Knight & Knight (No 2)
[2022] FedCFamC1F 799
Federal Circuit and Family Court of Australia
(DIVISION 1)
Knight & Knight (No 2) [2022] FedCFamC1F 799
File number(s): WOC 256 of 2019 Judgment of: SCHONELL J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk – Where the third respondent sought for one of the children to live with him or alternatively to spend time with him – Where the maternal grandmother and mother have reported being scared and terrified of him – Where the third respondent has been the perpetrator of violence – Where there is an unacceptable risk posed to the child by the third respondent – Order made for the child to spend no time with the third respondent. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 102NA
Children and Young Persons (Care and Protection Act) 1998 (NSW)
Cases cited: Knight & Knight [2022] FedCFamC1F 797
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 17 – 19 October 2022 Place: Wollongong Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Williamson Isabella Lawyers and Public Notaries The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Hopper Solicitor for the Second Respondent: Inner West Solicitors Pty Ltd The Third Respondent: No Appearance Counsel for the Intervener: Mr Anderson Solicitor for the Intervener: Crown Solicitor’s Office Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Rowley & Associates ORDERS
WOC 256 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B KNIGHT
Applicant
AND: MS C KNIGHT
First Respondent
MR MARSH
Second Respondent
MR CLIFTON
Third Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
19 OCTOBER 2022
THE COURT ORDERS THAT:
1.Y spend no time with and have no communication with Mr Clifton.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Knight & Knight has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to two children, X born in 2017 who is currently aged five and a half years and Y born in 2019 who is currently aged three and a half years. Both children currently reside with their maternal grandmother. On 31 July 2020, the Department of Community and Justice (“the Department”) assumed the children into their care pursuant to the Children and Young Persons (Care and Protection Act) 1998 (NSW).
The parties to the litigation were the maternal grandmother, with whom the children currently reside; their mother; Mr Marsh who is X’s father; Mr Clifton who is described as the psychological father of Y; Mr Roberts, the biological father of Y; the Department; and the Independent Children’s Lawyer (“the ICL”).
On 19 May 2022, the Court made orders and directions setting the matter down for trial, directing the filing of affidavits and amended applications and responses and made, in the case of the mother, Mr Marsh, Mr Clifton and Mr Roberts, orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). As it was, neither the mother, Mr Clifton or Mr Roberts, availed themselves of the opportunity to obtain legal representation. Mr Marsh for his part, however, did, and he was represented at the hearing by counsel.
Mr Roberts, the biological father of Y, is presently incarcerated at a correctional facility. His earliest release date is mid-2023. He appeared on the first morning of the trial by way of electronic link and after discussions with the ICL, indicated that he did not wish to seek any orders and sought leave to withdraw. With the consent of all parties such leave was granted and Mr Roberts took no further part in the proceedings.
Mr Clifton and the mother were in a relationship for some years. That relationship started prior to the birth of Y and seemed to end in or about mid-2020. Mr Clifton is recorded on Y’s birth certificate as her father. It was for a time an issue as to whether he was her biological father. Testing has established that he is not and that Mr Roberts is her father.
Mr Clifton did not comply with directions for the filing of Responses or affidavits. On the first morning of the hearing he prepared a handwritten statement, which became Exhibit 2 in the proceedings. That statement records the following:
To the Judge,
The orders I seek are to see [Y] as much as possible. My Daughter is 15 and also feels [Y] to be her sister.
I have been a single father to [R] since birth as her mother passed away.
I own a house and can provide [Y] with everything she needs as I did when she was brand new in [Ms C Knight’s] belly till 2¾ years old.
[Y] deserves to be with us as we are a big part of all she knows.
I have a brother/sister and grandparents that care for [Y] dearly.
I feel it is only fair we continue to be in her life as [Mr Roberts] hasn’t met her is still in jail for year or so and I am also on birth certificate.
I would love custody of [Y] but would agree to weekend visits at the least if that was the case till I file for custody.
[Mr Clifton]
(As per the original)
The Department, the ICL and the maternal grandmother were opposed to Mr Clifton having any time, supervised or unsupervised, with Y. Mr Marsh did not have a position in relation to Y, whilst the mother prevaricated, initially supporting a supervised regime but ultimately coming to the conclusion that she was opposed to time but that if time were to take place, it should be supervised and after there had been a series of drug tests demonstrating that Mr Clifton was drug free.
Mr Clifton attended for the first morning of the hearing but was not present when the proceedings resumed after lunch. He appeared the next day. Some of that day was spent cross-examining the mother.
During the course of the mother’s cross-examination, Mr Clifton made a number of inappropriate comments, commenting on the mother’s cross-examination. As a consequence of these comments and what appeared to be the mother disavowing various assertions that she had made to the Court Child Expert, I stopped the mother’s cross-examination and directed that she give her evidence for the remainder of her cross-examination by video link. My reasons for doing so are set out in my judgment of Knight & Knight [2022] FedCFamC1F 797.
Having heard all of the evidence, I am satisfied that Mr Clifton’ comments were designed to intimidate the mother while she gave her evidence.
After the mother’s cross-examination, the Court Child Expert gave evidence. She said that if the family violence allegations were accepted then time between Y and Mr Clifton could re-traumatise Y.
During the giving of her evidence, at about 3.20 pm, Mr Clifton stood up and announced that he intended to withdraw and take no further part in the proceedings and left. He did not re-appear the next day.
All parties with the exception of Mr Marsh supported a positive order that Mr Clifton spend no time with Y.
For the reasons that are set out below, I am of the view that Mr Clifton poses an unacceptable risk. That risk, in my view, cannot be accommodated by supervision. For the reasons that I set out below, I propose to make an order that Mr Clifton spend no time with Y.
The maternal grandmother relied upon the following documents:
(1)Amended Initiating Application filed 13 October 2021;
(2)Affidavit of maternal grandmother filed 8 September 2022; and
(3)Affidavit of Mr D filed 8 September 2022.
The maternal grandmother was cross-examined. Mr D was not cross-examined by any party.
The Department relied upon a Response and affidavits of Ms E filed 5 October 2022 and Ms F filed 12 October 2022. Neither of these witnesses were required for cross-examination except by the mother who asked some questions of Ms F.
Mr Marsh relied upon an affidavit filed 12 October 2022. He was cross-examined by all parties with the exception of the mother.
Mr Clifton and the mother produced handwritten statements.
A Family Report dated 28 July 2021 was prepared by the Court Child Expert, Ms G. The Child Court Expert was cross-examined by all parties.
I have read all of the material relied upon including the exhibits.
In the course of the mother’s interviews with the Court Child Expert, the Court Child Expert recorded as follows:
54.[Ms C Knight] denied that alcohol is, or has been, a problem for her. She acknowledged previous use of illicit drugs and said that she was introduced to these by [Mr Clifton] during their relationship. She said that she was caught driving under the influence of illicit drugs when she “took the rap” for [Mr Clifton] when they were both using methamphetamine. She said that [Mr Clifton] would sell drugs and is involved with criminal influences, stating that she has witnessed people with guns visit his home. She said that [Mr Clifton] would use marijuana daily and methamphetamine about once per week. She denies that she is using any drugs currently.
55.[Ms C Knight] spoke of experiencing significant family violence during the relationship with [Mr Clifton]. She said that she remains fearful of him and is opposed to his having any ongoing contact with the children. She said that she remains haunted by experiences with [Mr Clifton] and the exposure of the children to the violence, citing an example of [X] coming with a towel to assist her to clean up blood after an assault on her face by [Mr Clifton]. [Ms C Knight] stated that she initially thought the relationship with [Mr Clifton] offered her stability and the chance to avoid jumping from refuge to refuge, but there was escalating control and violence as the relationship progressed. She estimated the police attended the home fifty times during the relationship. She said that she was not allowed out of the home to the shops, not allowed to talk to men or have online apps like Facebook, and that her bank and any social media has since been “hacked” by [Mr Clifton]. She said that [Mr Clifton] would threaten and manipulate her, for example to drive him to obtain drugs or to engage in sexual and other activity she did not want to do, and she knew if she resisted she would be “bashed”. She said that she was not permitted to have contact with her family and [Mr Clifton] would prevent [X] from spending time with [Ms C Knight]
56.[Ms C Knight] acknowledged that there were times she would violently resist [Mr Clifton] and hit back. She said that she has suffered injuries from him, including a split lip and chipped tooth. She said that [Mr Clifton] would be violent to [X], smacking him on the bottom or back of the head, stating [Mr Clifton] “used to belt [X]” and taunt him to telephone his father, [Mr Marsh], who he referred to as “slippery dip Dad”. She said that [X] is, as a result, “terrified of [Mr Clifton]” and, even now, will become distressed if he overhears his name. She said that while she tried to protect the children at times from experiencing the violence, by having [R] take them to another room or anticipating and avoiding conflict where she could, [X] saw much of “what [Mr Clifton] did to me”. In her recounting of the alleged violence, [Ms C Knight] appeared tearful and distressed. She seemed reluctant to expand on her account. It appeared to the writer that there was much more detail that [Ms C Knight] perhaps found too difficult to disclose.
57.[Ms C Knight] said that, in addition to direct harm from [Mr Clifton] himself, she is worried about the children inadvertently being caught up in violence because of the criminal connections [Mr Clifton] has. She said that she is fearful that one of the drug dealers [Mr Clifton] allegedly associates with may become upset with him and want retribution and be unbothered whether small children are there. Furthermore, [Ms C Knight] stated that there is no benefit to [Y] in having contact with [Mr Clifton]. She believes this is confusing to [Y] as she needs to focus on building a relationship with her biological father and his family. [Ms C Knight] said that she was forced by [Mr Clifton] to say that [Y] was his child but she knew that this was not possible because of the conception dates. She said that she felt pressure from [Mr Clifton] to recreate a sense of a fantasy family and she considers that, in some ways, he saw her as a replacement for [R’s] mother who had passed away. She said that [Mr Clifton] appeared motivated to have occasional “family outings” where he was keen to “make it look like a happy family”. Beneath the surface, she said that he was often abusive and uninvolved, would rarely assist with [Y]’s care and would yell at [Ms C Knight] to stop [Y] crying. She said that she worries about his older daughter, [R], who she has heard is rebelling, making Tik Tok videos, vaping and self-harming and has been banned from a local shopping mall for shoplifting. [Ms C Knight] said that she feels helpless to support [R].
58.[Ms C Knight] spoke of her own exposure to family violence as a child, describing graphic incidents of this. She said that involvement with [Mr Clifton] has been triggering for both herself and her mother and they remain very fearful of [Mr Clifton]. She spoke with some frustration, stating that she lost care of the children because of her relationship with [Mr Clifton], and she cannot understand how he is now being supported to remain involved with [Y]. She spoke of the psychological damage to the children and the wider family were [Mr Clifton] to continue to be involved. She said that [Mr Clifton] having time with [Y] will “mentally and emotionally break me”.
The Court Child Expert observed in relation to Mr Clifton the following:
120.[Mr Clifton’s] position is complex. It is established that he is not [Y]’s biological father, but he claims that he is an important psychological figure to her, having been in her life substantially during her first year. He spoke fondly of [Y] and he appears motivated to be involved in her life and to have her involved with [R]. [Mr Clifton] appears to have an affinity with [Y] and it seems she represents an important part of his family. It may also be that he is sensitive to the loss of this relationship having formed a bond with her, and having already experienced the loss of a relationship with a partner’s child in the past, when his connection with stepchild [H] was ruptured. [Mr Clifton] argues that he poses no risk, and only benefit, to [Y]. Generally, children benefit from having involved and interested carers in their life and this can be enriching and foster a strong sense of connection and continuity. However, [Mr Clifton’s] time and involvement with [Y] is very strongly opposed by the maternal family. The mother, maternal grandmother and [Mr Marsh] all indicated in their screening that they have some fears of him. It is reported that [X] also has fears.
121.It is alleged that [Mr Clifton] has perpetrated serious family violence and that this violence was integral to the removal of the children from their mother’s care. There are reports that [Mr Clifton] was physically abusive to [X] and [Ms C Knight], neglectful and placed the children at physical and emotional harm. [Mr Clifton] denies these claims but there appeared to be little depth or reflection in his account during interview. While [Mr Clifton’s] behaviour was appropriate in interview, there is evidence that, in other contexts he has behaved in an aggressive manner, such as with DCJ. The potential risks of [Y] having time are that, if the maternal family’s account is accurate, she may be exposed to possible family violence and abuse, drug use and criminal behaviour. There is also the risk that she could be used as ongoing tool by [Mr Clifton] to exercise coercion and control over her mother. In addition, there is concern that this relationship may create confusion and distress for [Y], particularly given the maternal family’s lack of support for the connection, their apparent fear of [Mr Clifton], their anxiety about time, as well as confusion for [Y] in terms of her identity and relationships. [Y] would be placed at the centre of likely ongoing conflict, as she will have differing information and guidance about who her father is. It was concerning that even her name appears disputed, and how it is pronounced. This seems symbolic of the different meanings and environments she would likely have to navigate were she continue to have ongoing time and contact with [Mr Clifton]. DCJ have advised that they would be unable to support anything other than supervised time between [Y] and [Mr Clifton]. Long term supervision can be onerous, confusing and difficult for children, especially if the time is controversial or unsupported by the primary carer/s.
122.Whether in fact [Mr Clifton] is an important attachment or “psychological figure” is also disputed. [Mr Clifton] argues that he was significantly involved in [Y]’s care and “raised” her, while the maternal family report that he has had minimal contact in the past year and was absent at times during her first year of life. They state that, rather than him being a secure base and positive caregiver to [Y], he was, at best, an inattentive carer and at worst an abusive one. If the maternal family’s account is accurate, it is difficult to reconcile what the benefit would be of [Y] maintaining contact and a relationship with [Mr Clifton]. If as [Ms C Knight] claims, she lost care of the children because of her relationship with [Mr Clifton] and the violence he allegedly perpetrated, it seems incomprehensible that he should continue to be involved. If the Court finds that there is on-going risk posed by [Mr Clifton] and finds veracity in the claims of the maternal family, there may be benefit in the Court considering possible injunctions. Even if [Mr Clifton’s] account is accurate and he does not pose risk in any of the areas alleged, it is difficult to see how [Y] would be free to enjoy her relationship with him, given the context and concerns raised.
123.It is not possible within this assessment to comment on the appropriateness of [Y] having a relationship with her biological father, [Mr Roberts]. While it is important generally for children to know their background and this is important for their sense of identity and being in the world, there is a sense of the maternal family grasping on to the prospect of an alternative father figure to [Mr Clifton], to perhaps lend weight to his not being involved. The maternal family seem committed to facilitating a relationship with [Mr Roberts’] family. While it is hoped that this can be a positive for [Y], she can ill afford to have further disruption and negative influences in her life.
Her ultimate recommendation was that there be no time between Y and Mr Clifton. She reaffirmed that position in her oral evidence.
The child’s primary carer, the maternal grandmother, is opposed to there being time between Mr Clifton and the children. It is to her that falls the obligation of caring and protecting these children. Mr Clifton has threatened the maternal grandmother. She gives evidence in her affidavit to the following effect:
64. At 03:00am [Mr Clifton] rang me back. By this time the whole house was up and [Mr J] sat next to me to listen to [Mr Clifton’s] phone call. I did not speak during the call but [Mr Clifton] was speaking as if directly at [Ms C Knight], making me think he thought [Ms C Knight] was with me. He said words to the effect of, “If she does not come home, I will blame all the bruises on her” and "She has 1 hour to come home or else.” He then started calling me vile names such as “bitch”, “skank” and “slut” and was ranting and raving. The conversation went for a good 6 or 7 minutes. I was still extremely concerned about [Ms C Knight] and the children so I called the child protection hotline.
…
70. On Sunday 13 October 2019 I had arranged with [Ms C Knight] to pick up [X] at the [K Building] at [L Park]. On the morning of change over [Ms C Knight] called me and asked, “Can you pick up [X] from my house?” I did not feel comfortable to go to her house again and said no, [Ms C Knight] then said, “Well then [Mr Clifton] will drop off [X].” I could hear [Mr Clifton] in the background saying, “Dare you to nanny, you fucked up mole.” I am extremely scared of [Mr Clifton] and did not have to interact directly with him so I agreed to collect [X] from her at their driveway.
71. On 14 October 2019 [Ms C Knight] called me and said to me, “You’re not having [X] anymore.” I tried to speak to [Ms C Knight] and find out what the issue was, things got heated between [Ms C Knight] and I and I said to her words to the effect of, “You keep breaking the Court Orders. All your Hes are going to being you undone.” I could hear [Mr Clifton] in the background threatening me saying, “I flog ya bitch”. I understand the reason [Ms C Knight] called me was because they received a message from someone, but I do not know who it was from or what the message said to cause her to cease my time with [X].
…
126. [Ms C Knight] has told me that she and the kids would often barricade themselves in [X]’s room when [Mr Clifton] was violent and abusive. On one occasion when [X] was misbehaving, I put his in a timeout in his room for 5 minutes. When I went to open his door it was obstructed by a chest of drawers. [X] has tried to barricade the door. [Ms C Knight] said, “It’s because he's seen me do it at [Mr Clifton’s] lots of times.”
127. [Ms C Knight] has told me on more than once occasion that [Mr Clifton] has a gun.
128. I fear [Mr Clifton’s] violence towards [Ms C Knight] and the children.
129. [Mr Clifton] has posted about me on Facebook stating ‘fuck [Ms B Knight] the weasel little mut scum that runs pof paying it forward you ruin lives you scum and make people feel like there not worth existing we will meet in another life and hopefully I'm female cause I would kick the shit out of you and go to hellll’. Annexed hereto and marked with the letter ‘J’ is a copy of that Facebook post about me.
130. [X] has said many times that he is “scared of [Mr Clifton]”, that [Mr Clifton] “hurts him” and “smacks me hard”. [X] has had bad dreams about [Mr Clifton] and if he sees a similar car to his he will duck down and hide out of fear. [X] has also said “[Mr Clifton] hurt mummy” and “[Mr Clifton] hit mummy”.
(As per the original)
The Child Court Expert gave evidence that the maternal grandmother and mother both reported that they were scared and terrified of Mr Clifton.
That alone would be sufficient to warrant a no time order.
Mr Clifton’s criminal record is in evidence before me (Exhibit 11). I have read it and it reveals chronic recidivism.
It is contended by him that he has had a relationship in the past with Y. For a period of time, the Department fostered time between Y and Mr Clifton on a supervised basis. The evidence of Ms F reveals the following:
46. On 8 June 2020, Communities and Justice received a risk of significant harm report in relation to domestic violence. According to the report, on 28 May 2020 an altercation took place between [Mr Clifton] and the mother, during which [Mr Clifton] placed his hands around the mother's neck and squeezed with both hands. Both children were reportedly present during the incident and later that day, [X] mimicked the actions and put his hands around the mother’s neck.
…
48. On 12 June 2020, the mother and [Y] were accepted into [M Service] [(“M Service”)], a refuge for women leaving domestic violence. [X] did not stay in the refuge but remained in the care of the maternal grandmother at night.
…
66. During the meeting with the mother and [Mr Clifton] on 24 August 2020, the Family Action Plan was discussed with [Mr Clifton]. The plan required that [Mr Clifton] attend urinalysis testing for three months, that he attend parenting courses and participate in a men’s behaviour change course. [Mr Clifton] informed us that he did not agree that he needed to participate in a parenting course, as he had parented [R]. The plan required that [Mr Clifton] drop the mother at her visits with the children five minutes prior to visits, and collect her five minutes after this visit had ended. This was due to concerns about his intimidating behaviour. [Mr Clifton] did not sign the plan. We left the plan with [Mr Clifton] to review and asked that he advise us of any amendments. [Mr Clifton] agreed to provide his amended plan to me on 25 August 2020. [Mr Clifton] signed a document to attend urinalysis for a period of three months.
67.On 31 August 2020, a meeting was held between [Mr N], the mother, [Mr Clifton] and I at [City O] Community Services Centre. The purpose of the meeting was to address the mother not being contactable by phone as agreed in the Family Action Plan and also to discuss the amendments to the Family Action Plan that [Mr Clifton] was proposing. [Mr Clifton] did not provide his amended plan and said that he had not reviewed it. We discussed with [Mr Clifton] that he was not to remain in the vicinity of the mother's contact due to concerns about his past intimidatory behaviour. During the meeting, [Mr Clifton] became heightened, agitated, argumentative and not open to any discussions. As a result of [Mr Clifton’s] presentation, [Mr N] terminated the meeting prematurely. The mother and [Mr Clifton] were informed that they could reschedule a meeting on 4 September 2020. The mother and [Mr Clifton] did not reschedule a meeting on 4 September 2020.
…
71. Between August and October 2020, Communities and Justice requested that [Mr Clifton] attend urinalysis on eight occasions at [P Health Service]. [Mr Clifton] attended on two occasions, on 25 August 2020 and 1 September 2020. [Mr Clifton] did not attend on six occasions.
72. I understand that [Mr Clifton] attended the urinalysis appointment scheduled on 25 August 2020. However, the urinalysis did not proceed as [P Health Service] had not received the referral letter from Communities and Justice.
73. [Mr Clifton] attended urinalysis testing on 1 September 2020. The results were positive for codeine, morphine and cannabis metabolites. A copy of the urinalysis results is at pages 31 to 32 of Exhibit RP1.
74. On 3 September 2020, I sent [Mr Clifton] a text message requesting that he attend urinalysis the following day between 1 0:00am and 3:00pm. [Mr Clifton] replied by text message stating that he could not attend urinalysis on 4 September 2020 because he had a hearing that day. I responded to [Mr Clifton] by text message requesting that he attend urinalysis, noting that the court hearing was not scheduled to commence until 2:00pm. [Mr Clifton] responded to me, indicating that he could not attend.
75.On the morning of 4 September 2020, I sent [Mr Clifton] a text message, reminding him that a failure to attend urinalysis as scheduled would mean that the results would be deemed positive. [Mr Clifton] did not attend urinalysis testing on 4 September 2020.
76. On 9 September 2020, [Mr Clifton] telephoned me to advise that the positive urinalysis result he received on 1 September 2020 for opiates was due to medication he was taking for a shoulder injury. [Mr Clifton] informed me that he smoked cannabis every second day but did not disclose the quantity used, suggesting that it was “up to you to find out”. He revealed that he spent around “$10 here and there” for his cannabis habit.
77. On 16 October 2020, [Mr Clifton] sent me an email requesting that I send him a copy of the Family Action Plan (from August 2020 which he previously refused to sign) so that he could sign it.
78. On 22 October 2020, I sent [Mr Clifton] a text message to request that he attend urinalysis testing the following day on 23 October 2020. [Mr Clifton] telephoned me and we discussed my request that he attend urinalysis testing the following day. [Mr Clifton] said to me: "why should I work with you, I wanted to see [X] today". During our conversation, [Mr Clifton] said that he sent me an email on 16 October 2020 requesting a copy of the Family Action Plan so that he could sign it. I stated that I was on leave from 13 to 16 October and that the plan was due to be signed on 24 August 2020. During our conversation, [Mr Clifton] was speaking rapidly and sounded argumentative. [Mr Clifton] did not attend urinalysis testing on 23 October 2020.
…
124. On 23 November 2020, the Court made an order that [Mr Clifton] spend time with [Y] at such times as directed and arranged by the Secretary or his delegate. The Court noted that [Y’s] biological paternity was uncertain, but the Secretary accepted that [Mr Clifton] may be the psychological father of [Y].
125. Until April 2021, the Secretary arranged for [Mr Clifton] to have fortnightly visits with [Y] supervised by [Q Service], funded by Communities and Justice.
126. On 21 April 2021, [Mr N] and I held a meeting with [Mr Clifton] to discuss his contact with [Y]. We informed [Mr Clifton] that from May 2021, Communities and Justice would continue to facilitate his fortnightly contact with [Y] with [Q Service] or another supervised contact service, however, Communities and Justice could no longer fund the contact. [Mr Clifton] was sent a letter following the meeting confirming this. [Mr Clifton] thereafter had contact with [Y], supervised by [Q Service], which he self-funded. I understand that this contact ceased for reasons due to COVID-19 in 2021 and that contact is not currently occurring.
Mr Clifton has not spent time with Y for more than 12 months.
I accept the evidence of the mother and the grandmother and the evidence of the Court Child Expert. I adopt her observations and recommendations.
In her report, the Child Court Expert records in relation to both children:
113.[X] and [Y] present as active and engaging young children. They have significant vulnerability and appear to have a history of disruption and trauma. The challenge for the Court appears to be to safeguard the developmental gains they have made and to ensure that any future arrangements for them are safe and build on their stability. Due to their difficult histories, the children require high level, positive and attentive caregiving and protection from further risk or disruption.
114.It would appear that [X] and [Y] may have some family history of mental health/ behavioural difficulties and they appear to have a complex history of intergenerational trauma and attachment difficulties. There have been disruptions to their caregiving at a critical time in their development, that is in the prenatal and 0-3 year period. At a time when children ideally require stable, predictable, warm and attuned caregiving, it appears that they may have been exposed to instability and inconsistent caregiving as well as experiences which may have been frightening. Such experiences occurring at this sensitive time of development are particularly challenging for children as their brains are only developing and are negatively impacted by these experiences. Traumatic experience can cause the child’s nervous system to be flooded with stress hormones, causing a fight/ flight/ freeze response. Coinciding with these traumatic events the children were of ages when attachments are typically being formed, optimally forming trusting and responsive relationships which will then be a model for future relationships and interactions. For [X] and [Y] there appears to be some indication that there may have been difficulties with the children’s attachment formation. In the absence of safe, predictable and consistent caregiving it seems that [X] may have developed some disorganised behaviour, with the maternal family describing him behaving violently, self-harming and being fearful. Likewise it seems [Y] may have been displaying some avoidant behaviours. The maternal family’s account of [Y] appearing blank, doll like and not displaying emotion, indicate that the children may have experienced attachment difficulties and have developed some maladaptive coping mechanisms.
I am being asked to make a parenting order. A no time order is a parenting order
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the child’s parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
Despite being named on her birth certificate, Mr Clifton is neither a biological or adoptive parent. In those circumstances s 60CC(2)(a) is not applicable. Even if it were, it is subservient to questions of risk.
In Mulvany & Lane (2009) FLC 93-404, the Full Court constituted by May and Thackray JJ stated as follows:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
I have considered all of the s 60CC matters. I am satisfied that on the material before me that the primary consideration of the need to protect Y from a risk of harm overwhelms any of the other matters that might otherwise be a relevant consideration within the terms of s 60CC(3). The risk of harm is the most pressing and prevailing consideration in this matter.
I am comfortably of the view that Mr Clifton poses an unacceptable risk to Y, to the mother and to the maternal grandmother. He has perpetrated family violence upon Y’s mother, grandmother and Y’s brother X. Y has been present when family violence has occurred. She is also a victim of family violence perpetrated by Mr Clifton. He has in the past exposed the children to criminal elements and drug use and I have no confidence that he would not do so again should he spend time with Y.
Y is a vulnerable little girl who needs protection and stability. I am comfortably satisfied that even supervised time with Mr Clifton imperils both of those primary needs of Y.
I propose to make the order sought.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 19 October 2022