been diagnosed with Bipolar Disorder requiring medication. There is also evidence before me that the Mother is prone to alcohol and illicit substance abuse. Whether these health issues play any part in the Mother’s non-attendance today is speculative given the Mother’s termination of her communication with the Independent Children’s Lawyer this morning.

9. In the circumstances, both the Father and the Independent Children’s Lawyer pressed for the matter to proceed on an undefended basis.

10. Having regard to the findings I will shortly record with respect to the relevant s 60CC considerations, I am satisfied that it is in the child’s best interests for final parenting Orders to be made, notwithstanding the Mother’s non-attendance today. I am satisfied, given the history of this matter’s progression to trial today, and the Independent Children’s Lawyer’s efforts to engage the Mother this morning, briefly referred to, that the Mother has been afforded procedural fairness and natural justice.

11. These proceedings are governed by Division 12A of the Act, and it is relevant to note that s 69ZN, within that Division, sets out the principles for conducting child-related proceedings. Whilst all of those principles have resonance, I note in particular by s 69ZN(3) that the first principle is for the Court to consider the needs of the child concerned, and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. I will say more about the child shortly, but it is to be noted that he is an intelligent and articulate 12 year old boy, and these proceedings have been on foot since 2010.

12. I also note that s 69ZQ sets out the duties and powers of the Court in giving effect to the principles contained in s 69ZN. Again, all of those have resonance,  but in particular, s 69ZQ(1) of that section provides that, in giving effect to the principles set out in s 69ZN, the Court must decide which of the issues in the proceedings require full investigation at hearing, and which may be disposed of summarily.

13. I will shortly refer to the issues that appeared to be live issues at the outset of the hearing today, and it can be safely said that those issues did not include the residence Order with respect to the child.

14. The child has in fact been in the Father’s full-time care since 25 January 2009. On the competing proposals of the parents, and indeed the proposed Orders as sought in the Case Outline Document filed on behalf of the Independent Children’s Lawyer, it was not in issue that an Order should be made for the child to continue to live with his father. On the face of things, prior to the Mother’s non-attendance, the issues included what time and communication the child should have with his mother, the question of whether the Mother’s time should be supervised or at least a period of supervision, it being the Mother’s contention that at least initially the time should be supervised, whether the Father should have sole parental responsibility, as was contended for by the Father and the Independent Children’s Lawyer, or whether there should be an Order for equal shared parental responsibility, as was initially sought by the Mother, and whether conditions should be imposed upon the Mother in terms of her undergoing alcohol treatment and participating in an anger management program.

15. The further issues can be said to be whether the child should be permitted to travel with his father to Tonga for holiday periods, and finally, whether there ought be a change of his surname. In relation to the last of those issues, I note that the Independent Children’s Lawyer has been able to obtain further views from Ms D, the expert Family Report writer. In summary, Ms D effectively supplements her report by providing information to the effect that given the customary use of the surname Helu for the child over the past several years, she would support the change of the child’s surname as is recorded in Exhibit 1, being the Orders agreed as between the Independent Children’s Lawyer and the Father.

16. There is also support by the Independent Children’s Lawyer for the Father’s position in terms of the ability of the child to travel to Tonga.

17. As noted, in the end result, as between the Father and the Independent Children’s Lawyer, there was agreement about the final parenting Orders that ought be made in the child’s best interests. That agreement is set out in the form of Orders they have each signed, which I have admitted into evidence as Exhibit 1.

18. By way of brief background to this matter, the Father is now 59 years of age and works as a cleaner and lives in suburban Brisbane with his current partner for some years, Ms V. The Respondent Mother is 48 years of age and, on the most current information, being the Family Report of Ms D, she works part-time but is otherwise supported on a disability pension. The Mother has, as earlier noted, been diagnosed with Bipolar Disorder.

19. The parents were not in a relationship either before or after the child’s birth on in August 2000, in terms of either a de facto relationship or a marriage. The Father has a number of other children, namely Y, born in November 1996, and K, born in March 1998, and currently, he is also caring for their half-sibling, W, born in July 2002. These children are subject to current Court proceedings in a trial that is due to start on Wednesday of this week. The Father also has two children from a former partner, LG, who are now adults. He has another two children with the partner, EK, E, who is an adult, and C, who is almost so, being 17 years of age. Y and K are children of the Father and one Ms Merton, who is involved in the proceedings I have referred to which commence on Wednesday.

20. The Respondent Mother has three adult children apart from J.

21. The child J was primarily in the care of his mother from his birth until January 2009, when the child was moved to live with the Father in consequence of the Mother leaving him unattended for an extended period. It would seem that since January of 2009, the child has had only brief time with the Mother on some two or three occasions, and has otherwise lived with the Father and his current partner, Ms V.

22. On the Father’s case, the Mother did not make contact with him or the child for a period of more than a year when the child first came into the Father’s full-time care. It would seem that since January 2009, the child’s telephone contact with his mother has been irregular.

23. Shortly stated, there are allegations of violence by each of the parents against the other and allegations of excessive alcohol and drug use by the Mother. Indeed, by her own admission to Ms D, the Mother acknowledges difficulties concerning her consumption of alcohol and drugs.

24. Historically, the Father has some criminal history in relation to issues of violence, and historically, he was incarcerated for manufacturing drugs, although he denies that he has ever been a user himself of drugs, and on his case, the conviction for the manufacture of drugs was a one-off event. The Father also had the experience of being sent to detention following an assault charge in relation to his son, Y, in 2006. It seems that there was the prospect of the Father being deported to Tonga, but in the end he was released. On the Father’s case, which is corroborated by Ms V’s reports, the Father was merely disciplining Y at the time and that indeed this was the first time the Father had ever used physical discipline with Y. There is, in the Father’s history, some history of him being in breach of Domestic Violence Orders and the particular episodes are set out in the chronology attached to the Case Information Document filed by the Independent Children’s Lawyer on 16 April 2012.

25. As earlier noted, the Mother has mental health issues, having been diagnosed with Bipolar Disorder. She has reported to Ms D, for example, feeling, “…depressed all the time,” and reported that she takes Lithium for her mental health issues. The Mother has an exceedingly long history, back to her childhood, of taking drugs and abusing alcohol. By her own admission, she went to rehabilitation when she was only 13 years of age. Her criminal history includes a conviction for assaulting police and smoking cannabis, and she faced the prospect of a conviction for drink-driving.[1] She admitted to Ms D, at the time of that interview to which I will refer to shortly, that she continues to smoke marijuana most nights, the Mother says to calm herself down.

    [1] I note that Dr Sayers, Counsel for the Independent Children’s Lawyer, raised the point (with which I agree) that although in fact no conviction for drink-driving is recorded in the records of the Queensland Police Service subpoenaed by the Independent Children’s Lawyer, the Mother admitted to Ms D during the interviews for the Family Report that there was police involvement when she had driven a car under the influence of alcohol while the child was in the back seat, as is referred to in paragraph 26 of these reasons.

26. Ms D assessed the Mother to understate her use of alcohol, suggesting that the Mother reported that she does not, “…really drink…” but there is evidence before me to suggest otherwise. Indeed, Ms D confronted the Mother with subpoenaed material from the police about an incident where she was intoxicated whilst driving with the child in the car, and, once confronted, the Mother admitted that that had occurred.

27. Notably, whilst the Mother described herself to Ms D as the victim of domestic violence in a number or a cycle of relationships, she did not include the Father in that description of perpetrators of domestic violence with respect to herself.

28. Ms Do is the expert Family Report writer who has prepared a Family Report in this matter at the request of the Independent Children’s Lawyer. At the time of that Family Report and currently, the Father was living with his partner, Ms V, and with his children, Y, K and also Y and K’s brother, W, and J. Other members of the household were Ms V’s daughter, Ms N, and Ms N’s daughter, then aged 7 years.

29. The Family Report of Ms D is provided attached to her affidavit filed 17 January 2012.

1. Part VII of the Act, ss 60A to 67Q, provides the statutory framework in which this Court exercises its power to make parenting Orders. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met, and details how those objectives are achieved (s 60B(1)), and the principles which underlie those objects, as set out in s 60B(2).

2. Section 60CA of the Act requires that, in deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act identifies the primary considerations and the additional considerations the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled, or failed to fulfil, responsibilities as a parent in the particular respects identified in s 60CC(4).

3. Section 65D of the Act provides the source of the Court’s power to make a parenting Order as defined in s 64B. Section 65D(1) expressly provides that the power to make a parenting Order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. That presumption does not apply in circumstances of abuse or family violence of the kind referred to in s 61DA(2), and 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. Section 61DA(1) provides for a presumption for the allocation of parental responsibility, but does not provide for a presumption about the amount of time a child spends with each parent. That is dealt with by s 65DAA.

4. Section 65DAA(2) requires, where a parenting Order provides or is to provide that a child’s parents are to have equal shared parental responsibility for a child for the Court to consider an equal time Order or a substantial and significant time Order.

5. In Collu & Rinaldo [2010] FamCAFC 53, delivered on 25 March 2010, the Full Court of this Court discussed potential overlapping of the various statutory considerations and suggested that the additional considerations set out in s 60CC(3) might be considered in advance of consideration of the primary considerations.

6. What I have set out in relation to the background to this matter resonates with many of both the additional considerations and the primary considerations expressed in s 60CC and also resonates with the considerations under s 60CC(4).

7. In terms of the child’s views, Ms D, the expert Family Report writer, interviewed the child at the time of preparation of the report. She sets out in paragraphs 10.1 to 10.8 the following:

   10.1 [The child] presented as an articulate and bright young boy who appeared to be outwardly healthy. [The child] was willing to speak with me alone. [The child’s] use of language, tone of voice and general presentation did not indicated that the views he expressed were not his own.

   10.2 [The child] reported that he lived with his mother as a baby and went to live with the father when he was in or about six (6) years old. [The child] reported that when he lived with his mother there was “lots of yelling and screaming at me”. He reported that the mother “kept on getting boyfriends”. He reported one (1) incident whereby he recalled that his mother and her boyfriend were “smoking and drinking… they had a punching fight and he broke mum’s leg. Mum told me to call the police and leave the house”. [The child] reported that there was “fighting” between his mother and all of her partners. He further reported that there was “always smoking and drinking” by his mother and her partners. “Mum drank a lot. She got drunk and angry”. [The child] reported that he heard his mother and her partners “talking about marijuana”.

   10.3 [The child] reported that he was “hurt” by his mother. He reported that “mum scratched my neck, then she dumped me at dad’s for two (2) weeks” (no timeframe provided).

   10.4 [The child] reported that he went to live with his father “one day when mum got angry. She wanted money and went to dad’s to ask him for money. I was asleep but the door was open. Dad got the cops and the cops said I should stay with dad”.

   10.5 [The child] reported that he does not remember visiting his mother since he went to live with his father. He reported that his mother sometimes telephones him. He reported that his mother is “sometimes drunk when she calls, sometimes just angry”. He advised that the mother “talks weird when she’s drunk”. He advised that he does not see his mother “because she gets angry”. [The child] reported that he was “scared to see mum today…it’s been three (3) years and the last few phone calls mum’s been yelling and mean”. He reported that he did not want to see his mother on the day of the interviews. [The child] reported that he would see his mother again if there were “no boyfriends, cigarettes and drugs”.

   10.6 [The child] reported that it was “fun” at his father’s home. He reported that when he is naught he gets in trouble and his father is “angry”. He reported that he has not been smacked since he started living with his father full-time three (3) years ago. He reported that when he used to visit his father before he moved in, he would be smacked and was sometimes bruised from those smacks. [The child] reported that the rules at his father’s house are: “no swearing, no eating in the lounge room, keep your rooms clean and stay where you can see the house”.

   10.7 [The child] reported that his father and Ms [V] do not fight. He reported that the father and Ms [V] do not talk about his mother and “just ask if I want to go back. They tell me it’s my choice and it will be fine if I do [want to go back]”.

   10.8 [The child] reported that his wishes are “to stay with dad. I want to choose if I visit mum or not”. His magic wish was for “dad to take me to Tonga”. He reported that his father shows him photos of Tonga and his family and his father shares stories of Tonga and their culture with him.

8. I accept that Ms D has the relevant expertise, and I accept that she has provided a comprehensive and careful Family Report. I accept the opinions she expresses and I accept the evidentiary basis in terms of any facts expressed in her report. Relevantly, Ms D assessed the child to be, “…an articulate and bright young boy who appeared to be outwardly healthy.” In the paragraphs referred to above, the child obviously reported matters of significance concerning his perception of his life when living with the Mother and his exposure to episodes of domestic violence involving the Mother and her partners.

9. The child reported to Ms D, and I note that she was satisfied that the child was expressing his own views and perceptions, that from the child’s perception the Mother drank a lot and she readily became drunk and angry. The child reported to the Family Report writer that he had been, “…hurt…” by his mother, including an episode of his mother scratching his neck.

10. Of particular significance is the child’s reports to Ms D concerning his communication with his mother in the period since January 2009. The child reported to Ms D, as noted above, that his mother appears to be drunk and/or angry at times when she telephones him.

11. Ms D also interviewed Y and K. She recorded from Y positive experiences that Y has of living with the Father and Ms V, and likewise, K was positive in her reports. Both of the children made reports as to their father speaking of his culture and stories from Tonga and neither reported any matters of concern to Ms D in terms of the experience of their care with the Father. K also reported to Ms D troubling information concerning J’s experience of his own mother. For example, K reported that the Mother, “…used to hit [J], he had big bruises. [J] told me she used to punch him in the stomach.”

12. Ms D provides an evaluation of the matter commencing at paragraph 13.1 of her report. In particular, Ms D opines that there were sound reasons for the child to be placed into his father’s care and to remain in that care from January 2009. I accept Ms D’s opinion that in the three years that the child has lived with the Father, limited progress has been made by the Mother to redevelop and foster a relationship with the child or to demonstrate to him her ability and willingness to place his needs before her own needs. Ms D relevantly sets out the following in each of the following paragraphs of her report:

    13.2 The mother’s understanding of the consequences of her lifestyle to date (for [the child]) and how she anticipates correcting this in the future is of significant concern with regard to her capacity to make and sustain changes in the foreseeable future. I have little doubt that her clear lack of insight is, in the first instance, linked to a basic lack of knowledge around the consequences of child abuse and neglect. I note, for example, in my interview with [the mother], that she remained defensive around any child protection concerns even existing for [the child] (ie. Leaving him home unattended, driving him in a vehicle whilst intoxicated) and appeared to articulate a limited understanding of the correlation between [the child’s] previous negative experiences in her care with his reluctance to maintain contact with her now. [The mother’s] ongoing hostility and inability to regulate her emotions during the brief periods of telephone contact she has with her son appears to exasperate this further for [the child]. I gathered that the mother does not fully appreciate the fact that her parenting was as problematic, neglectful or harmful as what has been disclosed by [the child].

    13.3 Although [the mother] has stated her engagement in a support services (sic) since that time, namely a domestic violence support program, her ability to sustain behavioural changes and to transition her learning’s (sic) into practical parenting remains significantly questionable. Throughout the assessment, [the mother] did not provide information to indicate that she possesses a vested interest in learning why she behaves the way she does and why [the child] responds the way he does during contact. She tended to direct her focus and blame on the father for the current situation, minimise or dismiss the seriousness of the harm her son has endured and generally portray a very limited awareness towards the future care needs of her son. [The mother] would strongly benefit from participating in an anger management program and improving her ability regulate her emotions and communicate without aggression in order to commence a journey of re-engagement and trust building with her son.

    13.4 [The mother’s] alcohol misuse also remains questionable in the context of her current level of alcohol intake. [The mother] denied having substance abuse issues; The (sic) subpoenaed Police material and [the child’s] own disclosures contradict this assertion. Moreover, [the child’s] reported information that [the mother] continues to present as intoxicated during telephone calls further indicates that [the mother’s] alcohol misuse is potentially an unresolved issue which continues to significantly impact her ability to foster a nurturing and loving relationship with her son. Her behaviour, precipitated by alcohol misuse, compounds the risk to [the child] that his mother is unable to make and sustain the changes required to parent him in the near or foreseeable future. [The mother’s] denial of this significant issue highlights her gross lack of awareness in relation to the investment required in sustaining behavioural changes to ensure [the child] is not again placed at an unacceptable risk of harm.

    13.5 I found [the father] to be respectful and forthcoming. He readily disclosed information that confirmed his past poor behaviour. Generally, I found him to be a mature individual who is mostly willing to take personal responsibility for his actions. The information provided by [the child] and his half-siblings indicated that [the father’s] use of excessive physical discipline is not a current issue. None of the children made any disclosures to indicate that since they came to live in his primary care that they have suffered or are at unacceptable risk of harm in [the father’s] primary care.

    13.6    Notwithstanding [the father’s] past poor behaviour and violent lifestyle, [the father] presented to appear genuinely committed to his children’s welfare and best interests. The lack of recent offending behaviour or domestic violence reports further suggests that [the father] has been able to make and sustain appropriate lifestyle changes to fulfil his role as a parent able and willing to protect their children from harm. The reported information indicates that in the three (3) years that [the child] has been in his father’s primary care, the father has not only been able to ensure [the child’s] basic daily care needs are met but moreover that he has been able to make parental decisions to promote his best interests.

    13.7    The information provided by both parents indicates that the dynamics and volatility of their relationship significantly impairs their capacity to communicate. It appears that [the mother] maintains an extremely high level of hostility towards the father and that this prevents her ability to effectively communicate with him. In this regard, it is not considered to be appropriate or in [the child’s] best interest that his parental responsibility be shared. Based on the information provided it is highly likely that such an arrangement would only further increase [the child’s] risk of exposure to conflict and that decisions will not be made in a timely manner.

    13.8 [J] is a child who has suffered as a consequence of parenting (or lack thereof) he received in his mother’s care. Pleasingly for [the child] he appears to continue to make progress in the father’s care. [The child] presented as an articulate and bright young boy who appeared to be outwardly healthy. It is vital that he is afforded the opportunity to continue to improve – phsyically, emotionally and developmentally. In order for these developments to continue, [the child] requires a stable, predictable environment with adults who are capable of fostering his development (as has been provided by [the father] and Ms [V]). I do not believe [the mother] has attained this level of competence.

    13.9 Notwithstanding this, [the child] has a right to be afforded a safe and meaningful relationship with his mother. It is likely that [the mother’s] engagement with services to assist her in addressing her alcohol/drug and anger management issues and to develop appropriate parenting strategies will provide this mother and son with a greater opportunity to develop a more positive, safe and trusting relationship. It is important that [the child’s] contact with his mother is scheduled to reflect the mother’s progress in addressing these outstanding issues and [the child’s] own feelings of safety and security. As such, contact should occur under supervision, ideally through a contact service. (The dynamics and volatility of the parents’ relationship leads me to suggest that supervision by [the father] or Ms [V] in this context will be in adequate to promote [the child’s] best interests or safety needs). Consideration for [the child’s] time with his mother progressing from telephone time to supervised face to face time will be best made through [the child’s] own responses to this contact and [the mother’s] ability to demonstrate ability to participate in telephone contact while she is not under the influence of alcohol and she does not present as hostile or aggressive towards her son.

13. In the end, Ms D recommended that the child remain living in the Father’s primary care (and that was never put in issue, irrespective of the Mother’s non-attendance today). It is her recommendation that the Father have sole parental responsibility for the child, and that position is supported by the Independent Children’s Lawyer. Ms D also recommended that the Mother engage in an anger management program and alcohol treatment.

14. Whilst Ms D made a recommendation that there could be a review of this matter in terms of the Mother having only telephone contact in advance of commencing supervised face-to-face time, the Independent Children’s Lawyer supports the making of Orders now that would see the Mother, provided she satisfies some conditions in terms of undergoing the treatment recommended by Ms D, commencing such supervised time on an ongoing basis.

15. It is of concern on the opinions expressed by Ms D as to whether the child in fact has anything that could be described as a meaningful relationship with his mother currently. It is also of concern that, unless and until the Mother addresses the issues identified by Ms D in her report as referred to in these reasons, whether it will be possible for a meaningful relationship to be established or furthered. Plainly enough, the proposed Orders of the Independent Children’s Lawyer recognise those matters. The Court is fortified, in an undefended hearing such as this, that the child’s interests are independently represented and that the Independent Children’s Lawyer has the statutory duties imposed by the Act in proposing the Orders sought by the Independent Children’s Lawyer and now agreed to by the Father as contained in Exhibit 1.

16. I am satisfied, given the evidence contained in Exhibits 2 and 3, that, having regard to the customary usage of the surname “Helu” by the child over the period since January 2009, it is in his best interests that he be recognised by that surname, particularly also in circumstances where, having regard to the findings on best interests considerations, the presumption clearly is displaced and the Father should have sole parental responsibility for the child. I also note that two of the child’s siblings, namely Y and K, also go by the surname “Helu”.

17. I am also satisfied that it is in the child’s best interests that he have the opportunity to have the experience of travelling to Tonga for a holiday period as proposed by the Father, if his financial circumstance permit that at some time in the future, and I note that the Independent Children’s Lawyer adopts that proposal in the Orders as sought.

18. I find, having regard to the statutory considerations set out in s 60CC, that it is in the best interests of the child for his Father to have sole parental responsibility and the presumption earlier referred to is displaced, having regard to the findings which rely upon the views expressed by Ms D.

19. I am otherwise satisfied that the Orders as contained in the document which is Exhibit 1 are Orders which are in the child’s best interests, having regard to the s 60CC considerations, including the primary consideration of the need to protect the child (s 60CC(2)(b)). In addition to those Orders, as discussed between the bench and the bar table, I will make an Order in relation to the parties signing all documents and taking all necessary steps to obtain a passport for the child, and in default of the Mother signing such documents, I will make the usual Order authorising the Registrar of this Court to sign such documents.

20. I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 August 2012.

Associate: 

Date:  28 August 2012