KERSHAW & BYRD

[2019] FamCA 864

FAMILY COURT OF AUSTRALIA

KERSHAW & BYRD [2019] FamCA 864

FAMILY LAW – CHILDREN – Undefended hearing – Best Interests – Where the father ceased engaging in the proceedings – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Kershaw

RESPONDENT: Mr Byrd

INDEPENDENT CHILDREN’S LAWYER: Mr Layson

FILE NUMBER: PAC 871 of 2015

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Watts McCray

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Byrd
via AAPT telelink

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders Made On 23 October 2019

1. Leave is granted to the legal representatives for the mother and the Independent Children’s Lawyer to have access to all documents produced in respect of the following subpoena in these proceedings:

   (a)      Department of Human Resources – Medicare (Sleeve 7);

   (b)      Suburb C Preschool (Sleeve 11);

   (c)      Dr D, E Medical Group (Sleeve 12).

2. The mother have sole parental responsibility for the child X born in 2014.

3. The said child live with the mother.

4. The child X born in 2014 is permitted to have an Australian travel document and to travel internationally.

5. The mother Ms Kershaw may apply for an Australia travel document (passport) for the child X born in 2014 without first obtaining the consent of the father Mr Byrd.

6. Pursuant to s 68B of Family Law Act 1975 the father be and is hereby restrained from assaulting, molesting, approaching, stalking or contacting the mother and/or the said child and that such injunction be an injunction for the personal protection of the mother and the child shall have a power of arrest without warrant as provided for in s 68C of the Act.

7. Pursuant to s 68B of the Act the father be and is hereby restrained from entering upon or remaining upon or loitering near premises occupied or attended from time to time by the said mother and the child including any childcare centre or school at which the said child may attend from time to time and that this order is an injunction for the personal protection of the mother and child and shall have a power of arrest without warrant pursuant to s 68C of the Act.

8. Reasons for judgment shall be published on a date to be fixed.

The Court Notes That

1. There is no application for costs by the Independent Children’s Lawyer.

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 Kershaw & Byrd 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 871  of 2015

Ms Kershaw

Applicant

And

Mr Byrd

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 27 February 2015.

2. The application concerns X (“the child”) born in 2014 who was five years old at the time of the hearing.

3. The father, who is currently incarcerated, has more recently failed to engage in these proceedings and the proceedings were heard on an undefended basis.

4. At trial, the mother relied upon the following documents:

   Her Initiating Application filed 27 February 2015;

   Her affidavit filed 22 October 2019; and

   The affidavit of the paternal grandmother’s partner filed 22 October 2019.

5. The mother sought orders that she have sole parental responsibility for the child, that the child live with the mother, orders to obtain a passport for the child, and various injunctions for the protection of the child and the mother from the father.

6. The Independent Children’s Lawyer (“ICL”) supported the mother’s position.

7. Orders were made by the Court in the terms sought by the mother on 23 October 2019 and reasons were reserved.  These are those reasons.

Context

1. The mother was 31 and the father 38 at the time of hearing.

2. The parties commenced a relationship in around January 2013 and separated on 3 January 2015.

3. The subject child of these proceedings was born in 2014.

4. The father is currently incarcerated for a conviction of assault occasioning actual bodily harm and take/detain a person without consent with the intention of committing a serious indictable offence (intimidation). The mother was the victim of this offence. The non-parole period expires in 2020 and the end of his sentence is in 2021.

5. Following the father’s assault on her, the mother moved in with her parents to provide the child and her with additional support. The mother’s parents continued to support her and the child but they no longer live with them. The mother and child are currently residing in government assisted housing in a two-bedroom home.

6. The mother is currently unemployed and has not worked for the previous two years having been responsible for the care of the child. She previously worked in customer service and intends to engage with her medical treaters to assist her in returning to work once the child begins school.

The proceedings

1. Proceedings were commenced by the mother on 27 February 2015 by filing an Initiating Application in the Federal Circuit Court of Australia.

2. On 29 June 2015 the proceedings were transferred to this Court.

3. On 28 September 2015 an application by the paternal aunt to intervene in the proceedings came before a registrar who made directions for filing. By the time the matter next came before the registrar the paternal aunt had withdrawn her application to intervene.

4. The proceedings came before the registrar on several occasions between November 2015 and July 2018, however, were adjourned on each occasion pending the outcome of the father’s criminal proceedings.

5. The matter then came before the Court on 23 October 2018 when it was noted that there was no appearance by or on behalf of the father. Orders were made that in the event there was no appearance by or on behalf of the father on the adjourned date, the Court proposed making directions to proceed the mother’s application for parenting orders to undefended hearing.  It was noted that on this date the father’s sentencing proceedings had been adjourned to 10 December 2018 and it was expected the sentencing would be completed on that day.

6. The matter again came before the Court on 18 February 2019 where it was ordered that the parties attend upon a family consultant for the purpose of a Child and Parent Intake Assessment. Orders were made to facilitate the father attending the interview by telephone noting that he was then in custody.

7. On 10 April 2019 the Child Responsive Program Memorandum prepared by the family consultant was released to the parties.

8. On 8 May 2019 the proceedings came before a registrar for a procedural hearing.  It was noted that the father did not appear on this occasion.

9. On 31 May 2019 the matter again came before the Court.  Orders were made appointing an ICL, that the parties undertake urinalysis as requested by the ICL and the proceedings were adjourned for further case management. It was also ordered that the father bring to the notice of the paternal aunt who was still listed as the second respondent the orders made and it was noted that if the paternal aunt did not appear on the adjourned date she would be removed as a party to the proceedings. 

10. On 22 July 2019 the father did not appear despite orders being made on the previous occasion to facilitate his appearance by phone. As a result, the proceedings were listed for undefended hearing and directions for filing were made. It was noted that the paternal aunt had attended in person and indicated that she will seek advice in relation to her position in the proceedings and may engage with the mother through her solicitor as to some possibility of agreement as to time with the child.

11. On 23 October 2019 the matter came before the Court for undefended hearing.  The father did appear by phone on this occasion, however, still had not complied with directions made by the registrar on 31 July 2018 that he file an Amended Response.  He was informed that the matter would proceed on an undefended basis and that upon his release he could seek his own legal advice as to time with the child. He was not stopped from making such application. Both the mother and ICL pressed orders as sought by the mother and orders were subsequently made that the mother have sole parental responsibility for the child, that the child live with her, that the child be permitted to have and the mother permitted to apply for an Australian travel document and travel internationally without requiring the consent of the father and various injunctions were made against the father for the protection of the mother and child.

Procedural fairness

1. As set out above the father failed to appear on a number of occasions and did not comply with directions made by the registrar to file an Amended Response with the Court.

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

   Parties' participation

   (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.

3. Further, rule 11.02(2)(c) of the Rules provides:

   (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.

4. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

5. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

6. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…

7. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

8. Such is the case presently before the Court for consideration.

9. In circumstances where the father failed to comply with orders made and failed to appear on a number of occasions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis notwithstanding that the father was in custody.

Child Responsive Program Memorandum

1. On 9 April 2019 the parties attended upon a family consultant as part of the Child Responsive Program. The father attended his interview by phone from custody.

2. The father told the family consultant that he had pleaded guilty to the charges he is convicted of, acknowledging that he had assaulted the mother once and had threatened to kill her.  He also confirmed that the child, who was five months old at the time, was in the room at the time he physically assaulted the mother.

3. The father reported to the family consultant that he had been diagnosed with drug induced schizophrenia in 2010, which he takes medication for and has attended a psychiatrist and psychologist in the past to consider his mental illness to be managed.

4. The father alleged that the mother had previously threatened self-harm but was unaware as to whether she had any ongoing mental health issues. The mother reported that she attends upon a psychologist and a counsellor and has been diagnosed with depression and anxiety for which she takes medication.

5. The mother informed the family consultant that she had previously used ‘ice’ and marijuana with the father but that she had last used in January 2015. The father maintained concern that the mother was still using drugs “because she is thin.”

6. The family consultant opined that the child presented as potentially having developmental issues.  The family consultant recommended that the child attend upon a paediatrician for a developmental assessment and that the mother follow any advice given by that paediatrician for treatment or management of any issues.

7. The family consultant also opined:

   Risk issues have been raised regarding both [the father’s] and [the mother’s] drug use and mental health issues. These issues may be a matter for the Court’s determination. If the Court finds that [the mother] poses risks to [the child], the Court may need to consider inviting the Department of Family and Community Services to intervene in these proceedings.

8. The family consultant also opined that the child has no relationship with the father or the paternal extended family members, given her age the last time she saw them.

9. It was recommended by the family consultant that the issues of risk identified in relation to the father needed to be determined prior to the child spending any time with the father or his family.

The father’s perpetration of violence

1. The father perpetrated violence throughout the parties’ relationship, which included restricting what the mother could eat or where she could eat, monitoring the mother’s movements, controlling her money by maintaining possession of her cards and threatening to kill her family on a number of occasions.

2. During the parties’ relationship the father, who suffers from schizophrenia, used the drugs “ice” and cocaine and ceased taking his medication which caused him to act violently towards the mother.

3. The incident which led to the father’s later conviction is documented in a Statement of Witness prepared by the mother dated 3 January 2015 and in the transcript of the comments made at the father’s sentencing: Exh “C”. In December 2014 the father came home in the early hours of the morning and came upon a business card for a removalist company. He then became paranoid that the mother was hiding things from him and demanded that she go to the paternal grandparents’ house.  The mother complied and the father later attended the paternal grandparents’ house and again began screaming at the mother and threatening to hurt her if she did not tell her the truth about the business card.  The father then started slapping the mother to the face, who was breastfeeding the child at the time. The paternal grandmother took the child from the mother and took her into another room and the father started to punching the mother in the head who started to become dizzy and lose consciousness. He then dragged her through the house by her hair to the kitchen where he threatened to kill her with a knife.

4. The paternal grandmother then assisted the father in taking the mother to the bathroom to wash the blood off her and change her clothes.

5. The father then told the mother to get in his car and he drove her to a national park and pulled over near some dense bushland. The father then said words to the effect of “when I am finished with you no one will find you.” He then told the mother to get out of the car and again questioned her about whether she had told him everything. When the mother responded to the father’s questioning that there was nothing to tell and that he was being paranoid, he hit her with a metal car jack to her stomach and ribs.  The father then drove the mother back to the paternal grandmother’s home to collect the baby and then returned to their home.

6. Up until 3 January 2015 the father did not let the mother leave the home, took her phone from her and threatened her that if she called the police that he would make her and her family suffer.

7. On 3 January 2015 the father permitted the mother to leave the house to look for a granny flat to live in and she went to a local shopping centre. The mother unsuccessfully tried calling the police on her mobile. The mother then approached a supermarket worker for help who hid her in a security room out the back of the supermarket to hide her from the father who had called her to say he was coming to collect her from the supermarket. The father was arrested later that day.

8. On 6 January 2015 the mother attended upon a medical practitioner complaining of headaches, dizziness and nausea. The medical practitioner observed a five millimetre abrasion in the hairline on the right temple covered with a scab, a two to three centimetre bruise on the upper left arm and she was referred to have a scan of her brain.

9. On 22 January 2015 the brain scan revealed that the mother had sustained a head injury of such force to cause a subdural haematoma. This was described by the mother to the family consultant as “bleeds on the brain”.

10. The transcript of the father’s sentencing records the father having appeared for sentence in respect of two counts:

    Count 1: assault occasioning actual bodily harm; and

    Count 2: kidnapping: take/detain a person without consent with the intention of committing a serious indictable offence/intimidation.

11. The father during the course of the trial changed his plea to guilty for assault occasioning actual bodily harm and to intimidation (the statutory alterative to Count 2 accepted by the Crown in full discharge of Count 2). The father was sentenced as detailed above. The aggregate term of imprisonment imposed for these offences was three years and six months. The offence was backdated to take into account the time he had already been held in custody hence it commenced in 2018.

12. The mother has extensive and ongoing medical issues as a result of the violence. She has lost a significant amount of weight which has affected her immune system causing her to be frequently unwell.  She continues to attend upon a number of general practitioners, psychologists and psychiatrists.  She has been diagnosed with depression, anxiety and post-traumatic stress disorder and has been prescribed a number of medications including antidepressants, and medication for her blood pressure and to assist with her insomnia.

13. The mother provided a Victim Impact Statement in the criminal proceedings which she annexes to her affidavit: Exh “C”. This records that the father’s physical perpetration of violence and resulting bleeding to the brain has affected her short-term memory, level of concentration, ability to communicate and suffers frequent migraines.  

Objective Evidence

The father’s mental health

1. The father’s history of mental health issues is well documented in material produced by his treating psychiatrist: (Exh “E”).  The records indicate that the father had been under the care of a psychiatrist since February 2005 and had attended 33 sessions with that psychiatrist. The psychiatrist records that the father was under her care treatment for schizophrenia and depression. She also writes that the father has limited personal resources and a limited IQ.

2. The psychiatrist’s material produced record the father’s symptoms as having included:

   ...paranoid delusions, including that people are out to harm him, racing thoughts in his head, as well as hearing voices. He has had difficulty in trusting people and has isolated himself.

3. The psychiatrist also records that “[The father’s] attendance at times was erratic due to the lack of insight into his illness and poor compliance with medication.”

4. The records of his treating psychiatrist also document the father as being “easily influenced by negative peers” and that he has a history of drug abuse, including methamphetamine (ice), Xanax and cannabis.

5. The father’s psychiatrist records that “[the father] does get angry easily and reacts impulsively without thinking of consequences, in my opinion, because of his paranoia and limited resources.”

6. It is emphasised in the psychiatrist’s notes that the father’s prognosis is good provided that he adheres to his treatment plan. This treatment plan included taking his medication as prescribed, which as at November 2014 was for Cymbalta (anti-depressant) and Zyprexa (antipsychotic).

The father’s criminal history

1. The father’s criminal history is well documented in police records produced (Exh “D”) and in documents produced by his psychiatrist (Exh “E”).

2. Following an incident which transpired at a service station on 2 April 2014 the father was charged with common assault, intimidation and armed with intent.

3. On 1 August 2014 the father was arrested and later charged with common assault.  This resulted from an incident where the father threatened a person with a pair of scissors and then kicked the person in the face, that leading to a physical altercation between the parties.

4. The police records reveal an altercation in December 2016 while the father was already on bail for offences perpetrated against the mother.  It is documented in the police records that the father was extremely agitated and stated that the other person involved, another male driver, had cut him off while driving and then he armed himself with a bar and was trying to assault him. It is recorded that “Judging by what police witnessed it appears that [the father] was well and truly the aggressor.  He was extremely irate and worked up and police attended…” Police advised the father and other party involved that they were lucky police did not charge them both with affray or that one of them ended up dead or badly injured from the altercation.  It was also recorded that at the time of the offence the father’s vehicle was unlicensed and his licence was suspended.

5. The father, while on bail for the offence perpetrated against the mother, failed on a number of occasions to meet his reporting requirements thus breaching his bail conditions (Exh “D”).

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In the present case, the Court is easily satisfied that the father perpetrated serious family violence towards the mother having regard to the objective evidence adduced in the proceedings. Given the background of family violence the presumption does not apply, and the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the child’s best interests.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The mother has been the primary carer for the child at all times since her birth which has ensured a meaningful relationship with the child. The orders proposed by the mother and supported by the ICL will maintain the meaningful relationship between the mother and child as has always existed.

4. The father has not spent time with the child since the parties’ separation in January 2015 following the incident which led to his later incarceration. At this time the child was only around five months old. The child who is now five years old has had no relationship with the father throughout her life. The orders sought by the mother as supported by the ICL would see this continue. The commencement of any contact with the father would clearly place the child and the mother at risk.

Section 60CC (2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. This is the determinative consideration in these proceedings given the father’s conviction of a violent offence perpetrated towards the mother, criminal history generally, historical drug use and his mental health issues. This gives rise to a significant concern about the overwhelming risk of harm that the father poses to the child.

3. The father’s mental health is of concern in light of the evidence outlined above as to the symptoms of his schizophrenia, his lack of insight into his illness and poor compliance with medication.

4. Some concern historically arose in relation to both parties’ drug use arising from the parties attending upon the family consultant which resulted in an order being made for both parties to undergo urinalysis at the request of the ICL.

5. As aforementioned, the father has a documented history of drug abuse including methyl amphetamine (ice), Xanax and cannabis. No results were provided by the ICL as to drug testing of the father so it is unclear whether this occurred. In these circumstances, the Court cannot be satisfied that the father’s historical drug use is not an ongoing concern.

6. The mother, however, participated in urinalysis and her results were exhibited in the proceedings: Exh “H”. The results show that the initial test for opiates and cannabis metabolites required further testing and some amount was detected but that other tested substances were not detected. It is documented that “mass spectrometry confirms the opiate finding and indicates a pattern consistent with the ingestion of codeine”. Such was taken by the mother for pain relief. Otherwise, the mother admits to using marijuana as a coping mechanism for her insomnia. She does not smoke it in the presence of the child and over the last six months has tried to cease her marijuana use. In these circumstances the Court is satisfied that there is not an unacceptable risk of physical or psychological harm posed to the child arising from drug use by the mother.

7. Relevant to the consideration of needing to protect the child from harm is the following opinion expressed by the family consultant:

   The details of the allegations that [the mother] made are of such seriousness that, if the court considers that they have veracity, it is unlikely that [the child] would gain any benefit in establishing a relationship with [the father], or the extended paternal family. It is also likely that if [the child] did establish a relationship with [the father] and the extended family, this would have the deleterious effect on [the mother’s] well-being and mental health, and therefore on her parenting.

8. Having regard to the opinion of the family consultant that a relationship between the child may have a negative effect on the mother’s parenting and the significant evidence available as to risk posed by the father, it is clearly appropriate to make orders as sought by the mother and supported by the ICL that the child continue to live with her and spend no time with the father.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

   ii)Other persons (including any grandparent or other relative of the child);

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

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

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

   ii)Any other child, or other person (including any grandparent or other relative of the child);

   with whom he or she has been living;

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

   f)The capacity of:

   i)Each of the child's parents; and

   ii)Any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

   i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   ii)The likely impact any proposed parenting order under this Part will have on that right;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

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

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed. The considerations as discussed below as a whole support the orders made.

3. The child was four years and nine months old when she met with the family consultant.  The family consultant reports that the majority of the child’s words were not able to be understood and from what was understood her answers to questions appeared unrelated and tangential. In these circumstances no weight can be attached to the views of the child.

4. The mother has at all times been the child’s primary carer. As aforementioned, the child has had no relationship with the father since she was around five months old.

5. Further, the maternal grandparents provide regular assistance with the care of the child.  The mother, whilst no longer living with the maternal grandparents, regularly takes the child to spend time with them. The maternal grandparents also provide the mother with financial support when needed.

6. The mother is in receipt of a single parent pension with Centrelink which she uses to support herself and the child. The father does not currently provide the mother with any financial support for the child nor has she ever received any child support from him.

7. The orders sought by the mother and supported by the ICL would see a maintenance of the status quo for the child. In light of the Court finding veracity to the mother’s claims regarding the father’s perpetration of violence, as opined by the family consultant, orders that the child spend time with the father would be unlikely to result in any benefit to the child but only involve risk to the child and mother. Further, it is likely that if the child did commence contact with the father, this would likely have a significant deleterious effect on the mother’s well-being and mental health and, therefore, her parenting.

8. The mother has at all times been responsible for all of the child’s needs including cleaning, cooking, bathing her as well as attending to medical appointments relating to the child. Records produced from the child’s preschool record that the child is always appropriately dressed and has a well packed, balanced/sufficient and nutritious lunch box (Exh “G”). The records from the child’s preschool also indicate that from their perspective the child “appears to be developing at age appropriate level while continuing to develop communication and cognitive abilities (sic).” The mother’s parenting capacity is without question.

9. Given the father’s non-compliance with directions and infrequent attendance before the Court, the orders sought by the mother would be least likely to lead to the institution of further proceedings.

10. A consideration of the s 60CC factors having regard to the background of this matter and the reality that the child has no relationship with her father supports the making of orders as sought by the mother as being in the best interests of the child. Such orders will allow the mother to provide for the child with the support of the maternal family without fear of the father.

11. The mother also sought orders which would permit her to obtain a travel document for the child without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the other parent. In the circumstances of this matter where the father has played no role in the child’s life since she was very young, it is proper for the mother to be able to obtain a passport for the child without the consent of the father and to be able to travel as she wishes.

12. Otherwise, the mother sought injunctive orders for her and the child’s protection and restraints against the father from entering upon or remaining upon or loitering near premises occupied or attended by her and the child. In the circumstances of the case, particularly in light of the father’s conviction for the offence perpetrated towards the mother, the Court is satisfied that such orders are proper.

13. All the aforementioned considerations are indicative of orders being made in the best interests of the child as sought by the mother.

14. Orders will be made accordingly.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 21 November 2019.

Associate: 

Date:  21 November 2019