Jones and Parton & Anor

[2015] FamCA 518

FAMILY COURT OF AUSTRALIA

JONES & PARTON AND ANOR [2015] FamCA 518

FAMILY LAW – CHILDREN – Final parenting orders – undefended hearing – where the mother makes allegations of family violence against the father – where the mother makes allegations that a child has complained of sexual abuse by the father – where the mother has a history of trauma and substance abuse – unacceptable risk that the children will be exposed to further abuse if ordered to spend time with the father – ordered that the mother have sole parental responsibility – ordered that there be no orders in respect of one of the children – ordered that the father spend no time with the biological child.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant has failed to comply with procedural orders – where the applicant was previously legally represented – where the applicant did not appear at trial to pursue application – where procedural fairness provided to the applicant – leave granted to conduct hearing on undefended basis.

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA and 117(2A).

APPLICANT: Mr Jones

RESPONDENT: Ms Parton

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: DGC 860 of 2014

DATE JUDGMENT DELIVERED: 6 July 2015

PLACE DELIVERED: Melbourne

DATE ORDERS MADE: 4 May 2015 & 6 July 2015

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 4 May 2015

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms McCarthy

SOLICITOR FOR THE RESPONDENT: Perry Weston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bonney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders made 4 May 2015

IT IS ORDERED THAT:

1. All previous orders with respect to the children B born … 2009 (“B”) and C born … 2012 (“C”) (collectively “the children”) be discharged.

2. The mother have sole parental responsibility for the child C.

3. The child C live with the mother.

4. The child C spend no time with the father.

5. The father is at liberty to send letters, cards and gifts to the child C, care of postal address PO Box …, Suburb D, Victoria …, and the mother shall ensure any letters, cards and/or gifts sent by the father are given to the child, subject to the mother being satisfied that such letters, cards and gifts are appropriate.

6. There be no parenting orders made in these proceedings in respect of the child B.

7. The appointment of the Independent Children’s Lawyer be discharged within seven days of the date of this order.

8. The mother’s application for the costs of Victoria Legal Aid be reserved and delivered with the reasons for judgment to be provided in due course.

9. All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS ORDERED, BY CONSENT BETWEEN THE MOTHER AND THE INDEPENDENT CHILDREN’S LAWYER, THAT:

1. The mother continue to attend upon a mental health practitioner for the purpose of counselling and therapy until such time as the mental health practitioners considers it no longer necessary.

2. The Independent Children’s Lawyer have leave to provide the mental health practitioner for the mother with a copy of:

   (a)       the Magellan Family Report of Ms E dated 27 April 2015;

   (b)       the Magellan Addendum Report dated 18 December 2014;

   (c)the psychological evaluation of the mother by Dr F dated 29 September 2014; and

   such reports shall not be disseminated further.

AND THE COURT NOTES THAT:

A.The mother does not agree with the contents of Dr F’s report dated 29 September 2014.

Orders made 6 July 2015

IT IS ORDERED THAT:

1. The oral application for costs to be paid by the father to Victoria Legal Aid is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jones & Parton & Anor 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 MELBOURNE

FILE NUMBER: DGC 860  of 2014

Mr Jones

Applicant

And

Ms Parton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern C, a child of the relationship aged two years and B, aged five years, a child of the mother’s previous relationship. The applicant is the father of C and stepfather of B, but is referred to as “the father” for the purposes of these reasons for judgment. Where there are references to B’s biological father, he is referred to as such.  The applicant father failed to attend Court without explanation.

2. The mother sought leave to proceed with her application for parenting orders in her Amended Response to the father’s Initiating Application.   The mother sought to discharge the previous interim parenting orders made for B and did not seek any parenting orders for B.

3. Leave was granted to proceed on an undefended basis on 4 May 2015.  Final parenting orders were made regarding C and these are my reasons for making the orders.

4. The proceedings were initiated by the father in an Initiating Application filed in the Federal Circuit Court at Dandenong on 25 March 2014. By order of 29 April 2014, the proceedings were transferred to this Court.  

5. The father’s application, which was not pursued, was that he have sole parental responsibility for both children, that the children live with him and spend time with the mother as deemed appropriate by the court. This was not set out in any application in this Court as the father did not comply with procedural orders made on 9 February 2015.  The father was represented by lawyers until a Notice of Ceasing to Act was filed on 15 April 2015.

Background

1. The parties began living together in March 2011 and the child C is the biological child of the applicant and respondent.  The mother is aged 31 years and cares for the children.  The father is aged 43 years and is employed as an Operations Manager. The parents separated in August 2013 and interim orders were made in the Federal Circuit Court by Judge Small on 29 April 2014.  Those orders provided for the children to live with the mother.  The father’s time to be spent with the children was reserved and an Independent Children’s Lawyer was appointed.  The proceedings were transferred to the Magellan List of the Family Court and the mother was ordered to undertake random supervised urine screens.

2. Consent orders were made before the Senior Registrar of this Court on 9 July 2014.  Dr F completed a psychological assessment of both parents.  Both parents were to undertake random supervised urine screens pursuant to those orders.  The order provided for the parents to apply to G Contact Centre so that C could spend supervised time with the father in the event that it was determined at the next hearing that it was appropriate.

3. On 21 January 2015 the Senior Registrar ordered that C spend supervised time with the father at G Contact Centre for not more than two hours per fortnight.  The father has not spent time with the children since separation and the mother gave evidence before me that she had registered with G Contact Centre and that there had been no requests for her to make C available to spend time with the father.

4. The father has not complied with procedural orders made by Justice Stevenson on 9 February 2015 when the matter was listed for trial.  Pursuant to those orders a family report was completed by Ms E, dated 27 April 2015.

Procedural fairness

1. Leave was granted on the day of the hearing for the mother to file an affidavit from her solicitors outlining the steps taken to notify the father of her amended response and final orders sought.

2. The father initiated these proceedings in the Federal Circuit Court by filing an initiating application on 25 March 2014.  Interim orders were made there and the proceedings transferred to this Court where the father was legally represented.  Since January 2015, there have been no further documents filed by the father and accordingly no evidence filed by him in the trial.  The father has failed to comply with procedural orders and has not communicated with the Court. 

3. The father did not participate in the interview with the family consultant for the report ordered for the trial.  The solicitor for the mother sent correspondence to the father by email and DX Toll express mail on 24 April 2015.  The correspondence was sent to the father’s last known email and residential addresses as provided in the Notice of Ceasing to Act filed by his former solicitors on 15 April 2015. 

4. The correspondence forwarded to the father gave notice that in the event of his failure to appear at the final hearing on 4 May 2015 that the mother intended to seek leave of the Court to proceed to finalise all extant applications on an undefended basis.  Enclosed with the correspondence was the minute of final parenting orders sought by the mother and no response was received from this correspondence.[1]

   [1]          Affidavit of the solicitors for the mother filed 4 May 2015.

5. The father has not communicated with the Independent Children’s Lawyer or this Court in relation to these proceedings.

6. The father has filed no evidence in this Court other than an affidavit which was filed on 19 January 2015. This affidavit responded to an affidavit of B’s paternal grandfather which was filed in this Court.  The father’s affidavit is drawn on the proforma of the affidavit used in the Federal Circuit Court at Dandenong and would appear to have been filed for the purposes of the  hearing before the Senior Registrar on 21 January 2015.

7. I am satisfied that the mother has provided sufficient notice to the father of her proposals for orders which are the same (with one exception which favours the father) as the orders sought in her Amended Response.  This was served on the father through his solicitors when he was legally represented.  The only change in the proposal from the amended response is the proposal that C receive gifts and cards from the father.

8. The Independent Children’s Lawyer supported the orders sought by the mother and did not oppose the application by counsel for the mother to proceed with the hearing in the absence of the father having regard to the fact that he had not complied with procedural orders, failed to attend for the interview with the family consultant, failed to attend Court and had not communicated with any of the parties or the Court about the hearing.

9. Accordingly, I am satisfied that the father has had sufficient notice of the mother’s proposals and that the father is aware of the hearing but has elected not to attend.  I am satisfied that the father is aware of the date of the hearing and the nature of the proceedings and that he has had the opportunity to participate.  I am satisfied that the father has been accorded procedural fairness and that it is appropriate to proceed in his absence.

Mother’s response

1. The mother filed an Amended Response to the father’s Initiating Application on 10 April 2015 which was served by letter upon the father’s solicitors at the time. 

2. The minute of final parenting orders sought by the respondent mother which was served on the father is as follows:

   ·That all previous orders with respect to both children be discharged;

   ·The mother have sole parental responsibility for the child C;

   ·The child C live with the mother;

   ·The child C spend no time with the father;

   ·The father be at liberty to send letters, cards and gifts to the child C and the mother shall ensure any letters, cards and/or gifts sent by the father are given to the child, subject to the mother being satisfied that such letters, cards and gifts are appropriate;

   ·There be no parenting orders in respect of B;

   ·All extant applications be dismissed;

   ·The appointment of the Independent Children’s Lawyer be discharged.

3. Counsel for the mother also submitted that the mother agreed to two further orders proposed by the Independent Children’s Lawyer which were as follows:

   ·    That the mother continue to attend upon a mental health practitioner for the purpose of counselling and therapy until such time as the mental health practitioners considers it no longer necessary.

   ·    That the Independent Children’s Lawyer provide to the mother’s mental health practitioner copies of the Magellan family report dated 27 April 2015 and the reports of Dr F;

   ·    That the Independent Children’s Lawyer be discharged within seven days.

Evidence and standard of proof

1. For the purposes of the hearing the mother relies upon the following documents:

   ·    Amended Response filed 10 April 2015;

   ·    Affidavit of the mother filed 10 April 2015;

   ·    Trial affidavit of the mother filed 23 April 2014;

   ·    Affidavit of Ms H, (maternal grandmother of B) filed 10 April 2015;

   ·    Affidavit of Ms I filed 13 April 2015;

   ·    Affidavit of Mr J, B’s paternal grandfather filed 12 November 2014;

   ·    Affidavit of the solicitor for the mother filed 4 May 2015 regarding service;

   ·    Notice of Child Abuse filed 23 April 2014;

   ·    Magellan family report of Ms E dated 27 April 2015;

   ·    Magellan report from the Department of Human Services for hearing 28 January 2015 dated 18 December 2014 (addendum report) and previous reports from the Department of Human Services for hearings on 29 April 2014 and 9 July 2014;

   ·    Intervention order made 6 June 2014 (annexure EMP-1, 2, 3 of the mother’s affidavit filed 4 July 2014 in the Federal Circuit Court, Dandenong);

   ·    Exhibit A-statement of the mother made to Victoria Police on 20 June 2014;

   ·    Case outline of the mother filed 28 April 2015.

2. The mother also gave oral evidence at the hearing that she had not been required to take C to the G Contact Centre and that she had been told that she was on a waiting list in January 2015.  The mother also gave evidence that she had seen a psychologist for five sessions and had been referred to a mental health nurse whom she sees regularly and that she is prepared to continue to see the mental health nurse and her understanding is that this service is funded through a mental health plan.

3. On the other hand, the father did not appear at court to identify any affidavit or other material in his case.

4. Counsel for the Independent Children’s Lawyer did not file an outline of case because the father had failed to file material.  She supports the mother’s proposals and does not challenge her evidence. 

5. In these circumstances the only evidence properly before the court for the purposes of the undefended hearing is the material outlined above in the mother’s case which is admitted into evidence unchallenged.

6. The relevant standard of proof is the balance of probabilities.  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:

   (a)The nature of the cause of action or defence; and

   (b)The nature of the subject matter of the proceedings; and

   (c)The gravity of the matters alleged.

7. I am satisfied that the mother has provided evidence to prove her case on the balance of probabilities.  The father has not elected to counter her evidence with other credible evidence.  

Evidence

1. I accept the unchallenged evidence of the mother in her affidavit material and the evidence of B’s grandparents, namely B’s paternal grandfather and the maternal grandmother of the children.

2. I accept that evidence in the following terms:

   ·the applicant and respondent began living together in March 2012 at which time the mother was pregnant with the child C and B was approximately 2 ½ years of age;

   ·the applicant and respondent separated under one roof in August 2012 and the respondent left the residence on 6 September 2013. They shared a residence but did not resume the relationship between November 2013 and 17 February 2014 when the respondent entered crisis accommodation at a women’s refuge with the children;

   ·the applicant was violent and threatening towards the respondent, denigrating her and throwing things at her.  At times he would refuse to allow her to leave by hiding her car keys and on 21 January 2013 he pushed her to the ground and wrapped a belt around her neck. The respondent was fearful that he would not let go and the following day he told her that she was “lucky” because he “almost went through with it”.

   ·in mid-2013, the applicant threatened to harm and kill the respondent, who lived in constant fear for her safety and that of the children;

   ·the applicant made threats to harm the respondent in the presence of the children and made threats that he would separate the children and force the respondent to leave with B but without C. For example, the mother deposes that:

   On an occasion in or about June or July 2013, the father told me that he had “plans” for me. When I asked him what they were, I recall that he stated to me words to the effect of: “chop you into pieces and burn them in the fire, I already have it mapped out”. The father stated this to me in front of [B], who was helping the father carry firewood into the home that the father had cut using an axe.[2]

   [2] Affidavit of the mother at [17].

   ...

   ...[t]he father also said to me that he would ‘go crazy’ if I left with [C]. I recall him saying to me, “you think I’m crazy, well you don’t even know the half of it. You just see what happens to you if you try to take my son anywhere, [Ms Parton].” The father also stated to me that he had “connections” to take [C] “underground” and I would not see [C] again.[3]

   [3] Affidavit of the mother at [37].

   ·the applicant smashed the mobile telephone of the respondent on the ground causing the handset to break into pieces in the presence of the children;

   ·when the respondent told the applicant that she intended to leave with the children on 24 August 2013, the applicant offered to leave so that the respondent could remain in the house but telephoned her later in the day stating that he was intending to commit suicide and intending to steal $11,000 from his workplace to leave for her and the children and then intended to “drive his car off a cliff.”  This was extremely distressing to the applicant because her previous partner, [B’s] biological father, had suicided at a time when the respondent was separated from him and before she met the applicant.  The respondent contacted the police to undertake a welfare check on the applicant and he returned to the family home the next day;

   ·the conflict between them continued until an incident on 6 September 2013 when they argued and the applicant “tipped a can of alcohol over” the respondent and threatened to “knock her out” with a large speaker. The police assisted the respondent to leave the home with B but left C in the home with the applicant;

   ·the applicant obtained an urgent intervention order, by consent without admission of the allegations on an interim basis which included C, although this was not understood by the respondent when she agreed to the order.  This intervention order was ultimately revoked by the applicant who told the Magistrate that the respondent was a good mother and that he was not in any way concerned about the children’s welfare in her care;

   ·C was returned to the care of the respondent by agreement with the applicant 7 days later on 13 September 2013 at the police station.  Ultimately the applicant and the respondent entered into an interim parenting plan which provided for C to live with the respondent and spend time with the applicant each Wednesday and each alternate Saturday. The parenting plan did not include B. The parenting plan worked reasonably well until mid- October 2013 when the applicant told the respondent that he had injured his back at work and had been prescribed strong pain relief medication that made him feel “out of it”. The respondent then supervised the time the applicant spent with C;

   ·the respondent moved into private rental property in November 2013 with the children but did not feel safe and when the applicant offered assistance, she gratefully accepted accommodation with him until she could find more suitable long-term accommodation. The mother did not regard this as a resumption of the relationship. However by mid December 2013 the relationship deteriorated and the children were reluctant to separate from the respondent.

   ·The applicant and respondent attended relationship counselling in January 2014 but this was discontinued after two appointments because the respondent was concerned for her safety;

   ·in January 2014, the applicant continued to threaten to harm the respondent and was often abusive towards her in the presence of the children;

   ·the mother of the respondent observed the applicant teasing B and causing her to become distressed and cry;

   ·the respondent and her mother both note that B never calls the father “dad” or “daddy”;

   ·the respondent and her mother both note a significant improvement in the children’s behaviour, and the maternal grandmother describes the children as “affectionate, outgoing, expressive, relaxed and confident in their relationships with [the mother]”;

   ·following concerns raised by the mother about B’s behaviour and statements made to her by B about conduct on the part of the applicant, on 21 February 2014 B was interviewed by the police Sexual Offences Criminal Investigation Team.  B did not make any statements of complaint against the applicant and the investigation was closed;

   ·when the respondent left the applicant’s property in February 2014 the applicant asserted through his legal representative that he had disposed of the belongings of the children and the respondent, which included the children’s clothing and toys and the ashes of the foetus the respondent  was forced to abort after becoming pregnant to B’s biological father;

   ·on a number of occasions between September and November 2013 the mother of the respondent observed the father driving past her property slowly during daylight hours and at night whilst the respondent and children were living with her.  The mother of the respondent regarded this as stalking behaviour;

   ·when the respondent left the applicant on 7 September 2013 he alleged to the police that the respondent was alcohol and drug affected, but the police allowed her to drive herself and B to the home of the maternal grandmother.  The respondent told the maternal grandmother that the applicant had “tipped alcohol over her” and then called the police for assistance;

   ·the respondent moved into refuge accommodation with the children in February 2014;

   ·the maternal grandmother observed the applicant denigrating the respondent in her presence;

   ·the maternal grandmother describes the following incident regarding  the nature of the relationship between B and the father:[4]

   On an occasion in 2013 when I visited the [Suburb K] property that [Ms Parton] and [Mr Jones] shared, I observed a very disturbing interaction between [B] and [Mr Jones]. [B] was sitting at the dining room table drawing. [B] was quietly concentrating and appeared relaxed and happy. [Mr Jones] returned to the property and sat down at the table with [B]. I observed [Mr Jones] start to bait and tease [B], which he continued to do until [B] became distressed and started crying. I observed [Mr Jones] laughing and he persistently teased [B]. It appeared that he was enjoying the upset he was causing [B]. [Mr Jones] saw me observing his behaviour but he continued regardless...

   ·the maternal grandmother observed the children to be settled and closely attached to their mother being happy in her company after the parents’ separation;

   ·the maternal grandmother is available to support the respondent in her parenting role;

   ·the respondent obtained an intervention order at the Melbourne Magistrates’ Court on 6 June 2014 on behalf of herself and the children for a five-year period.  The applicant did not attend the hearing;

   ·on 12 March 2014 and on further occasions, B made very concerning statements to the mother about the father touching her “private parts” and “hurting” her.  In response to questioning of B by the mother on many other occasions from March until June 2014, the mother became concerned that the father had inappropriately touched B and a genital examination of B by a GP gave the mother further cause for concern. The mother sought medical advice from a general practitioner and assistance and information from the child protection unit of the Department of Human Services. The mother deposes that a paediatric forensic examination of B at the Royal Children’s Hospital was inconclusive.

   ·B was interviewed by police and made no complaint about any sexual abuse by the father; 

   ·the maternal grandmother observes that the respondent is exercising more control over her daily activities, having engaged in casual employment, exercising regularly, and appearing to refrain from consuming alcohol or illicit substances.

   [4] Affidavit of the maternal grandmother at [5](f).

1. B’s paternal grandfather deposes that:

   ·he has spent regular monthly time with B commencing in February 2011 and observing changes in B’s behaviour following the family’s move to L Town for the father’s work. B was observed to become extremely anxious and wanted the mother to pick her up from her grandfather’s house, instead of the father;

   ·he observed B express her dislike for the father towards August 2013, telling the grandparents that she did not like the father “[b]ecause he is not nice”;[5]

   ·he witnessed changes in B’s behaviour that coincided with her comments regarding the father, such as:

   There were other marked changes in [B’s] behaviour that coincided with her disclosures about not liking [Mr Jones]. [B] became reluctant to leave with me when I went to pick her up from [Ms Parton] or from [B’s] child care centre. She constantly wanted [Ms Parton] and also became very clingy with my wife, [Ms M]. This behaviour was very unusual as [B] was previously always very happy to come with me. Despite [B’s] reluctance, once she arrived at my home her demeanour would change immediately and she would want to do the normal activities we did during weekends that [B] was in our home. She did cry occasionally when at our home saying she wanted [Ms Parton], but these were passing moments and her upset was usually quickly resolved by distracting her with activities or conversation. I also noticed that [B] was refusing to get into the bathtub and despite a number of attempts to coax [B] by my wife [Ms M] and I, she simply refused to do so. I discussed these concerns with [Ms Parton] and [Ms Parton] stated to me that she could not think of any likely explanation for [B’s] behaviour.

   ·he observed a significant change in B’s demeanour during the period of the parties’ separation around September 2013, noting that she was more relaxed, and happy and excited to be living with her maternal grandmother;

   ·he never saw signs of illicit substance use in the mother albeit he had experience with such signs given B’s biological father’s addiction;

   ·he speaks highly of the mother’s parenting capacities with respect to B.

   [5] Affidavit of the paternal grandfather at [18].

2. I also accept the evidence of Ms I, Family Violence Case Manager at N Family Violence Service in these terms:

   ·the mother became a client of the service on 28 February 2014 and has since consistently met the criteria of the Comprehensive Risk Assessment Framework Model. She has been having continuing education about family violence and appears now to better understand how the combination of vulnerability and manipulation interact;

   ·the service supported the mother to apply for an Intervention Order against the father and the Manager was present to support her at the hearing on 6 June 2014;

   ·the Manager has observed the mother and the children at playgroup and at home, and deposes that she is an appropriate, attentive and communicative mother;

   ·the Manager deposes that the mother consistently pays her rent and maintains her unit to a very high standard of cleanliness, and that she has achieved her goal of moving out of the refuge unit and into private rental accommodation;

   ·the Manager has observed the mother to become less anxious and fearful over the past six months, consistent with the mother’s own statements.

Reports from DHS in response to request for information

1. DHS in July 2014 concluded the following:

   ·that they had no concerns for the children in the mother’s care;

   ·feedback from other professionals involved with the family about the mother was positive;

   ·the father should engage to be assessed for contact with the children;

   ·no further action be taken.

2. The earlier investigation arose from 17 February 2014 when the father was alleged to have been playing “special games” with B. Further concerns were raised that the mother and the children appeared to be escaping from family violence perpetrated by the father but there was no detail provided. The mother expressed a desire to leave the father because she felt the need to protect the children. She referred to B pointing to her back area and saying she had a “sore bum” and to C hitting people, including himself and his family. B was subsequently interviewed by a member of the Sexual Offences Criminal Investigation Team but no complaints were made by the child and the case was subsequently closed.

3. An interview conducted with the mother on 27 February 2014 demonstrated that the mother was “completely attentive and appropriate with her children”. The mother appeared to answer questions honestly and was very interested in being linked with appropriate supports for herself and the children.

4. An interview conducted with the father on 12 March 2014 indicated that he was “convincing in his account of events, and the portrayal of his relationship with [the mother]”. He admitted to emotional abuse of the mother but denied physically abusing her or sexually abusing B. He stated his significant concerns for her traumatic past relationship and unresolved issues, her mental health, tendency to self-harm, and her ongoing substance use. The father spoke of the efforts the parents had made to attempt to resolve the issues in the relationship.

5. The report writer noted that concerns raised regarding the mother were in the context of the professional not having seen the mother alone or while caring for the children. Contrary to those concerns, the mother engaged appropriately with professional support for herself and her children where necessary.

6. The child protection issues were found to have been substantiated where the Department was satisfied that the children had been subjected to emotional harm as a result of the violence between the parents.

Addendum Report from DHS in response to request for information 

1. An evaluation of the mother was completed by clinical and forensic psychologist, Dr F in September 2014 and concluded that the mother appeared to have a history of substance abuse. Dr F’s conclusion was that the mother was “a moderate-high parenting risk”.  He raised concerns that the mother suffers from a personality disorder although this could not be confirmed.  He reported that the mother denied substance abuse but that her history and presentation raised questions about the veracity of these claims.

2. Dr F recommended randomised drug screening. He recommended intensive psychological treatment with an experienced clinical psychologist over a period of two years to address personality and substance abuse issues.

3. Dr F assessed the father at the same time and found that he was a “straight forward” man with no formal disorder but “some vulnerability towards impulsivity”. He assessed the father as “low risk of sexual abuse” and found him to have “normal” parenting capacity.

4. Dr F’s report triggered an investigation by child protection about the mother’s care of the children.  An addendum report from DHS dated 18 December 2014 concluded that concerns identified for the children in the care of the mother as a result of the evaluation conducted by Dr F could not be substantiated.

5. The mother conceded that she had a past history of drug abuse and that she had provided supervised urine drug screens and agreed to complete further screens.

6. The case worker reported that the mother’s presentation and behaviour was consistent with that of a person who had experienced significant trauma through her family violence relationships.

7. The mother in her interview spoke of B’s complaints about sexual abuse, as well as C’s physical aggression. She advised that she was concerned for the children having contact with the father.

8. The Department contacted the mother’s previous counsellor who last saw the mother on 13 October 2014. The counsellor noted that the mother was very focussed on the children and their needs, and as such she had not presented with symptoms of Borderline Personality Disorder. The counsellor also noted that the mother was future-focussed but that her main attention was always on the children.

9. The Department consulted the children’s Child Care Manager who provided information that the children were appropriately settled at daycare and that she had no concerns for the children’s presentation or appearance, nor for the mother.

10. The mother’s allocated family violence worker advised DHS that the mother’s parenting skills were “excellent” and that she had no concerns for the mother using substances, as she had previously made unannounced visits and never had concerns about the mother’s presentation or the home environment. The worker noted the support provided by the mother’s family and B’s paternal grandparents. She reported that C had become much more interactive and sociable within the period of her visits, and that B was “moving on” from the trauma.

11. DHS contacted the mother’s psychologist, who is not named, and the DHS report indicates that he disagreed with the report completed by Dr F and that he did not see any real risk to the children with the mother, and that the mother had strong family and professional support. He advised DHS that he disagreed with the possible diagnosis of Borderline Personality Disorder, stating that he believed the cause of the indicators for the mother was severe traumatisation.

12. The mother’s mental health nurse told DHS that she had been “disgusted” by the report of Dr F.  She advised that the reported symptoms and observations of the mother were consistent with trauma, but the trauma had not been mentioned in Dr F’s report.  She also advised DHS that the mother had never been observed to present with symptoms consistent with Borderline Personality Disorder. The mental health nurse told DHS that she had no concerns regarding substance use by the mother and noted that the mother had undertaken regular supervised urine drug screens.

13. She reported to DHS that the mother was beginning to flourish outside of the abusive environment and that she was focussed on the long-term well-being of the children. She appeared to be committed to minimising the effect of the abuse on the children.

14. The DHS addendum report concluded:

    ·the mother has been consistent in her presentation with all services involved with no concerns identified for her presentation to suggest current substance use or bipolar disorder;

    ·the mother has experienced significant trauma as a result of her relationship with the applicant, as well as historical trauma which has led her to be perceived as having symptoms similar to bipolar disorder;

    ·the mother has maintained focus on the needs and best interests of the children at all times;

    ·the mother has been consistent in the concerns she has for the children in the applicant’s care as a result of family violence, physical and emotional abuse and allegations of sexual abuse;

    ·no concerns have been identified by any of the professional services involved for the children in the mother’s care.  No concerns have been identified by anyone involved for the mother’s presentation or relationship with the children;

    ·the children have been observed to have flourished in the mother’s care since leaving the relationship with the applicant and not having contact with him;

    ·the mother will continue to engage with supports that will ensure that any manifestations of harm to the children can be addressed in an appropriate and timely manner.

15. The report notes that child protection had not interviewed the applicant as part of this current involvement.

16. Finally the report concludes:

    It has been assessed that there is a likelihood of the children suffering physical, emotional and sexual harm if they were to resume contact with [the applicant] in the future. It is recommended that the children remain engaged with support services to address and minimise the impact of past harms on them.  It is currently assessed that it would not be in the children’s best interest to resume contact with [the applicant] until all further assessments are completed in relation to the risks posed by him. At this time it is recommended that the children not have contact with [the applicant].  If following further assessments of [the applicant], the court orders contact to occur, it would be recommended by child protection that his contact with [C] is supervised. Given [the applicant] is not [B’s] biological father and there has not been assessments completed to determine the nature of their relationship, it is recommended that [the applicant] does not have contact with her.

    The Department of Human Services Child Protection will not be intervening with the family at this time and will be ceasing protective involvement as it is assessed they are safe in [the mother’s] care and have been linked into support services.

Report of the Family Consultant

1. The Magellan Family Report dated 27 April 2015 was prepared by family consultant, Ms E, pursuant to orders of Stevenson J on 9 February 2015. The father’s lawyers advised the report writer that they had notified him of the scheduled assessment, but the father did not attend for his appointment.

2. The report detailed the history between the parents.   The writer noted that the mother had questioned B about whether anybody had touched her “private parts” and that B had stated that the father “had done so”.  The writer noted that the mother had taken B to the doctor.  She noted that the mother reported that B continued to complain of a sore vagina and in response to a question from the mother about what had happened, B had said that the father had “poked it in with his finger”.  The report writer noted that the mother had contacted DHS and that when B was interviewed by the police she did not make any “disclosures”. 

3. The writer noted the mother’s disagreement with Dr F’s assessment.

4. The mother in her interview said that the father was not a “father figure” to B and that he took pleasure in upsetting her. She indicated that C has a right to an ongoing relationship with his father, but raised a number of concerns about that relationship, particularly in light of B’s allegations against the father.

5. The mother reportedly said that she had kept a record of the father’s abusive behaviour and that she “didn’t know the person [she and the children] were living with at all”. The mother reported that B is frightened that the father will find out where they are living but that the children’s behaviour has improved markedly since having no contact with the father.

6. When B was interviewed, she said the father was not nice because “all they did is they fighted… my mum and [the father]”. B stated that the father had not been mean to her.  She was observed to be caring and affectionate towards C.

7. C was not interviewed due to his age but was observed to be inquisitive and energetic, and engaged in age-appropriate activities.

8. The mother and children were observed at play together, where the mother was observed to have a “gentle, nurturing and attuned manner” of interacting. She reminded the children of rules and boundaries and encouraged sharing. While the father did not attend to be observed with the children, the mother expressed significant reservations about leaving the father to play with the children, particularly with B, as the mother was concerned it would breach her trust.

9. The report writer warned that the evidence should be tested so as to lead to a finding that sexual abuse has or has not occurred in order to determine the parents’ parenting capacities. At [48] of the report, the writer advised:

   In the event that it is found, on the balance of probabilities, that [B] was sexually abused, then [the mother’s] actions and current attitudes can be viewed within this context and are, therefore, understandable and protective. Alternatively if, on balance, it is found to be unlikely that [B] has been exposed to sexual abuse by [the father], [the mother’s] behaviours would be viewed as highly concerning... it would certainly suggest a highly distorted ability to appropriately assess risk to the children and, as a consequence, raise strong questions regarding [the mother’s] ability to support the children in their relationships with [the father]… [the mother’s] inability to consider any benefit to the children from spending time with [the father], under any circumstances, demonstrates a lack of insight into the children’s broader and longer term emotional and psychological wellbeing.

10. The report writer ultimately recommended that, without a further assessment of the father, C spend supervised time with the father, and further consideration be given to B spending supervised time with the father at a time when the mother has commenced in therapeutic treatment.

Conclusions about the evidence

1. On all the evidence I accept on the balance of probabilities that the children have been impacted negatively by the threatening conduct of the father towards the mother which they have witnessed on occasions.  The distress caused to the mother by the father’s conduct has been observed by the children.  The mother remains fearful of the father. The father acknowledged to DHS that he was emotionally abusive towards the mother in the following terms:

   [Two DHS workers] met with [the father] for an office interview on 12 March 2014. [The father] was convincing in his account of events, and the portrayal of his relationship with [the mother]. [The father] stated he was in disbelief about [the mother] and the children’s disappearance from his life, had not expected it, and yet it was [the mother’s] pattern of behaviour to flee and then return. [The father] stated his significant concerns for [the mother’s] traumatic past relationship and unresolved issues, her ongoing mental health state, her tendency to self-harm, and her ongoing substance use. [The father] admitted to emotional abuse of [the mother] but denied physical abuse. [The father] rejected the suggestion that he had sexually abused [B]. [The father] detailed all the ways in which he had worked on his own, and with [the mother], to resolve their relationship issues, and felt that [the mother] had fled just at the time that [the mother] was to engage in further relationship counselling, which had perhaps been too confronting for her.

2. The mother’s evidence that B complained to her about the father touching her “private parts” has not been tested or challenged. However, having regard to the seriousness of these allegations no finding can be made on this evidence which was elicited from the child by the mother and which has not been repeated by B to DHS or the police.  There is no evidence that the mother has fabricated this evidence and her response was reasonable in all the circumstances. The father denies the allegations and has not been interviewed by DHS in the most recent investigations of the mother.

3. I accept the untested evidence of Dr F that the father was assessed as being a “low risk of sexual abuse” and that he had “some vulnerability towards impulsivity”.

4. Counsel for the mother emphasised that the mother did not accept Dr F’s assessment of her.  DHS did not share the concerns about the mother raised in Dr F’s report after further investigation of the mother.

5. It must be emphasised that the evidence of Dr F, which was filed in an affidavit on 27 February 2015, remains untested. DHS do not accept the conclusion of Dr F in his evaluation of the mother having regard to the efforts made by the mother and their investigation which involved consulting other professionals who have been dealing with the mother and the children over a considerable period of time.

6. I accept the evidence of the mother’s drug rehabilitation and good parenting skills as outlined by the treating professionals.  I accept the evidence of the family consultant which is unchallenged and uninformed by any further assessment of the father. The evidence of the family consultant is consistent with the evidence reported by DHS.

1. The mother has demonstrated that she is a capable and caring parent who has acted protectively for both children having regard to the serious issues about the conduct of the father raised by B.

The applicable law

Legal principles 

1. In deciding to make any parenting order, the child’s best interests must be the paramount consideration under s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC of the Act. Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

The primary considerations

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 primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[6]

   [6] Family Law Act 1975 (Cth) s 60CC(2A).

3. The father has not seen the children since February 2014 so that a meaningful relationship between the children and the father does not currently exist. For whatever reason, the reality is that the father has not taken the opportunity to spend supervised time with C after interim orders were made.   

4. The father is not pursuing any parenting orders for either child. 

Abuse and family violence

1. The term “abuse” in relation to a child is defined in s 4 of the Act as:

   (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.

2. “Neglect” is not defined in the Act.

3. “Family violence” is defined as:

   violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.[7]

   [7] Family Law Act 1975 (Cth) s 4AB(1).

4. The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[8]  Some examples of situations that may constitute a child being exposed to family violence include:

   (a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

   [8] Family Law Act 1975 (Cth) s 4AB(3).

5. I accept the submissions of counsel for the mother that whilst the mother conceded that there might be benefit for C to have a relationship with the father that this consideration should be reduced because of the father’s violence towards the mother in the presence of the children and his teasing of B.  This has also occurred in the presence of C.  I accept that there was a significant impact on the mother from the father’s violence which also led to the children being in great distress when she left the relationship.  I accept the evidence that the children have settled since the mother found a safe place for them to live and there is significant evidence of the benefit to the children of a meaningful relationship with the mother.  This is having regard to the fact that she has been their primary carer since birth and that she continues to provide for their development in a manner which has been beneficial on the basis of the reports from DHS and the family consultant.

6. The mother’s evidence is bolstered by the evidence of the biological paternal grandfather of B, and the evidence of the maternal grandmother about the attitude of the applicant father towards her and B. 

7. B’s biological father is deceased and therefore there is no relationship for B with her biological father. However the risk of harm to B because of her exposure to family violence in the past militates against her spending time with the father who has not had a good relationship with her having regard to the history and her complaints to the mother about his conduct.  Although there is no finding that the father has sexually abused B, the evidence about her complaints to the mother about inappropriate sexual touching is concerning. 

8. Counsel for the mother relied upon the intervention order made on 6 June 2014 for a period of five years in favour of the mother and both children.  The father did not contest the application which referred to serious allegations of violence.  These included the following:

   ·    The father has subjected the mother and children to escalating family violence during the course of the relationship until the mother left;

   ·    The father regularly vilified the mother verbally within the hearing of the children, pushed her whilst she was holding C and threatened to punch her in the face whilst holding a clenched fist and strangling her on the bed for approximately 30-40 seconds;

   ·    Threatening to throw her out with B and stop her from taking C anywhere;

   ·    On 23 January the father made comments in reference to a new blender and referred to considering if he “could get away with chopping your body parts small enough to blitz and then pour down the sink”;

   ·    The father strangled the respondent with a belt and injured her causing a cut lip and bruises to her face and neck;

   ·    The father stalked the respondent;

   ·    The father sexually assaulted the respondent and attempted to drug her with a “date rape drug a number of times”.

9. The mother deposes to leaving the home in which she lived with the father to live in a women’s refuge because of her fear of violence from the father. 

10. The affidavit evidence also reveals behavioural improvements in both children following the cessation of contact with the father. C was previously reported to be physically aggressive and was seen to pinch the dog and hit himself and members of his family. B was reported by the mother to wet the bed and to request to be rocked like a baby. The mother’s evidence is that these behaviours have abated.  I accept all the evidence about the father’s threats and violence towards the mother with the exception of the serious allegation of sexual assault on the mother which evidence is untested and there is no evidence of any complaint to police.

11. On all the evidence in this case I am satisfied that greater weight must be given to the need to protect C from physical or psychological harm from being subjected to or exposed to abuse and family violence  from the father.  The mother recognises that there might be benefit to C in having a relationship with the father but there is scant evidence of a meaningful relationship between the father and C in circumstances where C has witnessed episodes of violence against the mother perpetrated by the father and chronic denigration of his mother by his father.  The considerations of protecting the children from family violence outweigh the benefit of C having a meaningful relationship with his father in the absence of any other assessment of the father.

The additional considerations

1. The additional considerations are listed at s 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case. I have considered the additional considerations in the context of the primary considerations.

Section 60CC(3)(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

1. Having regard to C’s age, being only 2 years old, his views are not relevant here and the issue of protection from family violence outweigh any wishes of the child.

Section 60CC(3)(b): the nature of the child’s relationships with each of the parents and other persons

1. C was very young when the parents separated and has not had a significant opportunity to develop a relationship with the father. He has a strong relationship with the mother, B, and the maternal grandmother.  He has close relationships with the extended maternal family.  The mother has been his primary carer since birth and C’s emotional attachment to her is secure and very strong. 

2. There is no report from the father about any assessment or treatment for anger and violence.  In these circumstances where on the unchallenged evidence there has been a history of persistent family violence perpetrated by the father, witnessed by the children, there is an unacceptable risk of the children being exposed to further incidents of family violence and inappropriate conduct by the father. 

3. C’s relationship with the father has been compromised by the incidents of family violence he has witnessed. 

4. There is no meaningful step father relationship between B and the applicant. There is evidence of the applicant distressing B and her relationship with the applicant has been insecure and undermined by her statements about inappropriate conduct by the applicant.

Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child

1. The father has failed to participate in these proceedings or in the assessment with the family consultant and has not pursued his application.  On the unchallenged evidence the father, by his conduct, has compromised opportunities to participate in making decisions regarding C and has had little input into decisions affecting C.

Section 60CC(3)(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

1. I accept the submission of counsel for the mother that the mother has fulfilled her obligations to maintain the children to the best of her financial capacity and financially supports the children save for the child support contribution made by the father in support of C.

2. The father has paid child support in the sum of $53 per week in accordance with the assessment of the Child Support Agency.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from either of his parents or any other person with whom the child has been living

1. There is no application before the Court that would tangibly change the children’s circumstances.

Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. There is no evidence that the mother does anything other than completely fulfil the children’s needs.  The father does not pursue his application and thus it is not necessary to consider his capacity to provide for the children’s needs.  If this were necessary, on the evidence before me it is questionable whether the father has the capacity to meet the emotional and psychological needs of the children having regard to his lack of insight and empathy for the children witnessing his aggressive conduct towards the mother.  At best he has disregarded the needs of the children in the past.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I accept that the mother has demonstrated a responsible attitude towards her obligations and duties as a parent.  On the untested evidence, she has protected the children by removing them from a violent situation in the household of the applicant, causing her the inconvenience and difficulty of living temporarily in a refuge. She has sought appropriate professional intervention for herself and the children, including responding to B’s complaint by consulting a GP when she complained of a sore vagina.  The mother has engaged with professionals and cooperated with the DHS investigation.

2. The father has not demonstrated a responsible attitude to the children and his responsibilities as a parent having regard to the children being exposed to his violence towards the mother.

3. The father has alleged that the mental health of the mother is unstable and that she uses illicit substances which she categorically denies.  I accept that the mother has in the past engaged in self-harming behaviours on her own account during periods of extreme stress and trauma in her life surrounding the death of B’s biological father and as a result of family violence in the relationship with the applicant.  This did not occur in the presence of the children and I accept that the mother has sought professional and appropriate support to address these issues.

4. Dr F’s concerns about the mother’s symptoms of Borderline Personality Disorder are not shared by the professionals who have been more consistently involved in supporting and observing the mother since she was assessed by Dr F. In the Department of Human Services report, the mother’s mental health nurse and treating psychologist both pointed to her significant history of trauma as a reason for the mother exhibiting symptoms of Post-Traumatic Stress Disorder. There is no evidence that the mother is a risk to the children.

5. The evidence about the allegations of sexual abuse remain untested and B made no complaint when interviewed by police.  I make no finding about these allegations having regard to the seriousness of what the mother alleges, the denials of the father and in the absence any evidence from the father.

6. I accept the opinion of the family report writer that the mother has appropriate and gentle parenting capacities, with an ability to reinforce rules and boundaries where necessary.  I also accept the opinions in the DHS report where the mother is consistently reported to be attuned to the children’s needs, such as not speaking freely about her relationship with the father when they are present. The children have also been observed to be clean and dressed neatly in the mother’s care.

Section 60CC(3)(j): any family violence involving the child or a member of the child’s family

1. As outlined previously, on the untested evidence, the children have been exposed to persistent family violence by the father during the relationship and post separation. The children have been exposed to many incidents of physical and verbal abuse by the applicant.

Section 60CC(3)(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 nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; and any other relevant matter

1. The mother obtained an intervention order in her favour which includes the children as affected family members.  The order is in force until 6 June 2019 and the allegations in the mother’s complaint were not challenged by the applicant. The mother’s complaint included serious allegations against the applicant. These include instances of verbal abuse of the mother by the applicant in the presence of the children, pushing the mother whilst she was holding C, attempting to strangle the mother and threatening to punch her in the face whilst holding a clenched fist, threatening to kill her in graphic terms and stalking, drugging her and sexually assaulting her.  The serious complaints remain untested allegations by the mother.  The father has not been charged with any criminal offending against her but the serious complaints made for the purposes of obtaining the intervention order were not contested by the applicant.  The mother made a statement to police (Exhibit A) dated 20 June 2014 about alleged breaches of the intervention order by the applicant contacting her via text messages.  Many of these messages were not threatening but there was a prohibition on the applicant contacting the mother.  There is no evidence that the applicant was charged with breaching the intervention order.

2. As the evidence was untested I do not make any finding about these serious allegations made in the mother’s complaint but I accept the mother’s case on the balance of probabilities that there has been chronic verbal abuse and accompanying threats of a serious nature against her by the applicant in the presence of the children, sufficient to cause the mother to be justifiably fearful for her safety.  This is corroborated by the fact that she was required to leave the applicant to live in a refuge with the children.

Section 60CC(3)(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

1. The applicant has not sought to pursue his application or make any proposals for the children.

2. I am satisfied that it is not in the best interests of B to make any parenting orders having regard to the limited relationship that she has had with the applicant.  

3. I am satisfied that it is in the best interests of C to make orders to give effect to the proposals of the Independent Children’s Lawyer and the mother. This will allow the mother to continue with her rehabilitation with the security of court orders for the protection of C, which will hopefully put an end to further proceedings.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

1. The applicant has chosen not to pursue his application and in those circumstances there is no evidence about any changes to his behaviour or attitude which might be taken into account.

Parental responsibility

1. The question of parental responsibility is not relevant to B as there is no application for parenting orders and no parenting orders will be made.

2. Section 61C of the Act provides that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

3. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child 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.

4. The father made an application, which has not been pursued, for sole parental responsibility for C.   

5. As previously outlined, the mother is seeking an order that she have the sole parental responsibility for C. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

6. The court is to apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. This flows from s 61DA(1) of the Act because I shall be making a parenting order regarding C.

1. However, pursuant to s 61DA(2) I am satisfied that the presumption does not apply because the father has engaged in family violence towards the mother which was witnessed by the children.  Whilst I am considering this presumption in relation to C only, it is also relevant that B, who is a member of C’s family, has been subjected to inappropriate conduct by the father which has caused her distress in the presence of C. This impacts upon C.

2. In addition, s 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 the parents to have equal shared parental responsibility for the child.

3. It is clear in this case that the mother remains fearful of the father and despite having the benefit of an intervention order in her favour is concerned about sharing any parental responsibility with him in circumstances where she has been the subject of intimidation and threats from him in the presence of the children.  It is clear that the parenting responsibility in relation to both B and C will be exercised by the mother as the parent who has provided them with continual support in accordance with the reports from the DHS which indicate that she protected the children from violence, and the report of the family consultant.

4. In any event, the father has demonstrated very clearly to this Court that he has not been able to exercise appropriate parental responsibility, not only by his past behaviour, but also by choosing not to participate in interviews with the family consultant or in the hearing of these proceedings which are fundamental to the best interests of the children.

5. Counsel for the mother submitted that the father has financially supported C since separation but that the most recent child support payment was not made.  I accept that the father has provided financially for C in the past but there is no evidence about his proposals for the future.   

6. Accordingly I am satisfied that it is in the best interests of C to make an order for the mother to have sole parental responsibility.

Conclusion

1. No parenting orders are sought for B and it is appropriate in all the circumstances to discharge the previous orders made for B on an interim basis as the father is not pursuing his application.

2. It is inappropriate to make any finding regarding the allegations of the mother about what has been interpreted as inappropriate sexual conduct by the father towards B because the evidence remains untested.  B has made no complaint to any other person including police and the father denies the allegations.

3. I accept the untested evidence of the mother on the balance of probabilities that C needs to be protected from the father having regard to the history of family violence and in the absence of any proposals or evidence from the father.

4. The mother’s proposals are supported by the Independent Children’s Lawyer and the evidence of DHS and the family consultant.  I am satisfied that they are in the best interests of the children.

Costs

1. At the conclusion of the hearing, leave was granted for counsel for the mother to make an oral application for the father to pay the costs of the hearing and the preparation for the trial.  Counsel did not specify the amount of costs to be paid to Victoria Legal Aid who had funded the mother’s case.  Counsel submitted that because the father was the applicant and had failed to participate in the process and failed to attend the hearing that it was appropriate that he pay the costs of the mother’s solicitors, Victoria Legal Aid.  Counsel for the mother relied upon some text messages sent to the mother and referred to in her police statement (Exhibit A) where he indicated that he was “earning nearly $3000 a week and potentially more” as information regarding the financial circumstances of the father.  Counsel for the mother conceded that there was no evidence before the Court as to the mother’s financial circumstances. 

2. The general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which would justify such an order.[9]

   [9] Family Law Act 1975 (Cth) s 117.

3. I have had regard to s 117(2A) of the Act which mandates the factors to which the Court must have regard in considering whether to make an order for costs. There is insufficient information before me about the financial circumstances of the parties but I note that the mother was in receipt of assistance by way of legal aid without any further evidence about the terms of the grant of that assistance to the mother.

4. The conduct of the parties to the proceedings is relevant and the father has failed to provide any explanation for his non-attendance at court or his failure to participate in providing information to the family consultant.

5. There is no evidence of any offer in writing by the father to settle the proceedings or the terms of any offer, but the mother has been wholly successful in the proceedings and there is no evidence of the proceedings being necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.

6. The mother’s application for costs of this hearing and the preparation for the trial is refused for the following reasons:

   ·    There is no evidence of the financial circumstances of the parties;

   ·    The mother was effectively an applicant for an order in her own right having regard to her response and has been wholly successful;

   ·    Serious allegations remain untested.

7. It is a discretionary matter as to whether an order for costs should be made and I am not satisfied that there are circumstances here which would justify departing from the general rule that each party should bear his or her own costs of the proceedings under the Act.

8. Accordingly the application for costs to be paid by the father to Victoria Legal Aid is refused.  

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 6 July 2015.

Associate: 

Date:  6 July 2015