HURST & GERSTEN
[2016] FamCA 870
•12 October 2016
FAMILY COURT OF AUSTRALIA
| HURST & GERSTEN | [2016] FamCA 870 |
| FAMILY LAW – CHILDREN – Parental Responsibility – where previous orders were made determining the father had sole parental responsibility – where father was said to pose sexual abuse, physical harm and domestic violence – where alleges risks were not unacceptable – where no appeal was brought FAMILY LAW – CHILDREN – Parental Responsibility – where father did not participate in these proceedings – where the matter was listed for an undefended hearing – where the maternal grandmother has sole parental responsibility – where child lives with the maternal grandmother – where child to spend time with father as agreed between the parties – where father to give maternal grandmother 21 days’ written notice of his intention to spend time with the child – where father spends time with child daily – where father has a problem with alcohol and regularly uses marijuana – where the child has been exposed to family violence – where there is a real risk of physical or psychological harm suffered by the child in consequence of that expose – where change in circumstances has been in existence for three months – where the distance between father and maternal grandmother will create practical difficulty |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DA(2), 65DAA(1), 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569. |
| APPLICANT: | Ms Hurst |
| RESPONDENT: | Mr Gersten |
| FILE NUMBER: | BRC | 10736 | of | 2012 |
| DATE DELIVERED: | 12 October 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 27 September 2016 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Bassano Law |
| THE RESPONDENT: | No appearance |
Orders
All previous Orders are discharged.
Parental Responsibility
That except as otherwise stated Ms Hurst (hereinafter referred to as “the Maternal Grandmother”) is to have sole parental responsibility for the major long term issues of S born … 2005 (“the Child”).
That the Maternal Grandmother has sole responsibility for making decisions about the day to day care, welfare and development of the Child during the periods when the Child is living with her except as otherwise provided for in these orders.
Whilst under these orders, the Child is spending time with Mr Gersten (“the Father”), the Maternal Grandmother nonetheless has sole responsibility for making decisions about the day to day care, welfare and development of the Child during any such period.
Living arrangements
That the Child shall live with the Maternal Grandmother.
Child’s time with the Father
On the condition that the Father has not consumed alcohol in the 24 hours prior to the proposed time the Father is to spend with the Child and is not to consume alcohol while the Child is in his care, the Child is to spend time with the Father in N Town as agreed to between the Maternal Grandmother and Father but failing agreement as follows:
a.Upon the Father given the Maternal Grandmother 21 days’ written notice of his intention to spend time with the Child, the Father’s time with the Child is:
i.if the Child is at school, the Child is to spend day time with the Father in a five (5) day period being:
1.Thursday (day one) from 3 pm until 6 pm;
2.Friday (day two) from 3 pm until 6 pm;
3.Saturday (day three) from 10 am until 4 pm;
4.Sunday (day four) from 10 am until 4 pm; and
5.Monday (day five) from 10 am until 4 pm if the Monday is a public holiday but if the Monday is a school day from 3 pm until 6 pm.
ii.If the time the Father proposed is during school holidays, the Child is to spend day time contact with the Father in a five (5) day rotation being:
1.Day one from 12 pm until 4 pm;
2.Day two from 12 pm until 4 pm;
3.Day three from 10 am until 4 pm;
4.Day four from 10 am until 4 pm; and
5.Day five from 10 am until 4 pm.
Telephone communication
The Child is able to call the Father at all reasonable times as requested by the Child.
The Father is permitted to speak with the Child twice a week on a Tuesday and Thursday at 5 pm NOTING the Father has the Child’s mobile phone number.
Exchange of Information
That the Maternal Grandmother and Father shall:-
(a) Keep the other party informed at all times of their email address within 48 hours of such change being made;
(b) Inform the other person as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the Child. This Order authorises any treating medical practitioner to release the Child’s medical information to the other person and always at the discretion of that institution.
That the parties authorise, by this Order, the schools or day care centres attended by the Child to give each party information about the Child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the Child (at that party’s cost) and always at the discretion of that institution.
That during the time the Child is with the Father or Maternal Grandmother, they each shall:
(a) Respect the privacy of the Father and/or Maternal Grandmother and not question the Child about the personal life of the Father and/or Maternal Grandmother;
(b) Speak of the Father and/or Maternal Grandmother respectfully.
Restraints
That the Father shall refrain from making critical or derogatory remarks about the Maternal Grandmother or members of her family in the presence or with the hearing of the Child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Maternal Grandmother or members of her family in the presence or within the hearing of the Child.
That the Maternal Grandmother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the Child and that the Maternal Grandmother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the Child.
That otherwise all extant applications are dismissed and the matter removed from the list of active pending cases.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Gersten 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 CAIRNS |
FILE NUMBER: BRC10736/2012
| Ms Hurst |
Applicant
And
| Mr Gersten |
Respondent
REASONS FOR JUDGMENT
introduction
On 5 March 2014 I made orders between the parties finally determining their dispute in relation to S (born in 2005 and hence presently 11 years of age) (“the child”). Those orders provided that Mr Gersten (“the father”) have sole parental responsibility for the child, who would live with him but spend school holiday time with Ms Hurst (“the maternal grandmother”). In the ex tempore reasons which I gave consequent upon the three day trial which resulted in those orders, I dealt with three risks which the father was said to pose to the child, namely a risk of sexual abuse of the child, and a risk of physical harm arising from the father’s alleged alcohol abuse, and history of domestic violence. I also considered the risk of emotional harm from those latter two matters. Ultimately I concluded that none of the alleged risks was of a magnitude as to be unacceptable.
Against those findings, I determined that the child should live with the father, ultimately concluding that the “deciding issue” was that the child had been in the primary care of the father since the tragic death of her mother, and her primary attachment was with him. Further, in considering the risk which the father posed from alcohol abuse I said at [30]:
… In addition, the father resides with the paternal grandmother and so long as he continues to live in [F Town], will likely continue to do so. The paternal grandmother gave evidence before me. Whilst she has a bad back condition, she struck me as a common-sense woman likely to be protective in relation to the child the child in the event that the father did expose her to some risk in consequence of abuse of alcohol. In my view, the fact that the father is residing with the paternal grandmother is an important factor in assessing any risk.
No appeal was brought from those orders. Pursuant to them, indeed the child has until recently continued to live with the father, who remained until recently residing with the paternal grandmother, and the child spent holiday time with her maternal grandmother in N Town.
However by Initiating Application filed 19 May 2016, the maternal grandmother sought orders that the child move into her care. I will discuss her justification for doing so in due course. Then, when the child came to spend holiday time with the maternal grandmother in the June/July school holidays, she did not return her to the father’s care, but rather she has remained living with the maternal grandmother in N Town. I will discuss her current arrangements in due course.
Remarkably, given the father’s involvement in the three day trial before me in 2014, he has not engaged in these proceedings. Even more remarkably, although on 5 September 2016, solicitors filed a Notice of Address for Service for him, on the same day they filed a Notice of Ceasing to Act. There can therefore be no doubt that the father is aware of the proceedings, and the nature of the orders which the maternal grandmother seeks.
By virtue of the father’s non-participation, the matter was listed for an undefended hearing before me on 27 September 2016. The father did not appear, and indeed has had no further engagement with the proceedings after his solicitors filed their Notice of Ceasing to Act.
At the conclusion of the hearing, I reserved my decision. This is the judgment arising from that hearing.
BACKGROUND FACTS
I have already traversed the background facts in my earlier reasons, and will accordingly do so far more briefly than I otherwise would.
The father and mother of the child finally separated in 2010, after a relationship of some years. After separation, the child and her sibling, C, lived with the mother and spent little, if any, time with the father. However in 2012, the child’s mother and sister were tragically killed in a motor vehicle accident, of which the child was the sole survivor. Thereafter, the father took the child to live with him and the paternal grandmother in the small central western New South Wales town of F Town. At the time there was terrible conflict between the maternal and paternal family groups. It will therefore be appreciated that, given that by the time of first trial before me, the child had been living with the father for something in the order of 18 months, particularly given her recent bereavement of her mother and sibling, further dislocation of her extant living arrangements needed strong justification. In my reasons I found that there was no such justification.
The orders which I made on 5 March 2014 operated for about two years, apparently without major mishap.
Pursuant to the communication regime which the 4 March 2014 orders established, on 15 May 2016 at 6:00pm the maternal grandmother rang to speak to the child. Since she could not get through on the child’s phone or the father’s phone, she rang the paternal grandmother. She answered the phone but did not speak. Rather all that could be heard by the maternal grandmother was the child screaming. Her evidence is that the father sounded extremely intoxicated and she thought that he was “smacking into” the child. She said that she could hear the child screaming “stop it.”
The paternal grandmother then asked the maternal grandmother to ring the police. In fact a relative of the maternal grandmother’s did so, whilst the maternal grandmother remained on the phone. The child remained screaming and the paternal grandmother was yelling at the father to leave the child alone. The maternal grandmother’s evidence is that she heard the father say to the child that was “just like her dead mother.”
Whilst it is unclear whether it was during that or a subsequent conversation, the paternal grandmother has told the maternal grandmother that she is petrified of the father as “he is getting out of control with drinking and drugs and was hurting the child, [and] that she was in danger if she stayed there.”
Police who attended the father’s home telephoned the maternal grandmother to enquire if there was a family member that could come pick the child up that night. The maternal grandmother indicated that there was, and arranged for a relative who lived some hours away to commence to travel there. However apparently the father became aware of the intended removal of the child and advised that he had Family Court orders placing her in his care, and he was intending on enforcing them as against the maternal grandmother. In fact to defuse the situation, the child was taken to the home of the watch-house keeper of the local police station. She spent the night there.
The paternal grandmother contacted the New South Wales Department of Children’s Services. The evidence of the maternal grandmother is that they told her that the child was safe in the house with the paternal grandmother, but the evidence is that she has told the maternal grandmother that in fact she is not well enough to look after the child, and does not want to.
There can be no doubt that there was an incident in the paternal grandmother’s home on 15 May 2016. Relevant police records obtained on subpoena and tendered into evidence before me disclose that:
About 5:45pm on Sunday 15 May 2016, the [father] has entered the premises and immediately entered his bedroom. At this time the [father] has begun to yell and scream from within the bedroom. This has continued for a short time before the [father] has left his bedroom. For the next 15 to 20 minutes the [father] has walked around the house yelling and screaming at [the paternal grandmother and the child]. At this time, the [child] was on her scheduled phone call to her grandmother who resides in [N Town], Queensland. The grandmother has been able to hear the [father] yelling and could tell the [child] was beginning to cry, which resulted in her contacting police. The [father] has begun to yell at the [paternal grandmother] continually saying things such as “you fucking had it? Its fucking over now,” “you’re a fucking dog?”, “you better fucking wake up to yourself its all over mate” and “Ill put you in the ground. I know people who will do it.” The [father] saying these things has immediately caused the [paternal grandmother] to fear for her physical safety and safety of [the child]. The [paternal grandmother] has stated that she is fearful for her life and the life of [the child] when the [father] behaves in this erratic manner… The [paternal grandmother] has stated to police that the [father] become particularly aggressive when he is intoxicated. The [paternal grandmother] believes that the [father] was intoxicated due to his aggressive behaviour, his slurred speech and him being unsteady on his feet and not being able to walk properly.
After police located the father, they spoke with him “who was heavily intoxicated and quite aggressive towards police.”
Police then applied for a provisional Apprehended Violence Order, which prohibited the father from approaching either the paternal grandmother or the child within 12 hours of consuming intoxicating liquor or illicit drugs. The father was also charged with an offence of stalking or intimidating intending another to fear for physical harm, arising from his behaviour on the evening, but obtained bail.
In other police records, the following appear:
There have been no problems since the issuing of [the 2014 Family Court] orders and the child has remained living in F Town with her father and grandmother. During the evening of Sunday 15 May 2016 the child’s father had an argument with grandmother [redacted] at home whilst he was intoxicated. The child was at home at the time and on the phone to grandmother [Hurst]. The argument was overheard through the phone by [Hurst] who then called police. Police attended that evening and spoke with the child’s father and grandmother [redacted]. The child was spoken to at this time and was not seen to be injured or harmed in any way. She was spoken to and stated that she has not been assaulted in any way. As a result of that incident however a provisional apprehended violence order was sought and granted. The conditions of this order now precludes the child’s father from living at the premises, attending the child’s school or approaching the child or [redacted] within 12 hours of consuming intoxicating liquor or illicit drugs… At this time the child is healthy and is being cared for. She is clothed to an acceptable standard, is attending school, has made friends and is living in a clean and tidy environment with her grandmother…
However it appears as though as a result of the police attending on 15 May, a history was taken in relation to earlier interactions between the father and the paternal grandmother. They disclosed that “there was a verbal argument between [the father] and [the paternal grandmother] on the night of 14 May 2016. Police were not called to this incident and no further details provided other than that the [father] was swearing and carrying (sic) at the [paternal grandmother] whilst intoxicated… The [father] was heavily effected by alcohol which has induced this aggressive behaviour. The [father] is a self-confessed user of cannabis, although police are unaware if the [father] was under the influence of cannabis during this incident.”
Against the heading “Fears held by victim” there is recorded “that the [paternal grandmother] and [the child] will be assaulted or worse. The [paternal grandmother] fears for her physical safety as the [father] is aggressive and unpredictable when intoxicated.”
Police subsequently attended the father’s home to undertake a check of bail conditions, on 20 May 2016, and again on 25 and 26 May 2016. By then it appears as though the father had moved to live in a different house in the same street as the paternal grandmother. When police checked on 20 May, they recorded:
The [father] answered the door of the residence and stood outside. Upon moving towards police a smell of cannabis was noticed to come from the [father]. The [father] denied any use but after a short time he made admissions to smoking cannabis earlier in the evening…
The subsequent police checks on 25 and 26 May did not detect any such behaviour.
However the police records in evidence are disturbing in relation to the father’s conduct prior to 15 May 2016. For instance, on 29 July 2014 a member of the public reported that he had seen two males seated in the front of a vehicle drinking beer from bottles in brown paper bags. The vehicle registration and a description of the persons were given, and the vehicle was subsequently located by police being driven on a particular road. The father admitted to drinking beer in the town, but denied drinking whilst he was driving. He was tested and did not register above the legal limit.
Then on 3 May 2015 the father was intercepted by a highway patrol and administered a random breath test and random drug test. In his car at the time was the child. The breath test returned a negative result, but the drug test produced a positive detection to cannabis. However a subsequent DRAGER drug test returned a negative result for cannabis, which seems remarkable. However what is concerning is that the police record for that day notes:
In relation to the taking of drugs the [father] made admissions to consuming an amount of cannabis on the day of Sunday 3rd May 2015, stating “I had a couple of cones about midday.”
Interesting, it seems that a second laboratory test of the sample obtained on 3 May proved positive. I say that because also in evidence before me was the father’s criminal history which records that he was convicted of driving a vehicle with an illicit drug present in his blood on 23 September 2015, with an offence date of 3 May 2015. He was fined $200 and disqualified from driving for three months.
Further, in relation to his conduct on 15 May 2016 on 26 May 2016 he was convicted of stalking or intimidating intending to cause another to fear for physical harm, with the sentence requiring him to enter into a bond with a condition not to consume alcohol for twelve months.
Plainly the father’s recent conduct is greatly troubling. It would readily permit the finding that, contrary to his evidence in the 2014 proceedings that he was not drinking excessively, and in any event only consumed alcohol from about 8:30pm of an evening, his drinking is now out of control. He is also clearly regularly using marijuana.
The maternal grandmother gave oral evidence before me. She said that she had spoken with the paternal grandmother after 15 May 2016, who told her she was unable to continue to care for the child. Moreover, when the child came to stay with the maternal grandmother for the June/July school holidays, she told the maternal grandmother that the paternal grandmother had told her that she could stay in N Town if she wanted to. In fact her first words were when she came off the plane were “nan I’m coming to live with you.”
Since the maternal grandmother has withheld the child, her evidence is that the father has only contacted the child by text message on two occasions. The first text was to the effect that “nan’s going to jail.” The second was in respect of some communication about some miniature dolls which apparently the child collects. There has also been one phone call, which although the maternal grandmother was not present for, has been reported to her as being a short phone call in which the child spoke to the father in relation to her doll collection.
Also in her oral evidence the maternal grandmother told me that the child has settled well into living with her and is seeing a counsellor. She is enrolled in a school where her grades are good, and she has been student of the week on one occasion. Initially she had nightmares when she first came to live with the maternal grandmother, but they have now abated. The child has some friends in the complex where she lives, and has three good friends at school.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach to risk assessment in Family Court proceedings, albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
SECTION 60CC CONSIDERATIONS
As is frequently the case, this matter essentially turns upon a weighing of the two primary considerations, albeit in the light of a number of additional considerations. However critical in this case is the obligation to give greater weight to the need to protect the child from harm from being exposed to abuse, neglect or family violence.
There can be no doubt that the events of 15 May 2016 comprised family violence. Moreover, it appears as though a similar argument had ensued the evening before. Whilst I do not have any detailed evidence from the paternal grandmother, it appears as though the father presenting as intoxicated and becoming aggressive is a regular feature of his behaviour from time to time. Given that it seems to take place in the father’s residential premises, so long as the child is living with him, she is likely to be exposed to that conduct.
Plainly the father has a considerable problem with alcohol and is a regular user of cannabis. A parent simply cannot function appropriately when under the influence of one, or worse, both, of those substances.
As noted at paragraph 2 of these reasons, critical to my risk assessment in March 2014 was the presence of the paternal grandmother in the father’s home. However the father no longer resides with her. Whilst he does live in the same street, that protective influence is no longer present in his home. There is therefore a markedly increased risk of the child being harmed from being exposed to the father’s conduct.
Against that consideration, I turn then to an analysis of the benefit of the child having a meaningful relationship with the father. Unfortunately so long as the father continues to be in the grip of alcohol and substance abuse, the benefits which the child might otherwise have obtained from a meaningful relationship with him will be substantially reduced. I have little doubt that given her bereavement of her mother and only sibling, her relationship with her father is an important one, but it cannot be permitted to be experienced in an unsafe way. Further, I note the maternal grandmother’s evidence that since she withheld the child, the father’s communication with the child has been limited at best, and inappropriate on one occasion.
Turning then to the additional considerations, it appears as though the child announced her intentions to reside with the maternal grandmother once she came to stay in the recent school holidays.
The child has a strong relationship with the maternal grandmother. At [45] of the earlier reasons I specifically said:
However I do acknowledge that the relationship which [the child] has with her maternal grandmother is a deeply loving, caring, affectionate and warm one. That is to be expected, not merely because of the relationship of grandmother and grandchild, but also because of the special character which that relationship represents because, of course, [the child] is the last living reminder of the grandmother’s own daughter. It is perfectly understandable that the grandmother views [the child] has a particularly precious and loving child.
I infer that the child also has a good relationship with the paternal grandmother. Indeed I suspect that it is she who has been providing most of the care for the child in the last two years.
I accept that there may be some effect on the child of a change in residence. However that issue does not loom as large as it did in the 2014 trial, where the death of the child’s mother and sister were still relatively recent. Four years have now elapsed, and it is to be expected that she has recovered from her grieving, at least to a substantial extent.
The distance between where the father and the paternal grandmother live will create a practical difficulty in the child spending time with the father, but not communicating with him.
The father’s capacity to provide care for the child must be seriously in doubt given his abuse of alcohol and marijuana.
The child is of aboriginal descent which she derives from her maternal grandfather.
Plainly there has been family violence by the father, to which the child was exposed. There is presently in place a family violence order prohibiting the father from coming within 100 metres of the child if he has been consuming alcohol in the last 12 hours.
PARENTAL RESPONSIBILITY
In the 2014 trial, the parties agreed that parental responsibility should vest in the party with whom the child principally resides. In those orders I also provided for consultation with the other party, based upon the recent re-establishment of civil communication between the parties. Plainly however, not only does that seem not to have been adhered to by the father, but communication appears to now have slipped back to its previously unsatisfactory state. For instance, the messages that the father sent to the child by text to the effect that “nan’s going to jail” is similar to the standard of communication that the parties had been inflicting upon each other prior to 2014. I am not satisfied that a consultation requirement remains appropriate.
I am satisfied that it is in the child’s best interests for party with whom she is primarily resident to have the decision making power in relation to her.
WITH WHOM SHOULD THE CHILD LIVE
This is the nub of the maternal grandmother’s application. She says that since 2014, the father has demonstrated that he remains abusing alcohol and other drugs, and his behaviour on 14 and 15 May 2016 means that if the child continues to live with him, she is likely to continue to be exposed to the risk of physical or psychological harm from his abuse or family violence. Moreover, she points to the fact that the important protective influence of the paternal grandmother was unable to deflect the father’s alcohol and/or drug fuelled anger on 14 and 15 May 2016, and in any event, the father now lives separately from her, albeit I accept in the same street.
The following factors weight in favour of the regime that presently exists continuing:
·It would maximise the opportunity of the child having a meaningful relationship with her sole remaining parent;
·It would likely maximise the chance of the child maintaining a good relationship with the paternal grandmother;
·It would maintain the living arrangements for the child which have persisted since her mother and sister’s deaths;
·The distance between N Town and F Town makes it difficult for the child to spend time with the father and paternal grandmother if she is living in N Town.
On the other hand the following points favour the maternal grandmother’s proposal or are against the status quo:
·If the child continues to live with the father, I adjudge it as almost certain that she will continue to be exposed to his alcohol and/or drug fuelled behaviours, which on occasion are plainly abusive and constitute family violence. I am satisfied that there is a real risk of physical or psychological harm being suffered by the child in consequence of that exposure;
·The protective feature of the paternal grandmother also living in the same house as the child no longer continues, and in any event it was unable to protect the child on 14 and 15 May 2016;
·The child has expressed a wish to live with the maternal grandmother;
·The paternal grandmother has, on the evidence before me, indicated that she is no longer able to care for the child, which is not surprising given her poor health as at 2014;
·The child has an excellent relationship with the maternal grandmother as discussed above;
·The child has now been living with the maternal grandmother since the end of the mid-year school holidays, and to that extent the change in arrangements has been now in existence for about three months, and the child has presumably settled. To require her to return now to F Town would likely be disruptive for her;
·I assess the maternal grandmother as having an excellent capacity to provide for the child’s needs in all respects;
·The maternal grandmother, although not of aboriginal descent herself, is likely the child’s best gateway to maintaining connection with that heritage;
·Plainly the father has demonstrated poor attitude to his responsibilities of parenthood, given his continued abuse of alcohol and other drugs.
Weighing those factors in the balance tells strongly in favour of the maternal grandmother’s proposal. There will therefore be an order that the child live with the maternal grandmother.
TIME AND COMMUNICATION WITH FATHER
The maternal grandmother proposes that the father should be able to spend time during consecutive days with the child in the N Town area. She also proposes, that the child have liberty to communicate with the father by telephone and text message as she may see fit, but that otherwise the father be at liberty to call the child twice a week. Given that the child appears to have her own mobile phone, the reality is that it would be difficult to structure orders in any other form.
The real question then is whether the child should be able to travel to F Town to spend time with the father. Unfortunately his continued abuse of alcohol and other drugs, and his violence of 14 and 15 May 2016, mean that having the child spend time with the father in that environment will likely expose her to a repetition of such conduct. That cannot be countenanced. Even though it may be for only a few weeks a year, nonetheless the child needs to be protected from the risk of harm which the father poses to her by virtue of his behaviours.
True it is that there is no guarantee, if the child were to spend day time with her father in N Town, that he may not again demonstrate such behaviours, but I assess it as much less likely than in his home environment.
There will therefore be an order permitting the father to spend time during the day for 5 day blocks with the child in N Town, provided he gives appropriate notice to the maternal grandmother of his intentions so to do.
OTHER ORDERS
Otherwise I am satisfied that the orders proposed by the maternal grandmother are in the child’s best interests and will make them.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 October 2016.
Associate:
Date: 12 October 2016
Key Legal Topics
Areas of Law
-
Family Law
0
7
2