HOUROS & GERBER

[2017] FamCA 148

FAMILY COURT OF AUSTRALIA

HOUROS & GERBER [2017] FamCA 148

FAMILY LAW – CHILDREN – Best Interests of the child – With whom the child lives – With whom the child spends time – Where the father has no relationship with the child – Where there are concerns regarding the parenting capacity of the father – Where time with the father may pose a risk of harm to the child – The mother to hold sole parental responsibility – The child to live with the mother – The child to spend no time with the father

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has disengaged from proceedings – Where the father has been afforded procedural fairness – Where the matter proceeded to undefended final hearing  

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

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Mr Houros

RESPONDENT: Ms Gerber

INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce

FILE NUMBER: PAC 2581 of 2014

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 February 2017

REPRESENTATION

SELF REPRESENTED APPLICANT: No appearance

SELF REPRESENTED RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

Orders

1. That all previous parenting orders are discharged.

2. That the Respondent Mother have sole parental responsibility for the child B born … 2009 (“the child”).

3. That the child live with the Respondent Mother.

4. That the child spend no time with the Applicant Father.

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 Houros & Gerber 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 2581  of 2014

Mr Houros

Applicant

And

Ms Gerber

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 2 June 2014 in the Federal Circuit Court of Australia.

2. The application concerns the child of Mr Houros, the applicant father, and Ms Gerber, the respondent mother: B born in 2009.

Context

1. The parties have never been in an established relationship and agree that during a period of brief friendship in 2008 they “had a one night stand” during which the subject child of these proceedings was conceived.

2. Following conception of the child the mother ceased contact with the father. The child bears the surname Tamir as Tamir is the surname of the mother’s partner at the time of the child’s birth.

3. In 2011 the mother began seeing her current partner Mr C who is known to the child as her stepfather.

4. The father had no contact with the child until the child was approximately four years old. In 2013 the mother facilitated the child spending time with the father on three occasions then ceased facilitating the child spending time with the father in August 2013. 

5. Subsequently, in June 2014, the father filed an Initiating Application.

6. On 25 August 2014 the parties were ordered to attend a Child Dispute Conference on 10 October 2014. Both parties attended on that date.

7. On 16 October 2014 the matter was transferred to the Family Court of Australia.

8. On 23 December 2014 an Independent Children’s Lawyer was appointed for the child.

9. On 21 July 2015 a Family Report was ordered in the matter and interim orders made that the mother have sole parental responsibility for the child, that the child live with the mother and that the child spend no time with the father.

10. On 6 June 2016 upon noting that there was no appearance by or on behalf of the parties or the Independent Children’s Lawyer the matter was adjourned to 10 June 2016. On 10 June 2016 the matter was adjourned by consent to 19 July 2016.

11. On 19 July 2016 the Family Report was released to the parties and trial directions were made.  

Procedural fairness

1. On 4 October 2016 there was no appearance by or on behalf of either party before the Registrar in relation to a compliance check as to the trial directions.

2. On 25 November 2016 the father’s solicitor’s filed a Notice of Ceasing to Act.

3. On 1 December 2016 the father appeared in person before the Registrar and the parties were ordered to file affidavits for trial by 31 January 2017. The mother complied with this order but the father filed no documents.

4. On 3 February 2017 there was no appearance by or on behalf of the father. Orders were made as follows:

   (1)That the matter be listed for possible undefended hearing on 13 February 2017 at 2.15pm subject to the commitments of the Court on that day.

   (2)The ICL is to provide to the father written notice of the adjournment and as to the possibility that the Court may deal with the matter on a final basis undefended on the next occasion in the absence of the father.   

5. On 10 February 2017 the Independent Children’s Lawyer confirmed that a letter had been sent to the father advising him of the next court date and the possibility of the matter being dealt with undefended in his absence.

6. On 13 February 2017 there was no appearance by or on behalf of the father. 

7. On that date the Court was satisfied that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis.   

The mother’s documents

1. The mother relied upon the following documents:

   a)        Her Response to an Initiating Application filed 10 October 2014,

   b)        Her affidavit filed 16 October 2014,

   c)        Her affidavit filed 6 December 2016,

   d)        The affidavit of maternal grandfather filed 6 December 2016.

The evidence

1. The mother and the father became friends in 2008 when the mother was 19 years of age after they were introduced by the father’s then girlfriend.

2. On one occasion in 2008 she went with the father to a motel room where she had two Smirnoff vodkas and then does not recall anything until she was getting out of the motel bed and being told to wash herself by the father. The father called her the next day and told her to buy the morning after pill.  

3. Following the incident in the motel room the mother alleges that her life was threatened by two men who told her not to see the father again. Subsequently, the mother ceased contact with the father.

4. The mother believes that the father first became aware that the child could be his when the child was approximately six months old but that the father was in gaol at this time.

5. The mother’s current partner Mr C was in 2013 sentenced to 18 months gaol for robbery while under the influence of synthetic marijuana.

6. It was during this period, in July 2013, when the father again contacted the mother about the paternity of the child. The father harassed her and her parents about undertaking a paternity test and the mother felt afraid and intimidated.

7. In August 2013 the mother facilitated the child, then four years of age, spending time with the father on three occasions.

8. On one of such occasions she and the child attended a barbeque at the paternal uncle’s house at which the father ripped a bracelet with a cross off the arm of the child and took the child motorbike riding despite the protests of the mother.

9. On a later occasion the mother took the child to meet the father in a park but removed the child from the park when the father criticised the clothes the child was wearing, grabbed the child and yelled at the child.

10. Following this incident the mother ceased making the child available for time with the father.    

11. The father has not seen the child other than in accordance with court orders for participation in a Child Dispute Conference and Family Report assessment since August 2013.

The CDC October 2014

1. On 10 October 2014 the parties participated in a Child Dispute Conference (“CDC”) in which both parents indicated concerns held for the welfare of the child in the care of the other. Following the father being excused from the conference, the father returned to the court building with his partner at the time and confronted the Family Consultant. The father alleged that he had been treated unfairly because his partner had not been involved in the CDC while the mother’s partner and solicitor had been.

2. While the mother’s solicitor attended court with her, neither the mother’s solicitor nor the mother’s partner were involved in the CDC. After arguing with the Family Consultant about this the father approached the secure room in which the mother and her solicitor were sitting and attempted to open the door and yell at the mother. Court security personnel were present and the father and his partner complied with the request for them to leave.  

The Family Report

1. On 8 December 2015 the mother, the father, the child, the mother’s partner, the maternal grandfather and the paternal aunts attended on the Family Consultant for interview and observation with the child. 

2. In the Family Report dated 18 May 2016, the Family Consultant relevantly reported the following:

   88. While [Mr Houros] presented as desirous of a relationship with [the child], serious concerns were raised during the course of this assessment about his capacity to form an appropriate parental relationship with [the child]. While [Mr Houros] demonstrated some capacity to engage playfully with [the child], he was observed to be unable to maintain this for even a short period before returning to behaviour that he had, only a short time previously, been advised against displaying because it may make [the child] uncomfortable. Such behaviour included repeatedly hugging [the child] and repeatedly telling her that he misses her and asking her if she misses him. While [Mr Houros] claimed that he understands that [the child] will need him to “take it slow” with regard to developing a relationship with him, he insisted that she is ready to spend overnight time with him, indicating that he may not sufficiently appreciate the developmental task facing [the child] in building a father/daughter relationship with someone she does not know.

   89. [Mr Houros’s] behaviour during the playroom observation and his responses to some of the questions put to him may indicate that his parental reflective functioning is poor. Parental reflective function refers to a parent’s capacity to think about their child’s mental state and contrast this to their own mental state and poor parental reflective function is linked to poor mental health and other developmental outcomes in children. It is noted that, when [Mr Houros] was asked if he thought [the child] would want to spend overnight time with him, he insisted this was the case and he immediately commenced speaking about being her father and knowing who he is. [Mr Houros’s] rapid shift from a focus on [the child] to focus on himself may demonstrate that he is unable to prioritise [the child’s] emotional needs over his own. When [Mr Houros] asked [the child], during the playroom observation, whether she had missed him and she did not reply, [Mr Houros] continued to question her about this, failing to accurately perceive that her nonresponse and/or her attempt to redirect his attention back on to their game likely indicated that she did not wish to engage in the topic. Furthermore, he failed to take note of her body language, which showed some interest, but also a hesitancy, particularly when he hugged her. It is possible that some of [Mr Houros’s] behaviour in the playroom observation was due to anxiety about seeing [the child] after such a long period and also about being observed.

   90. Serious concerns are also held regarding [Mr Houros’s] capacity to regulate his emotional responses appropriately. [Mr Houros] appears to have a long history of aggressive interactions with police, with some of them occurring in the last few years. [Ms Gerber] claimed that [Mr Houros] had threatened to harm her and her family members and is quick to anger when he perceives he has not got his way. She claimed, for example, that he had thrown money at [Mr Gerber] in the Court room. [Ms Gerber] maintains that [the child] and the maternal family are at risk of harm from [Mr Houros’s] alleged aggressive behaviour. It could not be determined in this assessment whether [Mr Houros] would act aggressively towards [the child], thereby placing her at risk of physical harm. If [the child] was to witness [Mr Houros] verbally or physically abuse anyone, this may place her at unacceptable risk of psychological harm in [Mr Houros’s] care.

   91. Concerns are also held regarding [Mr Houros’s] capacity to take on new information or advice regarding [the child] needs and to follow directions given to him. Prior to the playroom observation, the family consultant had attempted to advise [Mr Houros] about appropriate behaviour when a child is being reintroduced to a parent. The focus of the family consultant’s advice was on [the child’s] emotional needs but [Mr Houros] was observed to immediately act contrary to this advice.

   …

   96. It appears that [Mr Houros] and [Ms Gerber] have no capacity to communicate or cooperate regarding [the child’s] needs. One example of this was the account given by [Mr Houros], [Ms D Houros] and [Ms Gerber] regarding [the child] riding a motorbike during a spend time visit. [Mr Houros] impressed as lacking the maturity to be able to develop a co-parenting relationship with [Ms Gerber] by accepting that she is better placed to make all decisions for [the child], until there is a robust enough co-parenting relationship for him to participate, because she has better knowledge of [the child’s] temperament and preferences. Based on the presentation of the parties and the allegations made, it appears unlikely that [Mr Houros] and [Ms Gerber] will ever be able to develop a civil parenting relationship and concerns are held that [the child] may be exposed to further undermining of [Ms Gerber’s] authority in her presence and/or open parental conflict. It is recommended that [Ms Gerber] hold sole parental responsibility for [the child].

   97. Based on [Mr Houros’s] inability to follow the direction of [Ms D Houros] during the playroom observation, concerns are held about the likelihood that [Mr Houros] would follow the directions of his family members, if they were to act as supervisors of any time he spends with [the child]. In addition, based on [Ms D Houros’s] statements regarding this incident, concerns are raised about the capacity of paternal family members to offer appropriate advice regarding developing a cooperative parenting relationship with [Ms Gerber].

   98. Consideration was given to the potential benefits and risks associated with [the child] spending time with [Mr Houros]. Unsupervised time with [Mr Houros] would allow [the child] to develop a more natural father/daughter relationship with him but such an arrangement could also expose [the child] to potential risk of harm, particularly if [Mr Houros’s] behaviour has not changed, as this assessment suggests.  Time supervised by the paternal family may protect [the child] from unacceptable risk of harm but only if the advice provided by the paternal family is prudent and only if [Mr Houros] implements the advice given. As previously stated, concerns are held about [Mr Houros’s] capacity to follow advice. If [the child] was to spend time with [Mr Houros] at a contact centre, this would allow her to develop some familiarity with him but would limit the development of a robust relationship in the long term. A contact centre is unable to provide indefinite fortnightly contact but may be able to provide four to six visits per year, which may assist [the child] in identity formation. If [the child] spends no time with [Mr Houros], her identity development may be negatively affected, in that she would have little knowledge of her paternal origins and would be denied the opportunity of developing a relationship with [Mr Houros] and the paternal family. However, if contact with [Mr Houros] poses a risk of harm to [the child] that cannot be ameliorated by supervision, the negative impact of such risks on her development must be prioritised over the benefits of her developing a relationship with him.

3. Ultimately, the Family Consultant concluded “that the benefits to [the child] of spending time with [Mr Houros] are outweighed by the risks associated with such an arrangement and it is not in [the child’s] best interests to spend time with [Mr Houros]” and recommended that the mother have sole parental responsibility for the child and the child spend no time with the father.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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 (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

Parental Responsibility

1. 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. 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)].

1. 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. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)). There is no such consent in this matter.

2. Given the father has no established relationship with the child, only having met the child on a few occasions with others present, and has failed to engage with these proceedings since 1 December 2016, it is clear in this matter that it is in the best interests of the child as discussed below that the presumption not be applied.

3. Accordingly, there is no need to consider equal or substantial and significant time. Appropriate time will be determined according to the best interest considerations. 

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. While the child is, it is to be inferred, aware that the father is her biological father, there is no established relationship between father and daughter as the father has spent extremely limited time with the child since her birth.

4. Serious concerns have also been raised by the Family Consultant about the father’s parental capacity and that if he were to spend time with the child “the child would be likely be exposed to poor parental practices and significant parental conflict, which would be traumatising for her and negatively impact her mental health and well-being.”  

5. This leads to the conclusion that in the present circumstances the benefit to the child of developing a meaningful relationship with the father is outweighed by the risk to the child of spending time with her father.

6. It is otherwise clear that it is important for the child to continue in the care of the mother who has been the primary caregiver for the child her entire life.

Section 60CC (2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above there are unacceptable risk factors in the child’s possible engagement and time with the father. 

2. This consideration, which is to be given primacy, is supportive of the orders sought by the mother.

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);

   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.  

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The Family Consultant reported that given the child’s young age little weight should be given to her stated views.  

4. The Family Consultant opined that the child has a good relationship with her mother, mother’s partner and maternal grandparents. In regards to the child’s relationship with the father, the Family Consultant reported:  

   85. [The child] does not have an established relationship with [Mr Houros], having met him on only a few occasions in the past. She had not seen him for several years prior to the family report interviews. [The child] expressed some curiosity about [Mr Houros] but indicated that she is unsure of whether she wants a relationship with him. She did not appear fearful of spending time with him, although, she said she would like her mother present, which may indicate some degree of anxiety about spending time with him without a familiar support present.

5. The mother has been the primary career for the child her entire life. The father has never been involved in decision making for or daily care of the child and has had very limited communication with the child. While the father had previously presented as extremely desirous of a relationship with the child, his disengagement from these proceedings is concerning.

6. There is no suggestion that the mother has failed to maintain the child at any point. The father has failed to provide any support for the child.

7. Orders as sought by the mother will not result in any change of circumstances for the child.

8. There have been indications that the father will be or has moved to the Central Coast recently. As the child lives with the mother in Western Sydney this would make any time with the father practically difficult to achieve. The inability of the parents to effectively communicate and co-parent would also likely make any orders for the child to spend time with the father extremely difficult for the parents to implement. These factors take on greater weight in the context of the significant concerns held about the father’s parental capacity and risk to the child and his disengagement from proceedings.   

9. It is clear that the mother has an established capacity to provide for the needs of the child and no concerns are held for the welfare of the child in her care. However, significant concerns have been raised regarding the father’s capacity to provide for the child’s emotional and intellectual needs which were outlined in the Family Report detailed earlier in these reasons.

10. The father has close paternal family ties and the Family Consultant touched on this in the Report:

    87. [Mr Houros] presented as highly motivated to spend time with [the child]. If [the child] is able to develop a positive relationship with [Mr Houros], she may feel affirmed in experiencing that her father has sought to develop a relationship with her, Spending time with [Mr Houros] would allow [the child] to explore her curiosity about him and the potential role he could play in her life. Establishing a relationship with [Mr Houros] would likely assist [the child’s] identity formation, in that she would know her paternal origins and be able to enjoy a relationship with paternal family members.

11. While there are risks to the child’s emotional development associated with the child not spending time with the father, the Family Consultant opined that such risks were outweighed by the risk of harm to the child presented by spending time with the father.

12. By disengaging from these proceedings the father has demonstrated an inconsistent attitude towards his responsibilities of parenthood.  

13. All of the relevant considerations are indicative of orders being made as sought by the mother.

14. Orders will be made as set out at the forefront of these reasons for judgment.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 March 2017

Legal Associate: 

Date: 10 March 2017