Kelsey and Sellenger

[2013] FCCA 122

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELSEY & SELLENGER [2013] FCCA 122

Catchwords:
FAMILY LAW – Parenting orders – undefended hearing after filing Notice of Discontinuance – orders for children to spend no time with their father – Family Violence.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4

Applicant: MR KELSEY

Respondent: MS SELLENGER

File Number: BRC 4403 of 2010

Judgment of: Judge Lapthorn

Hearing date: 12 April 2013

Date of Last Submission: 12 April 2013

Delivered at: Brisbane

Delivered on: 23 April 2013

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: N/A

Counsel for the Respondent: N/A

Solicitors for the Respondent: Kennedy Spanner

Counsel for the Independent Children’s lawyer: N/A

Solicitors for the Independent Children’s Lawyer: Best Wilson Family Law

ORDERS

1. That the children [X] born [in] 2007 and [Y] born [in] 2009 live with the mother.

2. That the mother have sole parental responsibility for the children.

3. That the children have NO contact with the father including by way of physical time with the children and including by telephone and any form of written communication including letters, cards and presents.

4. That the mother continue with the counselling for [X] as recommended by his psychologist.

5. That the father be restrained from attempting to locate the mother and the children without leave of the court.

IT IS NOTED that publication of this judgment under the pseudonym Kelsey & Sellenger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TOOWOOMBA

BRC 4403 of 2010

MR KELSEY

Applicant

And

MS SELLENGER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father of [X] and [Y] filed an application for parenting orders on 31 August 2012.  In that application he sought orders for the children to live with the mother; for the parties to have equal shared parental responsibility; and ultimately for the children to spend increasing time with him leading to one weekend per month and half of the school holidays as well as special occasions. The mother opposed this application seeking an order that the father spend no time with the children and that she have sole parental responsibility. 

2. When the matter first came before the court on 19 November 2012 I ordered that the children be independently represented. The Independent Children’s Lawyer informed the court on 1 February 2013 that she intended to obtain a family report from Mr S, a family consultant.  Because the mother strongly objected to [X] being reintroduced to the father I made the following order:

   “That if funding was obtained for the report from Mr S, Mr S conduct an assessment of  whether it would be appropriate for the child [X] born [in] 2007 to be reintroduced to the father and spend time with him as part of the report assessment process but not to in fact move to the stage of reintroducing the child to the father until the court has further determined that fact or it is by consent of all parties”

3. The father failed to attend court on 12 April 2013 having filed a notice of discontinuance two days prior.  I proceeded to hear the matter on an undefended final basis making orders for the children to live with the mother; for her to have sole parental responsibility; the children to spend no time with the father including by way of telephone and any form of written communication; the mother to continue the child [X]’s counselling; and restrained the father from attempting to locate the mother and children without leave of the court.  These are my Reasons for Judgment. 

Background

1. The parents of the children commenced a relationship in 2005.  They were married [in] 2006 and separated in April 2010.  Their Divorce took effect on 24 September 2011.  Both parents have other children from other relationships.

2. The evidence suggests the relationship was marred by ongoing violence involving physical assault, verbal abuse and controlling behaviours.  On 10 December 2010 the father was sentenced to 5 years gaol for assault on the mother and other offences relating to an event on 21 July that year where the father broke into the mother’s home.  He was released on parole at the end of March 2012.

3. The mother and [X] commenced counselling after the attack and continue to do so.  They no longer live in the [omitted] area having moved interstate.

The Evidence

1. Although the father did not prosecute his application, in determining the orders sought by the mother I had regard to the following material filed by him: his Initiating Application filed 31 August 2012 and an affidavit also filed that day. 

2. The mother relied upon:

   a)Her Response filed 16 November 2012;

   b)Her affidavit filed 16 November 2012;

   c)A Notice of Child Abuse Family Violence or Risk of Family Violence filed 26 November 2012; and

   d)The affidavit of Mr A filed 21 December 2012. 

3. In the mother’s affidavit she set out a history of family violence perpetrated upon her by the father.  She alleged that initially the abuse was of a verbal nature and was always fuelled by the father’s alcohol consumption.  She said that in September 2009 the verbal abuse escalated.  She alleged that that abuse was not just limited to her but that he would also shout abuse at the children. 

4. On 13 April 2010 the parties signed consent orders in relation to their property settlement.  The mother alleged that on that day the father threatened to kill her and told her that her parents should “watch their backs”.  At the time the parties were still living at the same address.  On 1 May 2010 the mother left the former matrimonial home with the children out of fear for her safety.  She was assisted in doing so by the paternal grandmother.  She was away for a number of days.  The mother set out a number of instances of verbal abuse up to July 2010. 

5. The mother also set out in her affidavit a number of instances of physical abuse the most serious of which she said occurred on 21 July 2010.  Her evidence was that she woke up at 1.30 in the morning and found the father sitting on top of her with one hand on her throat and the other hand holding a pocket knife bringing it down as if he was intending to stab her in the neck.  During the altercation the child [X] had woken and observed the father with the knife.  The mother managed to pick the child up and ran out the front door but in doing so fell.  The father then pushed both mother and child through the front door and the mother up against the wall.  The father then began verbally abusing the mother.  When the mother attempted to make a phone call the father tried to rip the telephone from the bench.  The mother again escaped and a neighbour provided assistance.  [Y] was in the house at the time.  The father cut his wrists with a knife during the incident.  This was the event that led to the father’s incarceration.

6. In the father’s affidavit he did not give detail of the events of 21 July but did give evidence of his incarceration.  He told the court of the courses studied and skills gained whilst in prison.  He gave evidence of having compromised mental health at the time of the incident and that he continues to see his medical practitioner.  He asserted he has turned his life around and is now drug and alcohol abstinent, in steady employment and in a stable relationship.

7. Mr A is a child and family clinical psychologist who has provided professional assistance to the mother and [X] since February 2011.  He has assessed the mother as having severe Post Traumatic Stress Disorder (PTSD) as a result of the assault on 21 July.  She suffers from recurrent intrusive recollections and dreams including flashback experiences and is hyper vigilant and has extreme startle response at times.  He concluded that the mother’s ability to cope with her PTSD would be compromised by any resumption of the children spending time with the father.  Mr A also concluded that [X] was suffering from PTSD having recurrent intrusive recollections and dreams, being hyper vigilant and being prone to outbursts of anger.  In his view any form of contact between [X] and his father is likely to be confusing and disturbing for the boy which is likely to undo therapy progress and re-awaken trauma both in [X] and in the mother’s family unit as a whole.

8. The Independent Children’s Lawyer supported the mother’s application and relied upon an affidavit of Mr S annexing his report which was filed 10 April 2013 but previously provided to the parties.  The report writer concluded that the best outcome for the children would be for them to have no contact with their father until they were of an age where they could emotionally manage and cognitively comprehend the dilemmas involved.

9. The report writer expressed concern in his report that the father was not forthcoming about the events surrounding the incident of 21 July 2010.  The father denied many of the allegations notwithstanding he pleaded guilty to the charges.  After questioning the father the report writer concluded that he was constantly attempting to minimise, justify and deny some of the events.  Given this matter proceeded by way of undefended hearing I am not in a position to determine whether the report writer’s conclusions in this regard are accurate but it is concerning that the father’s answers to questions proffered by the report writer could lead him to that view.

10. Mr S was scathing in his criticism of the father.  The father clearly left the impression of not accepting responsibility for his actions on both the mother and [X].  With this report being received without challenge I accept Mr S’s evidence and his professional opinion expressed therein.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2] 

   [1] S 60B

   [2] S 60CA

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

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

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

   e)Children have a right to enjoy their culture.

   [3] S 60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5]  This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[6]

   [4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [5] S.61DA

   [6] S.61DA(2) & (4)

4. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9]  A major long-term issue in relation to a child means an issue:

   [7] S.61B

   [8] S.61C

   [9] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]

   [10] S.4

5. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[11]  If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[12]

   [11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [12] S.65DAA(2)(c) & (d)

The primary considerations: s.60CC(2)

1. Although this matter proceeded by way of undefended hearing I am required to consider the following factors so far as they are relevant in determining the orders that are in the children’s best interests.

The benefit to the child of having a meaningful relationship with both of the child’s parents[13]

[13] S.60CC(2)(a)

1. The children currently benefit from having a meaningful relationship with their mother who has been their primary carer all of their lives.

2. The children do not currently have a relationship with the father and have not done so since he was incarcerated.  The report writer raised concern as to whether the father had the capacity to offer a meaningful relationship to the children in light of his conclusion that the father lacks insight and capacity to resolve any issues of violence.  In light of this and the potential for the child [X] to be traumatised by any reintroduction I find that these children will not benefit from developing a meaningful relationship with their father at this stage of their lives.

3. I give considerable weight to this factor.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence[14]

[14] S.60CC(2)(b). S60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

1. Whilst the father might be right when he says he has turned his life around the circumstances surrounding his incarceration are alarming.  His apparent minimisation of this event and its consequences on the psychological wellbeing of the mother and children are very concerning.  This gives me little confidence that the father has learned anything from his time in prison despite the courses taken by him there.

2. I accept the mother’s evidence as to the history of the violence including the children’s, especially [X]’s, exposure to it.

3. I am satisfied there is a potential risk these children will be exposed to family violence if they spend time with the father given his past history and that there is a real risk of psychological harm to [X] in particular as a consequence of his memory of the incident on 21 July 2010. 

4. This is an important factor to which I give considerable weight.

The additional considerations: s.60CC (3)

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[15]

[15] S.60CC(3)(a)

1. The children are very young and in the circumstances of this case were not interviewed. To do so would have potentially caused further trauma to [X].

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)[16]

[16] S.60CC(3)(b)

1. [X]’s relationship with the father was severed by the father’s actions on 21 July 2010 and his subsequent incarceration.  The mother’s proposal would see that that remain. 

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

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

b)To spend time with the child; and

c)To communicate with the child[17]

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child[18]

[17] S.60CC(3)(c)

[18] S.60CC(3)(ca)

1. The father filed his application to spend time with the children soon after his release from prison.  I accept the mother’s evidence that she made arrangements for the children to spend time with the father after separation but prior to the events of 21 July 2010 notwithstanding the history of family violence.

2. In light of the significant weight given to the primary considerations I do not propose to address this factor in any detail.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living[19]

[19] S60CC(3)(d)

1. Although the father’s application was not to change where the children should live the consequences that could potentially flow from the children spending time with him are significant.  It would appear that the child [X] as part of his PTSD checks on his mother to see if she is okay.  For reasons I have already expressed I am satisfied that if he was to spend time with the father there would be a real risk of psychological harm to [X].  Even if [Y] was to see the father on her own I am of the view that [X] and the mother would not be able to cope emotionally.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[20]

[20] S60CC(3)(e)

1. The mother now lives at an undisclosed location interstate and the father lives in [omitted].  Despite this distance apart from the father’s proposal for weekend time this is not a consideration that would have impeded either application.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs[21]

[21] S60CC(3)(f)

1. The significant issue here is whether the father has the parental capacity to meet the children’s needs especially those of [X].  Whilst the evidence suggests the father has been able to parent other children his lack of insight as demonstrated to the family report writer raises real concerns that he is unaware of the effect of his actions of 21 July 2010 have had on [X].

2. The risk of re-triggering the trauma for both [X] and the mother is too great if time was permitted between the children and the father.  Indeed the mother needs the comfort of a positive order that the father have no time with the children so that she can get on with her life and parent the children.  To do otherwise risks undermining her capacity to parent.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[22]

[22] S.60CC(3)(g)

1. These children are still very young and vulnerable.

The child’s right to enjoy his or her culture if the child is an Aboriginal child or a Torres Strait Islander child (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order will have on that right[23]

[23] S.60CC(3)(h). S.60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

1. The children are not of Aboriginal or Torres Strait Islander background.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents[24]

[24] S.60CC(3)(i)

1. This factor has been considered while addressing other factors.

Any family violence involving the child or a member of the child’s family[25] and if a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

[25] S.60CC(3)(j)

a)The nature of the order;

b)The circumstances in which the order was made;

c)Any evidence admitted in proceedings for the order;

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

e)Any other relevant matter[26]

[26] S60CC(3)(k)

1. I have already addressed the serious history of violence.  I accept the mother’s evidence.  The serious nature of this violence warrants a protective approach to ensure the children are not further exposed to violence or re-trigger events from the past.  The mother’s request for a restraint on the father seeking to locate the mother without first obtaining leave from the court is an appropriate order in the circumstances.

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[27]

[27] S60CC(3)(l)

1. If the court was to decline to make any order in light of the father’s filing of a notice of discontinuance there would be potential for the mother to face again an application for parenting orders. 

Presumption of Equal Shared Parental Responsibility

1. I am satisfied that the presumption of equal shared parental responsibility has been rebutted by the history of violence.

2. I accept the submissions of the mother that she should have sole parental responsibility for these children.  Given the history of violence it is not feasible for the mother to communicate with the father in order to share decision making.  This outweighs any benefit the children would otherwise receive by both parents being involved in important decisions about their long term care, welfare and development.

Consideration of Equal Time or Substantial and Significant Time

1. I am not required to consider the provisions of s.65DAA given my finding in relation to sole parental responsibility.

Discussion

1. When I take into account all of the factors considered above, in light of my findings as to the serious violence and the consequential psychological and emotional effects on the mother and [X] I am satisfied this is a case that warrants a positive order to the effect that the children spend no time with the father.  To make such an order should only be contemplated as a last resort because as a general rule and as the objects and principles of Part VII make clear children’s best interests are usually served by both parents having a meaningful involvement in children’s lives.  In this case their physical safety and emotional wellbeing would in my view be compromised by spending time with their father.  The mother’s own emotional wellbeing would also be compromised.  Consequently the general principle does not apply to these children.

2. For those reasons on 12 April I made the orders set out at the commencement of this judgment.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  23 April 2013