Kassis and McKinley

[2020] FamCA 523

FAMILY COURT OF AUSTRALIA

KASSIS & MCKINLEY [2020] FamCA 523

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental Responsibility – Where the father has disengaged from the proceedings – Where the father has perpetrated family violence against the mother – Where there is concern as to the father’s drug use – Orders made as sought by the mother.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Blanch & Blanch and Crawford (1999) FLC 92-837
G & C  [2006] FamCA 994
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Ms Kassis

RESPONDENT: Mr McKinley

INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

FILE NUMBER: PAC 5913 of 2016

DATE DELIVERED: 30 June 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Finch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Marsdens Law Group

Orders

1. The mother shall have sole parental responsibility for the child X born … 2010 (“the child”).

2. The child shall live with the mother.

3. The child shall spend no time with the father and have no communication with the father.

Further Orders

1. The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the child.

2. Pursuant to section 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X (born … 2010).

3. The Australian Passport issued to the child shall be provided to the mother to hold on behalf of the child.

4. The child be permitted to travel outside the Commonwealth of Australia with the mother for a holiday during school holiday periods without prior notice to or permission of the father.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5913 of 2016

Ms Kassis

Applicant

And

Mr McKinley

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long-term parenting arrangements for the parties’ only child, a boy aged 10 ("the child”).

2. Although at a previous point in the proceedings the mother was open to the child maintaining a relationship with the father, at the time of the final hearing she sought orders that she have sole parental responsibility for the child, that he live with her and spend no time with the father. She also sought orders that she be permitted to obtain a passport and undertake travel overseas without prior notice or permission of the father.

3. As I will explain, the father who previously sought orders that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with him on a substantial and significant basis, has been disengaged with the proceedings for some time and they were ultimately heard on an undefended basis.

4. The question for me to determine was whether the orders sought by the mother and supported by the Independent Children’s Lawyer (“ICL”) are proper having regard to the best interests of the child being the paramount consideration.

5. On 24 March 2020 orders were made as sought by the mother that she have sole parental responsibility for the child, that the child live with her and spend no time and have no communication with the father. The reasons for judgment were to be published at a later date and the determination of the other orders sought by the mother relating to travel and the obtaining of passports was reserved.

6. This judgment deals with the outstanding orders sought by the mother and reasons for the orders previously made.

The Hearing

1. The father failed to attend a number of court events (as set out below) throughout the course of the proceedings particularly and most recently court events relating to preparation for final hearing after the release of the Family Report.

2. It was submitted by counsel for the mother that the father was aware of the date fixed for final hearing and the consequences of not complying with trial directions, being that the application would be dealt with on an undefended basis. In this regard the mother tendered an email from her solicitor dated 18 March 2020 sent to the father in which the solicitor referred to the mother’s Further Amended Initiating Application and date for final hearing. She also tendered the father’s response in terms that indicated he was well aware of the final hearing date.

3. The mother and ICL sought that the final hearing take place and her application be dealt with to finality in the absence of the father.

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

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

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

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

5. Rule 11.02(2)(c) of the Rules provides that:

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

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

6. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], I determined that it was in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father.

   [1] [2014] FamCAFC 14

   [2] Set out in s 69ZN of the Family Law Act 1975 (Cth).

7. In light of the matter proceeding on an undefended basis, the father’s material is not read.

Background

1. The mother who is 49 and the father who is 45 began living together in a de facto relationship in early 2002. 

2. There is a long history of physical and verbal abuse perpetrated by the father towards the mother throughout the relationship.  She deposes to several incidents where the father hit her across the face, pushed her to the ground and kicked her and hit her with objects including a wooden stick or rod.  She did not report any incidents of violence to the police at the time they occurred out of fear about the father’s reaction.

3. The mother describes an incident that occurred prior to the birth of the child, sometime between 2004 and 2007, where in the course of a verbal argument the father stabbed her in the upper thigh with a kitchen knife causing a significant wound that required medical attention.

4. Police records confirm complaints of the father engaging in abusive and threatening behaviour towards others over many years. The records include serious verbal threats towards the paternal grandmother including voice messages containing threats to “cut the fucking throat” of family members. In December 2011 the paternal grandmother’s fears for her safety were sufficient to justify an Apprehended Violence Order (“AVO”) against the father for the paternal grandmother’s protection.

5. According to police records, the father also has a history of aggression and violence in the workplace. Complaints have been made since March 2008 by three different employers of the father making abusive and violent threats in similar terms over the years in different workplaces.

6. The parties’ only child was born in  2010.

7. The father continued to be the perpetrator of family violence including physical assaults against the mother after the child’s birth and in his presence.

8. The mother deposes to specific incidents in November 2014 when the father slapped her to the face causing bruising to her cheek and that the father was holding the child at the time and demanding money. She deposes that the father refused to hand over the child unless she gave him $2,000 in cash and a cheque for $8,000 which she had been saving for the child. She deposes to another incident in June 2016 when the father again slapped her across the face with an open hand leaving a mark that required medical attention. This incident occurred in the presence of the child then aged six, who became visibly upset.

9. The parties separated at around the time of the June 2016 incident and following separation the mother and child moved in with the maternal grandparents.  The parents were unable to reach an agreement about parenting arrangements for the child but the father unilaterally began picking the child up from school on a Friday afternoon and imposing an arrangement on the mother whereby he retained the child in his care each weekend.

10. The mother subsequently agreed that the father could enrol the child in an extra- curricular activity each Wednesday afternoon which after a few weeks led to the father insisting unilaterally that the child spend each Wednesday night with him.

11. At around the same time the parties separated the father was also terminated from his employment after he had been threatening some of his co-workers. In September 2016 one of the co-workers attended the police station to report messages and voicemails left by the father containing threats to harm the co-worker and his wife.

12. It is also recorded that the father’s co-worker did not want the police to contact the father in case it inflamed the situation as he believed the father had “mental issues”.

13. The mother first reported receiving similar abusive text messages from the father to police around the same time.

14. In November 2016 the father withheld the child from the mother for about 10 days and did not take him to school or his co-curricular activities. At one stage during this period the mother went to the father’s home to collect the child but the father had locked himself and the child in the house. At the end of the 10 days the father permitted the mother to collect the child from his home but thereafter began sending her a barrage of highly offensive, abusive and threatening text messages which on 6 December 2016 the mother showed to police when reporting that she had significant fears for her safety. Later that day the father called the mother and threatened “I am going to come at 3am in the morning and throw a brick through the window, burn the house down, and stab you to death”.

15. On 7 December 2016 the father attended the police station as he had become aware that he was wanted by the police. When the father attended the police station he was arrested and charged with use of a phone to menace the mother.  The police made a provisional Apprehended Domestic Violence Order (“ADVO”) for the mother’s protection with conditions including that the father not contact her except through a lawyer.

16. The same day the ADVO was issued the father collected the child from school and again retained him. The mother called and asked to speak to the child later that evening and the child said words to the effect “Daddy says if the police come, we’ll both run away and you will never see us again”.

17. The mother attended the police to see if they could assist her in having the child returned to her care. Police explained that they would not get involved in a family law matter.

18. The mother attended a Family Relationship Centre and was referred to obtain urgent advice from a duty lawyer at the court.

19. On 14 December 2016 the mother spoke to a duty solicitor who tried to get in touch with the father to no avail. On this day the mother also contacted the child’s school and it was confirmed that he had not been in attendance since 7 December 2016. 

20. The mother then commenced proceedings in the Federal Circuit Court on 15 December 2016.  On this date a judge of that court made a Recovery Order to recover the child from the father and return him to the care of the mother and an interim order that the child live with the mother.

21. On 16 December 2016 an interim ADVO was made in a Local Court in the same terms as the provisional ADVO order.

22. On 22 January 2017 the mother attended a local police station and reported that the father had breached the conditions of the ADVO on a number of occasions by contacting her directly.

23. The following day the mother received 145 messages from the father starting at 1.48 am in the morning and continuing throughout until 8.21 pm. The tone and content of the father’s messages can be gleaned from the following police record:

    The [father] states in text messages “U IGNORE ME U HANG UP 1 more FKN time im GUNA come thrust that door n kill you…”. “you’re a low dog, the FUCKEN lowest most putrid cunt there is”. “I still love ya but I’m GUNA kill ya IV had enough of this I can’t handle it I’m not made for prison”… “listen fuckwit, I honestly don’t love you. I’d cut ur hand off the minute i got home. I’d smash yr nose face n mouth in one hit and remove 2 or 3 teeth as well.”

24. It is also documented in the police records that the father sent the mother a picture of the child with the mother’s 13 year old niece expressing sexual violence against the mother’s niece.

25. On 26 January 2017 the father sent the mother an email making reference to “the occasional time I hit you” and stating “I could watch two blokes beat the fuck out of you now”.

26. The father continued to send the mother abusive messages and emails throughout January and February 2017 which caused police to have serious concerns about the father’s conduct.

27. On 22 February 2017 the father came to see the child at school so school staff called the police. The police checked the ADVO and explained to school staff that the conditions of the ADVO did not prevent the father from speaking or seeing the child.

28. At a court event two days later orders were made with the consent of the parties on a short term interim basis that the child spend supervised time with the father at a contact centre. Orders were also made restraining the parties from discussing the proceedings in the presence or hearing of the child, denigrating one another or members of one another’s families in the presence or hearing of the child and requiring the parties and ICL to attend a Family Dispute Resolution Conference.

29. In March 2017 the father began sending the mother’s solicitor voluminous  abusive emails.

30. In June 2017 a further ADVO was made for the mother’s protection which in October 2019 was extended until 12 June 2021.

31. In July 2017, due to the father’s conduct and behaviour during the intake procedures, the coordinator of the first contact centre deemed the family not suitable for supervision.

32. The child spent supervised time with the father at an alternative contact centre on a number of occasions in September 2017. This contact centre made a decision in late October 2017 that the service would be terminated as the father had missed the previous visit without notification. The mother subsequently learned that the father did not attend for supervised time due to his incarceration it seems relating to a conviction of breaching the conditions of the ADVO related to sending the mother abusive messages.

33. At a court event on 1 March 2018 there was no appearance by the father.  It was noted that if the father did not appear on the next occasion the Court was to give consideration to the application being heard on a final undefended basis.

34. The child resumed spending time with the father in April 2018 on a fortnightly basis for two hours. This continued until 10 November 2018 and on 22 November 2018 the contact service suspended the father’s time due to a “breach of the service agreement”.

35. On 16 August 2018 the first ICL appointed in the proceedings withdrew from the proceedings.

36. At a court event on 3 September 2018 orders were made for the father to file an affidavit and annex recent evidence as to his psychological state.

37. On 18 October 2018 the parties were ordered to attend upon a family consultant for the preparation of a Family Report. 

38. On 12 May 2019 the previous ICL who had withdrawn from the proceedings eight months previously received a further threatening and abusive email from the father calling him, amongst other things, a “putrid gutless grub” and threatening that “tomorrow people will know about you [name of ICL] and for the rest of my life every single person I meet will know about you”.

The Family Report

1. On 13 May 2019 the parties and child attended upon a family consultant for the preparation of a Family Report. This report was released to the parties on 28 May 2019.

2. The opinions and recommendations of the family consultant are a matter to which I will return in detail when considering the best interests of the child. At this stage some of the salient matters are set out to give context to the concerns of the family consultant about the welfare of the child in the care of the father.

3. At her assessment interview the mother reported that the father had perpetrated physical and verbal abuse over their fifteen year relationship consistent with her affidavit evidence. She also described feeling concerned for the child’s welfare in the care of the father as she had seen the father pull the child by his shirt and had observed bruises on his arms after spending time with the father. The mother also reported feeling concerned for the child’s emotional health in the father’s care based on the child’s attitude towards her on some occasions after spending time with him.

4. The father denied that there had been ongoing violence during the relationship but did describe some particular incidents of violence including an occasion where he slapped the mother across the face as she had “almost ripped [the child’s] arm out of his socket and called him a fucking idiot as he couldn’t do his homework”.  The father also described another incident where he says the mother chased him with a knife and stabbed him in the stomach, during the course of an argument in which the father says he also “grazed” the mother’s inner thigh.

5. The father told the family consultant that he had spoken in an offensive way to several people including the ICL, the contact centre staff and the mother.

6. The mother also reported concerns about the father’s drug and alcohol use stating that she had found paraphernalia that police had since told her was used for “ice” (crystal methamphetamine) consumption. She also disclosed that the father had always smoked marijuana. The father denied using “ice” and said he hadn’t smoked marijuana since the child was born.

7. At the time of the Family Report the father had not seen the child in approximately eight months.

8. The child was nine years old at the time of the interview for the Family Report. The child told the family consultant that he missed spending time with his dad and staying at his house and explained “the contact place was ok, but wasn’t home”. In relation to the supervised time, the child said he did not understand why there had to be someone watching them, stating “Dad loves me”.

9. The child described witnessing “one time when Dad and Mum were fighting, and he slapped her, but she was yelling loud in his face”. The child said he was worried about “Dad seeing Mum, she might be angry with him, she’s always angry with him”.

1. The family consultant observed that the child appeared to have positive relationships with both parents and opined that observations of the child with each parent did not suggest any significant discrepancies with their accounts of their relationships with each other.

2. The family consultant was of the view that due to the child’s age and developmental stage, the Court should not give determinative weight to the child’s views.

3. As to the allegations of the father’s drug use, the family consultant opined:

   Children exposed to parental drug use are at risk of not having their daily needs met, routine and household tasks such as preparing meals, getting ready for school and having clean clothes and an environment to live in can be disrupted. Parents may be unavailable for emotional and physical support and the financial impact can be severe with the lack of provision of food and payment of bills may lead to homelessness or increased risk of exposure to criminal activity. Children’s experiences are impact by the extent and severity of the parent’s usage.

4. The family consultant also observed:

   It appears the separation has heightened both [the mother] and [the father’s] behaviour. It has escalated with [the father] making threats to harm [the mother] and her family. Should this continue it is likely to have a negative impact on the co-parenting relationship and in turn be detrimental to [the father] and [the child’s] relationship.

5. Based on the evidence before the family consultant and from the interviews conducted, the family consultant recommended that the child live predominantly with the mother. The family consultant opined that if the Court determined there was family violence, the mother should hold sole parental responsibility for the child and the child should spend time with the father once per month on a weekend day. If the Court determined that the father had an illicit drug misuse concern, the family consultant recommended that the father spend supervised time with the child until he was no longer under the influence of illicit substances and had completed a rehabilitation program.

6. On 14 June 2019 orders are made with the consent of the parties that the father attend for hair testing and urinalysis for the purpose of determining any substance misuse.  Orders were also made with the parties’ consent that the child resume spending supervised time with the father each alternate Saturday for two hours.

7. On 25 July 2019 the proceedings were transferred to this Court due to the anticipated length of the final hearing.

8. On 31 July 2019 the matter came before a registrar for directions and there was no appearance by or in behalf of the father.

9. On 28 August 2019 the mother received an email from the director of the contact service where the father was most recently spending time with the child informing her that the service could no longer be facilitated as the father had been “obnoxious” and “aggressive” to deal with and had sent the director of the contact service a message she considered “highly inappropriate”. The director included in her email to the mother an excerpt from the email she had received from the father:

   You’re full of BullShit you’re s waste of fucking time you Russian C*nt… YOU BRAINDEAD BITCH…Another C*nt in this fucken horrific fucked system who could not give a fuck about my son… $300 per visit cunts like you I fucken dispise … I hope someone takes your fkn child one day I fkn swear that… only then you’ll know what the fuck I’m going through and if you did know what I’m going through you stupid fkn bitch you would not have just done this to me and fucked me and my little boy around. You go and get fucked

10. On 10 September 2019 trial directions were made to ready the matter for final hearing.  There was no appearance by or on behalf of the father on this date.

11. On 17 November 2019 the father posted a threatening and abusive message about the previous ICL appointed in these proceedings on his social media account:

    I stupidly lost my temper & told the judge this is how dumb & totally incorrect the ICL is, he claims I’m going to hurt her, my little boy but the truth your honour the actual truth is there only 1 person I’m going to hurt & you talk over me you bang ya hammer I swear to god the only person I’m going to hurt is this putrid treacherous pedophile who’s trying to seperate me from my son the very next time he says in this court room I will hurt my son, he can believe I’ll hurt my ex wife that’s reasonable & I even understand with all the men that do hurt there ex wives why he’s saying that, but the next time he says I’m going to hurt my son That will be the day he finally is proven wrong because I’m going to walk across this court room and hurt this man & it’ll be horrific what I do to him your honour… 2 weeks after I said that in court n lost me temper he withdrew as ICL claiming he’s in fear of me and this gutless spineless coward pedo will never even face any repercussions…

12. On 21 November 2019 the matter came before a registrar for a compliance check when it was noted that the mother had filed her affidavits in compliance with trial directions but the father who did not attend had not filed anything.  The matter was listed for undefended hearing.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects 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.

3. 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).

4. The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5].

   [3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [4] (2007) Fam LR 518

   [5] [2006] FamCA 994

4. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

5. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

6. The Full Court in McCall & Clark (supra) continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. The child has not spent any time with the father since November 2018 except for the time during observation for the purpose of the Family Report in May 2019. The family consultant on this occasion observed a positive interaction between the child and the father. It is the mother’s case that while the child may receive some benefit from having a meaningful relationship with the father, the need to protect the child from harm outweighs any such benefit.

8. The father however can be taken to accept that the child will not benefit from him having a meaningful relationship with him as he has not pursued any orders that would foster any such relationship.

9. The need to protect the child from both the harm associated with the exposure to family violence and physical abuse looms large in these proceedings.

10. There is no evidence to rebut the mother’s contentions about the father’s history of physical violence, verbal abuse and abusive messages. The mother’s evidence concerning these matters is consistent with complaints made by family members and employers about similar conduct. There is also substantial corroboration for the mother’s account of the father’s verbal abuse and abusive communication in police records. Accordingly, I am satisfied that the father has engaged in a long history of physical and verbal violence towards the mother which falls within the definition of family violence as set out in section 4AB of the Act[6].

    [6] 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 person's family (the family member), or causes the family member to be fearful.

11. The mother submits that there is a significant risk to the child from exposure to the father’s violent conduct. She relies on the Full Court decision of Blanch & Blanch and Crawford (1999) FLC 92-837 in which Lindenmayer J said at p 85,746:

    A risk of at least equal if not greater significance is that referred to by both Baker and Chisholm JJ in the passages from their respective judgments in Patsalou and JG and BG which I previously quoted, namely the risk to the children’s emotional development arising from growing up in a violent household under the tutelage and influence of a violent parental role model…

12. I am of the view that the father’s propensity to threaten violence poses a risk to the child’s emotional development, particularly in circumstances where the child has been seen to minimise the father’s poor behaviour (in his interview with the family consultant). I accept the ICL’s submission that given the child’s gender (male), it is important that his views of women be appropriate and in this regard the father’s historical derogatory comments to the mother, female legal representatives and female supervisors should be considered.

13. I also accept the ICL’s submission that the father conceded in a document filed with the Court previously that he had slapped the mother in the presence of the child. I am satisfied from the evidence of the mother and the child’s disclosure himself to the family consultant that he has been exposed to family violence perpetrated by the father towards the mother.

14. I also accept the ICL’s submission that on the mother’s evidence there is cause for concern that the child has been exposed to the father’s negative views of the mother.

15. The mother told the family consultant that she was concerned the child was being physically abused by the father as she had observed bruising on the child’s arm after spending time with the father. In the absence of any evidence to the contrary, I am also satisfied that there is also a risk that the father may physically harm the child.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. I accept the submissions made by the mother and the ICL that little determinative weight should be attached to the child’s views which is also the recommendation of the family consultant given the age of the child, the child’s desire to have a relationship with his father and as the need to protect the child must be more weighty in these circumstances. The ICL also submits that the views expressed by the child that he is desirous of a relationship with the father should be treated with caution given his exposure to conflict.

Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The child has a strong and positive relationship with the mother.

2. The mother and child live in the household of the maternal grandparents enabling the child to enjoy a close relationship with the maternal grandparents. The child spends time with the paternal grandmother and paternal aunt and on the mother’s evidence has a good relationship with them both.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. The father’s disengagement in the proceedings is the most salient feature in the resolution in this dispute. The father can be taken from his disengagement to have forfeited his interest in participating in the child’s life in all respects.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The mother does not receive any financial support from the father.

Likely effect of change in the child’s circumstances

1. The orders sought by the mother would see a continuation of the child’s present arrangement.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. I accept the ICL’s submission that the child is at an age where role modelling from adults is crucial to his development, given he is about to enter high school. I also accept the view of the ICL that it of concern that the child when interviewed by the family consultant seemed to minimise the father’s negative behaviour. Concern arises as to the father’s capacity to provide for the child’s emotional needs given the mother’s evidence of the father exposing the child to negative comments about the mother.

2. The mother’s evidence of the father’s longstanding use of cannabis and suspicion that he has used “ice” in the past is of concern especially in circumstances where the father failed to comply with an order made in June 2019 that he undertake hair testing and urinalysis at the request of the ICL. By doing so the father did not avail himself of the opportunity to challenge the mother’s contention that he misuses illicit substances and in these circumstances I cannot be satisfied his use of illicit substance is not ongoing.

3. I attach weight to the family consultant’s views regarding the risks posed to children who are exposed to parental drug use. The family consultant opined that children in the care of a parent who are using drugs are at risk of not having their daily needs met including that the using parent may be unavailable for emotional and physical support. In these circumstances the risk that the child may be exposed to drug use in the father’s care must be given some weight.

Family violence relating to the child or a member of the child’s family

1. Family violence is broadly defined. As explored previously I am of the view that the father’s conduct constitutes family violence to which the child has previously been exposed.

2. There is also a current ADVO in place for the protection of the mother from the father from which it can be inferred that the mother still harbours concerns for her safety.

3. I attach weight to the views of the family consultant as to the impact that exposure to family violence can have on children, who opined:

   Family violence can adversely affect children in several different ways. For example, exposure to a parent who undermines the other part and in turn the children’s relationship with that parent. Children are at an increased risk of exposure to threats of violence or risk of psychological abuse including manipulation and neglect. Children are also at risk of adverse developmental outcomes and or behavioural problems that can exhibit themselves in poor peer relationships and poor academic performance both in the short and long term.

4. In light of the evidence before the Court as to the father’s conduct which I have found to constitute family violence and the views of the family consultant as to the adverse impact on children from exposure to family violence, this consideration should be given significant weight in determining the outcome that is in the best interests of the child.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. Having regard to the father’s disengagement from the proceedings, orders that would be least likely to lead to the institution of further proceedings would be those sought by the mother.

Any other relevant fact or circumstance

1. The mother also seeks an order that she be permitted to obtain a passport for the child and travel overseas with him without the father’s consent. The holding of sole parental responsibility by one parent does not entitle such parent to obtain a passport for a child without the consent of the other parent. It is proper in the circumstances of this matter where the father has demonstrated a complete inability to communicate in an appropriate manner and where the mother holds sole parental responsibility for the child that an order be made permitting her to obtain a passport and travel overseas without the father’s consent. Such an order will avoid the mother being unnecessarily exposed to the father’s highly intimidating and abusive communication if she were required to seek his permission.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.

1. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section 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. In this case, the presumption does not apply as there are reasonable grounds to believe that the father has engaged in family violence (subsection 61DA(2).

2. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.

3. Given the father has disengaged from proceedings and in light of the family consultant’s recommendation that if the Court found there was family violence the mother should be given sole parental responsibility, it would not be proper for any orders to be made for the father to be involved in the exercise of parental responsibility.

4. Having regard to all of the factors in relation to the best interests of the child I make orders in accordance with those sought by the mother.

5. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 June 2020.

Associate: 

Date:  30 June 2020