HERAMAN & BUCK

[2020] FamCA 116

FAMILY COURT OF AUSTRALIA

HERAMAN & BUCK [2020] FamCA 116

FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at final hearing – Where father failed to attend interview with expert report writer – Where father failed to appear at case management hearing – Where appropriate that matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and that the mother have sole parental responsibility

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Heraman

RESPONDENT: Ms Buck

INDEPENDENT CHILDREN’S LAWYER: Ms Fernandez

FILE NUMBER: PAC 4545 of 2018

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 December 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders Made On 18 December 2019

1. All previous orders shall be discharged.

2. The mother shall have sole parental responsibility for the children X born … 2013 and Y born … 2017.

3. The children shall live with the mother.

4. The mother shall be permitted to relocate the children’s ordinary place of residence to New Zealand.

5. The mother may apply for an Australian travel document (“passport”) for the children X born … 2013 and Y born … 2017 without first obtaining the consent and the father and be permitted to renew the passports for the children as they fall due without the consent of the father.

6. That the Court request that the Australian Federal Police forthwith remove the names of the children X born … 2013 and Y born … 2017 from the Airport Watchlist in force at all points of international arrival and departure in the Commonwealth of Australia.

7. The children shall spend time with the father as agreed between the parties in writing and failing agreement at the sole discretion of the mother.

8. The children shall have telephone and or Facetime communication with the father as agreed between the parties and if failing agreement on Mondays, Wednesdays and Saturdays from 5.30 pm to 6.00 pm (B City time) with the father to facilitate the call to the mother’s mobile telephone.

9. The mother shall make arrangements with the children’s schools/day-care to ensure both parents are authorised to receive all communications from the school that parents would ordinarily receive including but not limited to notifications of activities, parent/teacher nights, copies of school reports and photo order forms and authorisation to liaise directly with the school to enquire as to the children’s progress.

10. The appointment of the Independent Children’s Lawyer is discharged at the expiration of the appeal period from the date of these orders.

The Court Notes That

1. There is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heraman & Buck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4545 of 2018

Mr Heraman

Applicant

And

Ms Buck

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 24 September 2018.

2. The application concerns X born … 2013 and Y born … 2017 (“the children”) who at the time of the hearing were six and two years old respectively.

3. The father has more recently failed to engage in the proceedings and the proceedings were heard on an undefended basis.

4. At trial, the mother relied upon the following documents:

   a)her Amended Response to Initiating Application filed 6 December 2019;

   b)her affidavit filed 6 December 2019;

   c)Notice of Risk filed 24 October 2018.

5. The mother sought orders that she have sole parental responsibility for the children, that the children live with her, that she be permitted to relocate with the children to New Zealand and that she obtain passports for the children without the consent of the father. Orders were also sought that the father spend time with and contact the children as may be agreed between the parties.

6. The Independent Children’s Lawyer (“ICL”) supported the mother’s position.

7. Orders were made by the Court in the terms sought by the mother on 18 December 2019 and reasons were reserved. These are those reasons.

Context

1. The mother was 33 and the father 29 at the time of hearing.

2. The parties commenced a relationship in 2012 and were married in … 2014. The parties separated in late 2018.

3. The older child of these proceedings was born in … 2013 and the younger child in … 2017.

4. The mother is currently engaged in casual employment and, although separated from the father, continues to reside with him and the children in a home owned by the paternal uncle.

5. In the absence of any family in Australia, the mother intends to relocate with the children to her birthplace of New Zealand where her three children of a previous relationship currently reside and where the maternal grandmother will assist with the care of the children.

6. Since the births of both children, the father has spent time with the children on an irregular and inconsistent basis, in part due to periods of being incarcerated. More recently, and notwithstanding the current living arrangement between the parties, the father plays no active role in their day-to-day care.

The proceedings

1. Proceedings were commenced by the father on 24 September 2018 by filing an Initiating Application in the Federal Circuit Court of Australia.

2. On 30 October 2018 interim orders were made by consent that the children live with the mother and spend limited time with the father. The matter was thereafter transferred to this Court.

3. On 6 November 2018 the proceedings came before a registrar who ordered the appointment of an Independent Children’s Lawyer. Orders were also made that parties attend an intake assessment for the Child Responsive Program and that the father file an affidavit regarding his criminal antecedents.

4. On 20 November 2018 the mother filed an Application in a Case seeking interim orders for relocation with the children to New Zealand.

5. On 6 December 2018 the proceedings were again before a registrar who directed that all outstanding applications be listed before a docket registrar on 11 December 2018.

6. When the matter came before the Court on 11 December 2018, an order was made that the mother’s interim application filed 20 November 2018 seeking relocation be dismissed. Orders were also made by consent that the parties undergo urinalysis drug testing. It was further ordered that material relating to the children held by the Department of Family and Community Services (“the Department”) be provided to the Court and that any Local and District Court files relating to the father be obtained. The CAPIA memorandum was also released on this occasion.

7. On 12 February 2019 the matter was allocated for the first day of a Less Adversarial Trial (LAT) on 28 February 2019.

8. Subsequently, on 28 February 2019, the parties were ordered to each undertake urinalysis drug testing at the request of the ICL. On this occasion the Court noted the father’s significant criminal antecedents and requested that material be obtained from the various courts referred to in the National Police Certificate filed by the father. The Court also urged that a subpoena be issued to Corrective Services and Probation and Parole Services for any pre‑sentence reports relating to the father and/or mental health assessments undertaken by him.

9. It was further noted that since the father is in receipt of disability support benefits from Centrelink by reason of mental illness, he is expected to make full disclosure of any medical reports he provided in support of his application for such benefits. It was also the Court’s recommendation that a Chapter 15 single expert forensic clinical psychiatrist report be prepared in the matter.

10. Subsequently, on 26 April 2019, an expert report writer was appointed.

11. On 29 October 2019 both parties were scheduled to attend upon the expert report writer for the preparation of the report, but failed to do so.

12. The matter then came before the Court on 19 November for a case management hearing. The Court noted that there was no appearance by or on behalf of the father and that his solicitor filed a Notice of Ceasing to Act on 2 August 2019. The matter was then adjourned to 18 December 2019 for an undefended hearing. Aside from filing directions, an order was made that the ICL notify the father of the orders made on this occasion and that he be informed that in the absence of his personal appearance on the adjourned date, the mother’s parenting application could proceed to an undefended hearing on that occasion.

13. Despite being notified of the listing date by the ICL via email and by formal correspondence to his address on 24 November, the father did not appear on 18 December 2019. Accordingly, proceedings were heard on an undefended basis and orders made.

Procedural fairness

1. As set out above the father has failed to engage in the proceedings by failing to attend the court-ordered appointment with the expert writer, the case management hearing, and the final hearing in person.

2. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   16.07Parties' participation

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

3. Further, rule 11.02(2)(c) of the Rules provides:

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

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

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

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

5. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

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

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

7. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

8. Such is the case presently before this Court for consideration.

9. In circumstances where, as outlined above, the father has failed to attend a court‑ordered interview with an expert writer and has failed to appear on a number of occasions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

Child Responsive Program Memorandum

1. On 4 December 2018 the parties attended upon a family consultant as part of the Child Responsive Program. At this time the older child was five years old and the younger child only 16 months old.

2. It was understood at the time of the interview that an interim Apprehended Domestic Violence Order (ADVO) was in place protecting the mother from the father. The mother told the family consultant that this ADVO was sought by police following a verbal argument between her and the father, but said that she was not fearful of the father physically harming her.

3. The mother alleged that when the parties used illicit substances the father became physically violent and verbally abusive towards her. She claimed the abuse reduced when parties ceased using drugs. The father denied being violent during the parties’ drug use and told the family consultant that he had only been violent towards the mother in self-defence. He maintained that it was the mother who perpetrated violence against him, including verbal abuse in the presence of the children.

4. The mother told the family consultant that the father was highly controlling of her during and after the relationship. She recounted incidents where he was financially controlling and reported an occasion where he threatened to harm her if she had left him. The father denied this allegation, although the mother maintained that she sought medical advice after feeling depressed about the father’s high level of control in the household.

5. The father reported his previous addiction to cocaine, methamphetamine and cannabis and claimed that he and the mother ceased using illicit substances for the children. The mother reported that her previous alcohol consumption and use of drugs, including methamphetamine, was means to self-medicate the depression she suffered as a result of being sexually abused as a child. She told the family consultant that her alcohol consumption is now limited and that since her pregnancy with the older child she ceased using drugs.

6. The father raised concerns about the mother’s health and reported that she suffered from bipolar disorder and anxiety. The mother only reported suffering from depression and insisted that her diagnosis did not affect her in her care of the children. The mother also reported that the father suffered depression which he denied.

7. The mother told the family consultant about her criminal conviction in 2010. The father maintained that the mother was subject to a number of criminal charges in the past and reported that he himself was incarcerated for driving and fraud offences but no offences relating to violence.

8. The father expressed concerns about the children relocating to New Zealand particularly in relation to being exposed to the mother’s children of a previous relationship who he claims display “unruly behaviour”. He also raised concerns that other members of the maternal family abused drugs and alcohol. The mother insisted that the children will benefit from relocating to New Zealand in light of the emotional support provided by the maternal family and being able to spend regular time with their half-siblings.

9. The family consultant opined that the children appear to have “established relationships with each parent” and that due to their young ages in order to maintain these relationships it is recommended that they spend time with each parent on a weekly basis.

10. The family consultant, concerningly, also opined:

    It does not appear to be in dispute that the parents are currently able to communicate and generally cooperate regarding the children. The past history of family violence, and allegations by each parent of ongoing high levels of control by the other parent, give cause for concern that should the parents come to disagree on significant issues for the children, the children may be exposed to poor parental problem solving skills and a high degree of parental conflict.

The father’s perpetration of violence: The ADVO

1. The father perpetrated violence throughout the parties’ relationship and after separation.

2. Most of the physical violence perpetrated by the father during the relationship stemmed from his use of drugs. The mother asserts that it was not uncommon for the father to “punch, kick, slap, choke and physically restrain” her which resulted in her sustaining a black eye, split lip or a bloody nose. This only lessened to some extent after the birth of the older child but soon continued throughout the course of their relationship.

3. On other occasions the father physically abused the mother in the presence of the children.

4. One such occasion occurred on 22 September 2018 when one of the mother’s children from New Zealand was due to visit Australia. At this time the parties experienced difficulties in their relationship and the father refused to speak to the mother. The mother insisted that they resolve their issues before that child’s arrival. When she observed the father ignoring her efforts to reconcile with him and attempting to push past her, she prevented him from leaving and said words to the effect of “you have to talk to me”. In response, the father who was holding the younger child at the time put the child down and pushed the mother forcibly against a door. As a result, the mother fell down and the father fell atop her. The father then proceeded to grab the mother by the throat and threatened her with the words “are you going to obey me or respect me or do what I say?”

5. These events led to the father’s arrest and the following day an interim Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection. In the months following the incident, the mother suffered domestic violence depression for which she attended counselling with a psychologist and was prescribed an anti-depressant. The mother’s anxiety and depression relating to her experience of the father’s abuse is well documented in hospital records of her psychologist visits: Exh “F”. 

6. Despite the ADVO in place and despite feeling “trapped” by the father, the mother returned to the father’s household with the children in mid-December 2018 in order to provide more stability for the children as she was unable to secure long-term accommodation in refuges.

7. Not long after on 9 January 2019 the father demanded that the mother leave his home and began throwing her belongings including her clothes outside the house. When the mother attempted to retrieve her belongings the father kneed her in the back causing her to fall to the ground. The father continued to kick the mother’s thighs in an attempt to prevent her from standing up. This occurred again in the presence of the children. Although the mother was fearful of the father and held concerns about her and the children’s safety, she did not report this incident to police. She claims that the father warned her against making such a report in light of the ADVO, and did so in “an aggressive and abusive tone”.

8. It is understood that the ADVO was later withdrawn when the mother failed to attend the ADVO hearing listed in January 2019.

1. In late July 2019 the father continued to perpetrate physical violence towards the mother, including punching her in the face to the point where her eyes would swell and bruise.

2. Throughout the relationship the father also displayed controlling and coercive behaviour towards the mother.

3. On one occasion following the birth of the younger child, the father locked the mother outside the house and refused her entry back into the house. At the time it was heavily raining, and the father denied the mother entry despite knowing she was vulnerable as she did not have the support of any family or friends in Australia.

4. With respect to financial matters, the father controlled the mother’s use of bank cards and demanded that her Centrelink benefits be paid into his own bank account. When the mother asked the father for money he questioned her use of it saying words to the effect of “you have no gym membership, no friends or family so what could you possibly need the money for?” On the rare occasion the father did not accompany the mother making purchases, he demanded that she provide receipts of the things she had bought. As a result of the father’s control over the mother’s finances, the mother at times could not properly attend to the needs of the children including their meals.

5. The father also denied the mother use of the family car. After transferring the registration to his brother’s name the father threatened the mother with words to the effect of “if you take the car out, I will make sure that it is reported stolen”. Accordingly, the mother was unable to take the children to their medical appointments.

6. With respect to the mother’s relationships with family and friends, the father often made derogative comments about them to the mother and allegations of ill-conduct on their part. This included denigration of the maternal family such as alleging that the maternal grandfather was an alcoholic or that the maternal grandmother should be denied access to the children since her house was “filthy”. As a result, the mother felt socially isolated from her support network, whom she already experienced physical separation from due to living in a different country to them.

7. When the mother made attempts to have her children who lived in New Zealand join her children in Australia in the father’s household, the father responded with words to the effect of “no, they are not going to live with us, are you stupid?” This is despite promises made by him that this would occur. The mother described the father’s oppressive behaviour in this respect as him “playing mind games” with her.

8. In around February 2018 when the mother and the children visited the maternal family in New Zealand, the father threatened the mother with words to the effect of “if you don’t come back, I’ll get the Court to order [the children] back. You can do this the easy way or the hard way”. This pattern of coercive behaviour only increased in circumstances where the mother could not secure accommodation in refuges and had no choice but to return to the same household. On 6 March 2019, the father demanded that the mother and children leave his household saying words to the effect of “you need to move out today. I don’t care if you take the girls out of school and childcare, so long as you and the children are gone.”

9. Aside from verbal threats, the father also made spurious allegations about the mother assaulting him in an attempt to demean her. This came about in late 2018 when the father purposely upset and caused the mother frustration which allegedly led the mother to “punch and bite” the father in the car. No charges were laid by police and instead the mother sought that the then ADVO be amended to include a provision for no contact between her and the father. Around this time the father also alleged that the mother physically harmed the younger child, blaming her for some bruising caused to that child’s eye. The Department of Family and Community Services on being notified did not substantiate this allegation and concluded that the incident was accidental and that a risk of physical harm was not met.

The father’s criminal history

1. The National Police Certificate annexed to the father’s earlier affidavit records the father’s significant criminal antecedents.

2. According to this document, the father engaged in various criminal activities from 2010 to 2016. In early 2010 the father was charged with various driving offences, including driving recklessly and in a dangerous manner which resulted in periodic detention and several fines. Later in that same year, the father was convicted of breaking and entering a house and stealing the value of $15,000.00. In the following year the father was convicted of stealing a dog.

3. In 2013 and 2014 the father was convicted of “larceny”, “deal with property suspected proceeds of crime”, “possess identity info and equipment to commit indicatable offence” and various counts of “dishonestly obtain property by deception” for which he was imprisoned.

4. Later in 2014 the father was further convicted of driving offences including “drive while disqualified from holding a licence”, “driver/rider state false name/address” which resulted in disqualification periods and two years supervision.

5. Again in 2014, the father was convicted and sentenced to 18 months imprisonment for “Aggravated break and enter & commit serious indictable offence in company”.

6. In 2016 the father was sentenced to 12 months imprisonment for larceny and dishonestly obtaining property by deception and also driving while disqualified from holding a licence. He was also fined and subject to a bond for possessing prohibited drugs.

The mother’s mental health

1. The mother’s mental health issues in the context of her relationship with the father and her lack of support in Australia is well documented in material produced by her treating psychologist: (Exh “F”). The records indicate that the mother has attended upon this psychologist since August 2018 for a total of 10 sessions.

2. The psychologist records that the mother presented with symptoms of depression and anxiety disorder attributed to domestic violence imposed on her. The  psychologist described the mother’s clinical presentation as:

   …unsettled, chronic mood disturbance, six years of a series of life dysfunctions in her thought pattern with negativity, lacks confidence, poor self-esteem and unmotivated, demanding of self, lacks insight of direction and confusion.

3. The mother consistently reported living in a “controlled relationship” with the father and would report her experience of domestic violence and verbal abuse perpetrated by him. The psychologist reports that the mother is “compliant with medication” and that with the help and support she is receiving she is “slowly empowering herself to make a safety exit”.

4. The psychologist noted that the mother’s mindset “is poor due to lack of financial support and stability”. On one occasion the psychologist recorded the mother’s presentation as “calm, content, however frustrated, overwhelmed, withdrawn and angry, of her situation and lack of government support”.

5. The mother’s psychologist further records that the mother reported being “well and happy to carry out as a caring full-time mother, however needs stability”. On this occasion, the mother insisted that she “has stability for herself and the children in New Zealand, financially, emotionally and psychologically with her mother and her children” and that “[both children] will have access to her other siblings in a supportive environment with no domestic violence situation”.

6. The records of the mother’s treating psychologist also document the mother having “nil self-harm ideations and plans” and it is emphasised in the psychologist’s notes that the mother is “overall doing well”.

Parenting

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

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

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

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

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

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

6. The presumption relevantly does not apply where:

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

   b)…

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

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

8. In the present case, the Court is easily satisfied that the father perpetrated serious family violence towards the mother having regard to the evidence adduced in the proceedings. Against this background of family violence, the presumption shall not apply.

9. Having regard also to the nature of the co-parenting relationship between the mother and father to date, it is likely that an order for shared parental responsibility would increase parental conflict between the parents and in turn negatively affect the wellbeing of the children.

10. Documents produced on subpoena by the Family and Community Services Helpline indicated that:

    … [the mother] and [the father] are engaged in a relationship that has a pattern of power and control where one is the victim and/or perpetrator of the violence which appears…to be chronic and ongoing.

11. In their interview with the family consultant both parties also reported that they hold “different views about important decisions which makes cooperating about these issues difficult at times.”

12. It was the family consultant’s opinion that:

    The past history of family violence, and allegations by each parent of ongoing high levels of control by the other parent, give cause for concern that should the parents come to disagree on significant issues for the children, the children may be exposed to poor parental problem solving skills and a high degree of parental conflict.

13. In these circumstances, in which it is clear that the parties have little prospect of cooperative decision making between them, the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the children’s best interests.

14. In any event, where the mother is permitted to relocate with the children to New Zealand, equal shared parental responsibility would be impracticable to exercise.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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

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

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

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

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

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

3. The mother has been the primary carer for the children at all times since birth and it is readily apparent that the children’s primary attachment is to her. The orders proposed by the mother and supported by the ICL will maintain the meaningful relationship between the mother and the children as has always existed.

4. The father has at no stage had a meaningful relationship with the children, in part due to his incarceration and the long history of the mother and the children living in refuges as a result of the father’s violent and oppressive behaviour. For some other months in late 2017 when the children were of a younger age, the mother and the children lived in New Zealand with the maternal family, during which the father had no contact with the children and did not take active steps to foster a meaningful relationship. Following separation, little changed in relation to the father’s intermittent involvement in the children’s lives.

5. Further, despite interim orders made by consent on 30 October 2018 that provided that the father spend a limited regime of time with the children, the father did not avail this opportunity to spend time with them. He often prioritised work commitments which caused him to see the children at inconvenient times or cancelled his time with them because he was “too busy”.

6. While the family consultant opined that the children “appear to have established relationships with both parents”, it appears that throughout the children’s lives the father has exhibited a lack of preparedness to meet the children’s needs. Although the children currently reside within the same household, he has not shown a willingness to support the mother in the day-to-day care of the children.

7. In the circumstances, it is clearly appropriate to make orders that ensure the children remain in the mother’s primary care and that the father’s time be as agreed between the parties, and failing agreement, at the sole discretion of the mother.

8. Should the father be motivated to maintain a relationship with the children, the mother proposes an order that the father at least have electronic communication with the children for 30 minutes as often as three days per week.

Section 60CC(2)(b) – need to protect

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

2. This issue looms large in the proceedings in light of the history of family violence perpetrated by the father towards the mother and his criminal history generally. This gives rise to a significant concern about the risk of harm he poses to the children in being exposed to family violence.

3. The father has perpetrated violence against the mother during and after their relationship and on a number of occasions in the presence of the children. This has resulted in an ADVO order against the father for the protection of the mother and had led the mother and the children to frequently seek safe accommodation in refuges away from him.

4. Relevant to the consideration of needing to protect the children from harm is the opinion expressed by the Department in their Helpline Assessment: Exh “E”. It was noted:

   It may reasonably be expected that with continued exposure to violence, a substantial and demonstrably adverse impact upon [the children’s] psychological wellbeing will occur.

5. An order that the children spend substantial and significant time with the father is, therefore, likely to place them at risk of harm, given the propensity of the father to act violent and oppressive towards the mother especially at times in the presence of the children.

6. Coupled with the high level of parental conflict between the parties which would invite further violence between the parties should they continue to live under the same roof, it is clearly appropriate to make orders as sought by the mother that they primarily live with her in New Zealand in order to safeguard the children from exposure to such risk.

Drug Use

1. Some concern arose in relation to both parties’ drug use when parties attended upon the family consultant. This resulted in an order being made for both parties to undergo urinalysis drug testing at the request of the ICL.

2. As aforementioned, the father reported a history of drug abuse including an addiction to cocaine, methamphetamine and cannabis. Although the father stated that he ceased using drugs “for the children”, no results were provided to the ICL as to drug testing by the father. It is to be inferred that any result may well have been adverse.

3. It is, therefore, unclear whether this occurred. In these circumstances, the Court cannot be satisfied that the father’s historical drug use is not an ongoing concern, particularly in light of evidence to suggest that the father’s violent behaviour was aggravated by his use of drugs.  

4. The mother, however, participated in urinalysis and her results were exhibited in the proceedings: Exh “C”. The results indicate that the all tested substances were not detected. It is the mother’s case that she ceased using drugs since becoming pregnant with the older child and rarely consumes alcohol. As such, the Court is satisfied that there is not an unacceptable risk of physical harm or neglect posed to the children arising from drug use by the mother.  

5. Having regard also to the father’s significant criminal antecedents set out above, it is difficult to find that the children would be safe in the father’s care or safe from exposure to his serious criminal behaviour.

6. In light of the significant evidence as to the risks posed by the father, it is in the children’s best interests that they primarily live with the mother.

7. While it is the mother’s case that the father poses a risk of harm in light of his history of family violence, in her interview with the family consultant she conceded that the children “want to spend time with [the father]” and asserted in her written submissions that she is “not opposed” to the children spending time with him. The mother has in the past encouraged the father to maintain a relationship with the children and intends to continue to facilitate their contact with him.  In these circumstances, the order sought by the mother and supported by the ICL that the children spend time with the father as may be agreed between the parties, will allow the mother to facilitate the children’s time with the father as she may deem fit, and in circumstances where she is confident that the father will not pose a risk of harm to the children that is unacceptable.

The additional considerations: s 60CC(3)

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

   (a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

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

   i)Each of the child's parents; and

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

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

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

   ii)To spend time with the child; and

   iii)To communicate with the child;

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

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

   i)Either of his or her parents; or

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

   iii)With whom he or she has been living;

   e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   f)The capacity of:

   i)Each of the child's parents; and

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

   to provide for the needs of the child, including emotional and intellectual needs;

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

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

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

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

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

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

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

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

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

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

1. Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.

2. The older child was five years old when she met with the family consultant. When the parents’ proposals were explained to her, she expressed a desire to live with the mother in New Zealand and spend time with the father in Sydney. It appears that the family consultant did not discount the views expressed by this child as no comment was made as to her answers being unrelated or tangential. Accordingly, some weight is given to the views of the older child, however, her views will be considered in the context of her maturity level. With respect to the younger child, who was only 16 months old when she met with the family consultant, no weight can be attached to her views as she was too young to be meaningfully interviewed.

3. It is clear that the children’s primary attachment is to the mother and that since birth she has been their primary caregiver. As canvassed above, the children’s relationship with the father has at no stage been meaningful, or at least maintained by the father. Not only has he failed to take active steps to spend time with the children since birth, but unlike the mother, he has not been proactive in their daily lives. Moreover, whilst the family consultant was of the view that the children had “established relationships with both parents” and that it is recommended that they spend regular time with the parent with whom they do not primarily live, as discussed earlier, the need to protect the children from harm is given primacy in the proceedings and is supportive of the orders sought by the mother.

4. Further, the children have a positive relationship with the maternal family. Although the maternal family including the children’s half-siblings have not been observed with the children, the older child told the family consultant that she “enjoys talking to them on the phone” and “would like to be able to travel to New Zealand to see the maternal relatives, particularly her half-siblings”. There is also evidence that the children have spent some months living with the maternal family and were able to “get to know” their siblings. The children’s relationship with the paternal family is less clear.

5. By his disengagement in both the children’s lives and these proceedings commenced by him, the father has failed to take the opportunity to spend time with and make decisions for the children. Even more so after separation when orders were made providing that he spend time with them, the father showed no interest in complying with those orders and rather, regularly “refused to turn up”. It, therefore, appears that the father is unable to prioritise being available to spend time with the children or be consistent in their lives. As such, he is unlikely to meet his parental obligations to maintain the children. 

6. The father’s parenting capacity is also questionable in light of his perpetration of serious family violence and significant history of criminal activity. This, alongside ongoing concerns of his drug use, casts doubt on his ability to act protectively of the children and be properly attuned to their needs.

7. There is no question as to the mother’s capacity to meet the children’s needs given she has been responsible for their daily care since birth. Some concern was raised about her mental health resulting from her experience of domestic violence and how this affected her “day-to-day functioning”. However, since attending upon a psychologist she has been empowered to better her situation, has demonstrated insight and has been proactive in seeking support from the maternal family. There is, otherwise, nothing to suggest that she is other than competent in her care of the children and in her attitude towards her parental responsibilities.

8. The maternal grandmother has played a significant role in the children’s lives and their protection. In the instances where the father perpetrated violence towards the mother to which the children were exposed, she has acted protectively of the children by immediately purchasing tickets for the children and the mother to return to New Zealand. Other times she paid for motel accommodation for the mother and children when they needed to flee from the father’s abusive behaviour. The mother acknowledges that the maternal grandmother has been of great emotional support and has provided financial assistance in meeting the living expenses of the children particularly in the absence of financial support from the father.

9. The mother also expressed difficultly from being without government benefits in Australia and to a greater extent from the father’s control of her finances that has forced her to “beg the father to meet the costs of [the children’s] maintenance”. It is clear that the mother’s lack of support in Australia has been detrimental to her well-being and could in the future affect her ability to fulfil her parental obligations. As such, the Court is satisfied that the children would benefit from relocating to New Zealand where the mother would have access to government benefits and be aided by the maternal family, and, therefore, be in a better position to provide the children with a secure and stable household.

10. The orders proposed by the mother and supported by the ICL would see a maintenance of the status quo for the children with their mother as primary carer. As noted earlier, the children have resided with the maternal family in New Zealand in the past. During these months, they spent no time with the father.

11. Should the mother deem it appropriate that the children spend time with the father to maintain their personal relations with him, it is her evidence that the father can sufficiently meet the expense of travel such that there is no practical difficulty to prevent contact taking place. However, it may be difficult for parties to agree to spend time arrangements in circumstances where no co-parenting relationship exists between them and where their relationship has instead been characterised by high levels violence and control. Although, more relevantly, it seems unlikely that the children will actually spend any time with the father regardless of agreement between the parents, given the father’s lack of interest to do so up until this point. Even if the father were minded to have contact with the children, communication via electronic means would help overcome some practical difficulty from him to do so. In the event of any issue as to the children’s contact or time with the father, he can make an application to the New Zealand courts that will have jurisdiction by reason of the mother’s future residence and the children’s presence in that country.

12. The children are of ‘Kiwi’ heritage. Residing with the mother and the maternal family who also share the same heritage would see the children involved in their culture of origin.

13. The orders sought by the mother would be least likely to lead to the institution of further proceedings given the father’s non-attendance before the Court and failure to engage in the proceedings.

14. A consideration of the s 60CC factors having regard to the background of this matter and the reality that the children have a limited relationship with their father supports the making of orders as sought by the mother as being in the best interests of the child.

15. Such orders will allow the mother to provide for the child with the support of the maternal family without fear of the father and without the risk of harm posed by him.

16. The mother also sought orders which would permit her to obtain a travel document for the child without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the other parent. In the circumstances of this matter where the father has not meaningfully participated in the children’s lives, it is proper for the mother to be able to obtain a passport for the child without the consent of the father and to be able to travel with the children as she wishes.

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

18. Orders will be made accordingly.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 February 2020.

Associate: 

Date:  28 February 2020