Lamine & Lamine
[2021] FamCA 252
•10 May 2021
FAMILY COURT OF AUSTRALIA
Lamine & Lamine [2021] FamCA 252
File number(s): PAC 1800 of 2017 Judgment of: HANNAM J Date of judgment: 10 May 2021 Catchwords: FAMILY LAW – CHILDREN – Undefended parenting – Where the father did not follow trial directions and made an oral application for an adjournment on the date listed for undefended hearing – Where there are allegations of significant family violence – Where there has been no contact between the children and the father since 2015 – Where the mother seeks orders that she have sole parental responsibility, that the children live with her, that the children spend no time with the father – Where the ICL supports orders sought by the mother – Where it is in the best interests of the children to make orders as sought by the mother. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA Cases cited: G & C [2006] FamCA 994
Mazorski & Albright (2007) Fam LR518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Number of paragraphs: 117 Date of hearing: 16 December 2020 Place: Parramatta ORDERS
PAC 1800 of 2017 BETWEEN: MR LAMINE
ApplicantAND: MS LAMINE
RespondentSHEDDEN & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The mother has sole parental responsibility for X born … 2011 and Y born … 2013 (“the children”).
3.The children live with the mother.
4.The children spend no time with the father.
5.Until further order each party, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X a female born … 2011 and Y a male born … 2013, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders their removal.
6.The marshal and all officers of the Australian Federal Police and the police forces of the States and territories are requested and authorised to give effect to these orders.
7.At any time the mother is permitted to relocate the residence of the children to any place in the Commonwealth of Australia. The number of such relocations and place of such re-location may be solely determined by the mother and without notice to or permission from Mr Lamine (“the father”).
8.Pursuant to Section 68B of the Family Law Act1975 (Cth) the father shall be and is hereby restrained from:
(a)living with, spending time with or communicating with X born … 2011 and Y born … 2013 (“the children”) or either of them;
(b)directly or indirectly approaching and/or communicating with Ms Lamine born … 1983 (“the mother”) and/or the children (including but not limited to) in person, by telephone, email, SMS, social media, internet, facsimile and/or letter;
9.Order 8 is an order for personal protection of the children and the mother to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).
10.Leave is granted to the mother to provide to any school staff and/or school authority and/or State Welfare authority a copy of these orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamine & Lamine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
These proceedings concern the long term parenting arrangements for the parties’ two children, a girl aged nine (“the older child”) and a boy aged eight (“the younger child”).
The parties were married in 2009 and the marriage quickly became one characterised by abuse and family violence perpetrated by the father against the mother until she eventually fled the former family home with the children in 2015.
Despite fleeing the family home the mother and children have continued to face threats to their safety and have moved to at least four locations.
The father commenced proceedings in the Federal Circuit Court in April 2017 seeking orders that he hold equal shared parental responsibility for the children with the mother, that the children live with the mother and spend time with him after school one day per week and for two days during the holidays. The mother filed a Response seeking that she have sole parental responsibility, that the children live with her, that the father have no contact with the children and that the children be placed on the Family Law Airport Watchlist.
In July 2018 it was recommended by a family consultant in the Child Responsive Program Memorandum that the Court would be greatly assisted in its determination by an expert report. The proceedings were then adjourned for the parties to reach agreement about the appointment of an expert with the ICL being given liberty to contact chambers to relist the proceedings if an agreement could not be reached. Funding of the report proved to be a significant issue and the proceedings were not relisted until July 2020.
After July 2020 the father was effectively disengaged from the proceedings as he failed to attend numerous court events and did not file any further evidence despite trial directions being made on two occasions.
The father attended the final hearing in December 2020 and made an oral application for an adjournment on the basis he had not sought legal advice despite being encouraged to do so by a Registrar at a court event in July 2020. The application for an adjournment was dismissed for reasons given at the time and the mother’s application for final parenting orders proceeded on an undefended basis as against the father.
BACKGROUND
The mother who was born and raised in Australia is 37. She and the father, who is 36 and was born in an African country, were married in 2009 and began living together shortly after. The mother has two daughters from a previous relationship, now aged 18 and 15 (collectively “the mother’s older children”), who also lived in the former family home.
The older child, a daughter, was born in 2011 and is now aged nine. The younger child, a son, was born in 2013 and is now aged eight.
Throughout the parties’ marriage the mother deposes that the father was violent towards her and the children and that his abusive and violent behaviour led to their separation in August 2015. The mother provides a substantial account of the family violence experienced both during and after separation and this is an issue to which I will return.
Following separation the mother relocated with the children and there has been no contact between the father and the children since this time.
In September 2016 an Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother and the children.
In April 2017 the father filed an Initiating Application in the Federal Circuit Court seeking orders that the parties have equal shared parental responsibility for the children and that the children live with the mother and spend time with him after school for a few hours each week and for two days during each school holidays.
In November 2017 the mother filed a Response seeking orders that she have sole parental responsibility for the children, that the children live with her, have no contact with the father and be placed on the Family Law Airport Watch list.
The proceedings were transferred to this Court in November 2017.
In April 2018 the father’s lawyer filed a Notice of Ceasing to Act and the father thereafter has represented himself.
In June 2018 the parties met with a family consultant for the purposes of the Child Responsive Program. The contents of the family consultant’s Memorandum to the Court (“the Memorandum”) dated 6 July 2018 is a matter to which I will return later in these Reasons. It suffices to say that when interviewed by the family consultant the mother recounted a significant history of family violence perpetrated by the father. For this reason the family consultant opined that it was unlikely that the mother would be able to facilitate a relationship between the children and the father. Due to the seriousness of the allegations and the issues raised by the mother the family consultant recommended the Court would be likely to benefit from appointing a single expert to conduct a comprehensive child and family psychiatric assessment.
In July 2018 the Memorandum was released to the parties and an order was made for an Independent Children’s Lawyer (“ICL”) to be appointed.
In September 2018, in line with the family consultant’s recommendation, the ICL made an application to the Legal Aid Commission for funding of an expert report. The father was also directed to explore all avenues available to him for the funding of the report. The ICL was provided leave to approach chambers for a relisting if no agreement could be reached in relation to an expert and payment for the report.
Despite the ICL being given liberty to approach chambers to relist the proceedings they were not listed again until July 2020.
At a Court event before a Registrar in July 2020 the ICL informed the Court that she had only been able to make contact with the father for the first time the previous week. The father also notified the Court that he was not working due to COVID-19 restrictions and was unable to fund an expert’s report.
In September 2020 the matter came before me for a case management hearing. At this Court event there was no appearance by the father, despite him being aware of the listing and notifying the ICL that he intended appearing by telephone. Due to the father’s disengagement with proceedings, and as the mother still sought parenting orders, the mother’s application was listed for an undefended hearing on 15 October 2020.
On 15 October 2020 I adjourned the undefended hearing for the purpose of providing the father an opportunity to reengage in the proceedings. Trial directions were made and the proceedings were then listed for 16 December 2020, with a view to the dispute being determined on an undefended basis if either party failed to comply with trial directions.
The father failed to file any material in accordance with the trial directions but appeared in person on 16 December 2020 and made an oral application for an adjournment.
The adjournment was sought by the father on the basis that he had not yet sought any legal advice despite being advised to do so by the Registrar at the Court event in July 2020. The father provided no explanation to the Court why he had not taken any reasonable steps in attempting to obtain legal advice over the previous five months.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14, and to the principles for the conduct of child-related proceedings (see s 69ZN of the Family Law Act 1975 (Cth)), in my view, it was is in the best interests of the children for the proceedings to be finalised. The oral application for an adjournment was dismissed and the matter proceeded on an undefended basis.
THE CHILD RESPONSIVE PROGRAM MEMORANDUM
At the time the family met with the family consultant in June 2019 for the purposes of the Child Responsive Program there were no interim orders in place and the children had not had contact with the father for almost four years. There was a current ADVO protecting the mother and the children from the father and restraining him from having any contact with them.
It was the mother’s proposal at the time that she hold sole parental responsibility, the children live with her and the children be protected from the father through injunctions and their names being placed on the Family Law Airport Watchlist.
It was the father’s proposal that the parents have equal shared parental responsibility and the children live with the mother. He also proposed that the children spend unsupervised time with him after school two days per week and for two days during the school holidays, not including overnight time.
In her interview with the family consultant the mother reported various instances of the father perpetrating family violence towards her during their relationship. She told the family consultant that the father had strangled her, thrown her down the stairs, head-butted her, put chillies in her vagina and poked her in the eye with his thumb and penis. The mother also described incidents of sexual abuse where the father “sharpen[ed] his fingernails and cut [her] vagina” and “smother[ed] her with pillows and rip[ped] out her hair” if she tried to prevent him having sex with her. The mother asserted that the violence occurred when the father believed that she was not being “submissive enough” to him. She described one occasion where the father ripped her shoulder out of its socket.
As well as being physically violent, the mother alleged that the father was emotionally abusive and often denigrated her. She described that the father “isolate[d] her by checking her [phone]call history, telling her what she could wear and who she could see, and that he stalked her on her way to work”. She described him as being “relentlessly cruel with no empathy”.
The mother recounted to the family consultant several incidents of violence perpetrated by the father against her where she was required to receive medical attention. On one occasion the mother alleges that she was pregnant when the father threatened to kill her and “make [her] paralysed”, and that he squeezed and crushed her abdomen so that she had a miscarriage. On another occasion she alleges that the father slammed the door on her foot and crushed her hand when dragging her and shaking her. The mother says she attended her doctor following this incident but no X-rays were taken, nor did she mention the circumstances of her injuries to the doctor.
According to the mother, she was not the only target of the family violence and abuse perpetrated by the father. She described an incident when the younger child was a baby, when the father grabbed the older child out of her arms and “shook her like a rag doll” and threatened to throw her out the window. The mother also alleged that the father frequently smacked the children on the head and face, and pushed her older children downstairs, slammed them against a wall and tried to choke them. The mother also alleged that the father touched the breast of the older child from her previous relationship and “would walk into the shower when she was in there and would watch her”. The mother asserted that these incidents were at the time of the interview being investigated by the Joint Incident and Response Team (“JIRT”). She further alleged that the father had child pornography on his laptop as well as pictures of corpses and that he was is involved in a crime gang.
The mother also expressed serious concerns to the family consultant when interviewed that the father intended to take the older child to Africa to undergo female genital mutilation as she overheard the husband speaking on the phone with the paternal great-aunt to organise this.
The mother told the family consultant that when the younger child was one year old the father took this child with him on a business trip overseas and left the child in the care of strangers. The mother described the child as being “distraught” when he returned home and that he had lost weight, would not eat and was not sleeping properly.
When the family consultant raised the mother’s allegations regarding family violence with the father he expressed that the mother was attempting to alienate him from the children to gain an advantage in the proceedings. The father raised his own allegations of family violence perpetrated by the mother, giving examples of her screaming at him, slapping him on the face, punching him and on one occasion threatening him with a knife. The father alleges that the mother did not want him to attend the Church he was attending at the time due to the pastor instructing women to respect their husbands. The father told the family consultant that the pastor had advised him that it is illegal to hit a woman in Australia and if their arguments became too heated he should leave the house.
The father denied that he has had any intention to take the older child to Africa to undergo female genital mutilation. He stated that he is a Christian and does not believe in this practice.
The father also raised concerns in regards to the mother’s temper stating that she angers easily and “becomes violent”. He stated that he once witnessed her slap the older child when she would not go to sleep. The father also had concerns that a relative of the mother’s previous partner had assaulted the older child from the mother’s previous relationship and been gaoled for his actions, though the mother said that this person would never be in contact with the children.
The father described the mother as a “lovely person” and indicated that he would have no problems communicating directly with her but he acknowledged that she did appear to have problems communicating with him.
The mother stated that she did not want the father to have any contact with the children due to the violence that occurred when the family lived together and his alleged criminal connections. The mother gave details that the father had been imprisoned in an overseas country for “fraud and trafficking”, had his visa cancelled in another overseas country and had been detained in a third country. The mother also alleged that the father was connected to a crime gang but she did not know the extent of the connection. The mother also claimed that the father “has no regard for human life” and told her he has “buried people in concrete”.
The mother expressed to the family consultant that she spent significant time considering whether to leave the relationship before making the decision to flee due to the father’s criminal connections. She said that upon leaving the relationship she was “bombarded” with his associates monitoring her and for this reason she has had to re-locate several times and is fearful of the husband knowing her address or any other personal information which may help him locate her and the children. When the mother was asked about the possibility of the children spending time with the father at a supervised contact centre, she declared that this would be “inhumane, abominable and beyond wrong” and that it would re-traumatise the children and put them all at risk. The mother expressed that the father did not have a good relationship with the children and was abusive to them when they were at home.
When the family consultant interviewed the older child she immediately told the family consultant that “[she] did not have a Dad because he is naughty”. This child strongly denied the suggestion that her mother and father were friends and went on to explain that her mother feared the father, providing an example of a recent time when she and the mother believed they saw the father at school and were fearful and went to the police. The older child explained they were all scared because the father is “a very bad guy; he’s a criminal” and was of the view that her mother would not like her to see the father because she could “get hurt”. The older child also told the family consultant that the father use to pull her hair and said “I’ll put you in a box and ship you to Africa”.
The younger child expressed to the family consultant that his family consisted of himself, the mother, the older child and the mother’s older children and that he did not have a dad. When asked further about the father he said “he’s bad”.
The family consultant evaluated that the children appeared to have an established relationship with the mother and a very tenuous one with the father. It was her opinion that the younger child had no memory of the father and the older child held a very negative view of him. She opined that it was for the Court to determine whether this view was due to the older child’s own experience or due to “partisan awareness” gained from the mother.
The family consultant was concerned about the mother’s allegations of the father’s violence, his mistreatment of the children and their possible exposure to organised crime and believed that the Court may need a better understanding of these issues before considering the issue of whether the children should spend time with him.
The family consultant evaluated the mother’s attitude towards the father as one characterised by extreme fear and mistrust and believed it would be difficult to imagine that she would be able to facilitate a relationship between the children and the father.
THE MOTHER’S ALLEGATIONS ABOUT RISKS POSED BY THE FATHER
Risk of family violence and abuse
In her trial affidavit the mother deposes to numerous incidents of serious family violence which she explains is not an exhaustive account but rather is illustrative of the severity of violence perpetrated by the father. Her allegations generally are in a similar vein to the matters she raised with the family consultant.
The mother deposes that once she and the father were married the father began to exhibit controlling behaviours such as draining her bank accounts and was seriously verbally abusive towards her including threatening to perform female genital mutilation on her.
In early 2010, the mother deposes that the father began forcing her to engage in sex with him and became increasingly violent. When this occurred the mother alleges that the father would gag, choke and smother her as well as trapping her and hitting her head against the bricks, floor and wall.
The mother deposes that the father is of the belief all women should be “circumcised” and on one occasion cut the hood of her clitoris several times with a razor blade while she was in the shower.
In summary, the mother alleges that the father violently raped and abused her throughout the entirety of their marriage and on several occasions she fell pregnant as a result of forced sex.
The mother deposes that in 2010 she became pregnant with twins and whilst pregnant she was brutally raped by the father causing her to suffer a miscarriage.
The mother gave a statement to police in relation to this incident which is annexed to her affidavit. In her police statement the mother recounts that when she was 12 weeks pregnant the father raped her and during the rape he pushed his hands into her stomach and under her ribs, causing her immense pain and rendering her unable to breathe. According to the mother’s police statement she began to bleed from the vagina and suffered a miscarriage, which resulted in her being hospitalised and the foetuses being surgically removed.
The mother deposes to another incident in 2011 when she was breastfeeding the older child. The mother deposes that the father was angry that he had not been receiving sufficient attention from her and took the baby from her arms, shook the baby and threatened to throw her out of the window.
In the same year, when the older child was approximately four months old, the mother asserts that the father tried to force the mother to travel to Africa for the purpose of female genital mutilation for both the mother and the older child.
The mother alleges that in late 2013, when the younger child was a baby, the father sexually abused this child after she gave him a bath. The mother deposes that she gave the unclothed baby to the father while she went to get him a nappy and when she returned the father was touching the child’s penis, pulling back the penis shaft repeatedly while saying “this is for the ladies”.
According to the mother’s affidavit the violent attacks perpetrated by the father against her often took place in the presence of the children. The mother deposes to the children witnessing her being strangled and dragged across the floor and on several occasions the children observed her naked and unconscious following an attack.
The mother alleges that the father also perpetrated violence against the children and deposes to an incident where he grabbed the younger child of her previous relationship by the back of head and twisted and pulled her hair. The mother alleges that the father frequently verbally abused the children, often threatening that he would send them to Africa or that the mother would have to choose between him and them.
The mother’s evidence is that in 2014 the father organised passports for the children in order to take the older child to Africa for the purpose of undergoing female genital mutilation.
According to the mother’s affidavit the father controlled where the children went to child care, including that this care be provided by a friend who administered harsh physical punishment to the children such as whipping with a belt.
The mother deposes that she noticed the children exhibiting behaviours consistent with being fearful of the father, including pulling out their hair, hiding in cupboards and under beds, not wanting to sleep alone and always sleeping with the lights on.
In her affidavit the mother alleges a particularly serious incident of physical and sexual abuse perpetrated by the father against her in 2014. During this incident she deposes that the father brutally forced her to perform oral sex on him, that she struggled to breathe, was gagging and eventually vomited. At this time the father also pulled out chunks of her hair, ripped her clothes, forcefully had penetrative sex with her and used his fingernails to cut her vagina. The father also slammed her head against the wall and repeatedly choked her. The mother annexes a letter from her ear, nose and throat specialist to her affidavit which outlines some of the consequences she experienced as a result of the father’s brutal assaults, including that she has difficulty breathing and swallowing, is unable to eat hard foods including apples and meat, and that she experienced a change in voice.
In the same year the mother asserts that the father acted in a sexually inappropriate way towards her older children from her previous relationship. The mother deposes to the father following her older daughter who was then aged 12, into her room after she had a shower and watching this child while she was in her underwear. This child reported to the mother that she was terrified as the father had an erection. This incident is reported in the mother’s statement to police which is annexed to her affidavit.
The mother deposes that around the same time the father also walked in on the younger child of her previous relationship, who was then aged nine, while she was getting dressed and when she was on the toilet.
In the mother’s statement to police which is annexed to her affidavit, the mother told the police that incidents of this nature occurred several times and she was unable to recall each time.
In October 2014 the mother was informed by the children of her previous relationship that the father watched child pornography while the mother was out of the home.
The mother deposes that in 2017 the older child of her previous relationship further disclosed to her that at the time of the 2014 pornography incident the father also touched himself in her presence while watching pornography depicting girls aged approximately nine to 11 years old.
The mother also alleges that in December 2014 the father grabbed the breast of her older daughter from her previous relationship and rubbed his upper body on this child’s shoulder and lifted up her dress while staring at her body, before he eventually let her go.
The mother also held concerns for the older child in these proceedings following an incident in 2014 when she was aged three and introduced to two of the father’s friends. The mother alleges that the older child was forced to sit on one of the father’s friend’s laps and was held inappropriately by the friend.
The mother indicates in her affidavit that these incidents in 2014 had been reported to the Department of Communities and Justice (“the Department”) and the father was being investigated for child sexual abuse but no information was provided as to the outcome of the investigations.
In the same year the mother asserts that the father took the younger child overseas which the mother believed was for the purpose of meeting the father’s family in Europe. However, it is alleged that the father left the younger child in Country B with a friend for several days while he met with gang members. The mother deposes that upon the younger child’s return to Australia he was unable to eat or sleep for days.
Risks arising from the father’s alleged criminal conduct and criminal associations
The mother alleges that the father has significant involvement with ethnic gangs. She deposes that the father has been involved in dishonesty is relation to obtaining visas and that he faced significant difficulties when travelling internationally, including being detained in an airport in C City on suspicion of drug smuggling.
In the mother’s affidavit she also recounts two occasions where the father’s criminal associates broke into her home and on one occasion physically assaulted her.
The mother provides details about one incident in July 2015 where the father was abducted and assaulted as a result of his gang affiliations and annexes to her affidavit a witness statement provided by her to police on the day of this alleged event. In her witness statement she explained that the father attended the family home in the presence of a man who was unknown to her and whom the mother gained the impression the father was fearful of. The man led the father through each room of the house before leading him into a car and driving away. The father later called the mother to inform her that he had been punched and that the men had threatened to kill her and the children and instructed her to meet him at the police station.
In her affidavit the mother asserts that when she arrived at the police station she was informed that a Police Gang Taskforce would be attending her home and she was also informed that the men who abducted the father were members of a criminal gang and were known to police.
The mother asserts that the safety of herself and her children has continued to be put at risk following separation. Annexed to the mother’s affidavit is a letter from the Department which outlines that the mother and the children have been identified by the Department, local police and health professionals as being at serious threat and risk of significant harm. It is asserted that the father has breached his ADVO on multiple occasions and through his associates has been able to locate the mother and the children. The mother deposes that when this has occurred associates of the father have absconded with the children without her knowledge. As a result of the father’s behaviour the mother has been forced to relocate with the children on no less than four occasions at significant financial and psychological cost to her.
It is not necessary in my view to make positive findings about each of the allegations made by the mother concerning the father’s family violence towards her, his abuse of the children and involvement in criminal activity.
It suffices to say that the mother makes allegations in relation to these matters of the most serious kind and has been broadly consistent since at least June 2019 when she first met with the family consultant for the purposes of the Child Responsive Program. When interviewed by the family consultant the father only specifically denied one of the mother’s allegations, that he intended to take his daughter to another country for the purposes of female genital mutilation. Although the father told the Family Consultant at that time that the mother’s allegations of family violence were an attempt to alienate the children from him in order to gain an advantage in the proceedings and made his own claims of family violence said to have been perpetrated by the mother, at no time has he denied such conduct in an affidavit or adduced any evidence in relation to these matters.
In other words, the only evidence in the proceedings is the uncontradicted accounts of numerous occasions of serious family violence towards the mother to which the children have been exposed and towards the children and the mother’s older children.
There is also some corroboration for the mother’s account albeit that most of this corroboration is limited to having made complaints of a similar nature to police. The mother also adduces evidence of records of reports about the father’s conduct at various times made to the Department’s child protection helpline. In particular, reports were made to the Department regarding the father planning to take the older child to Africa for the purpose of female genital mutilation and of the father shaking and threatening to throw the older child out of the window when she was a baby.
As indicated, the documents annexed to the mother’s affidavit provide some evidentiary support for her claims, particularly the letter from the medical specialist which outlines the injuries suffered by the mother which the specialist opines is consistent with the mother’s complaints of the father’s assaults.
In summary, the mother has quite consistently made extremely serious allegations of violence she has suffered at the hands of the father, of which he has been aware for almost two years. The father has provided no response and has not denied his conduct in any formal way and there is some corroboration for the mother’s account. While I cannot make any specific findings on the requisite standard, I am satisfied that the mother has been assaulted by the father on many occasions and that there is a real risk that the children may be subjected to the father’s abuse and exposed to his violence towards the mother should they have any unsupervised contact with him.
THE LAW & DISCUSSION
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994.
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The phrase has not been interpreted as creating a presumption that children receive a benefit from having a meaningful or significant relationship with both parents.
As the Full Court in McCall & Clark (supra) explained at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The family consultant assessed the children as having an established relationship with the mother and a very tenuous one with the father, opining that the older child holds very negative views of the father and that the younger child appeared to have no memory of him.
In circumstances where the children have not spent any time with the father for over five years I am satisfied that the children do not currently have a meaningful relationship with the father and consider that for all of the reasons given in this judgment there is no positive benefit to the children in attempting to craft orders to foster their relationship with him.
There can be no doubt that the need to protect the children from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence, is of great significance in these proceedings having regard to the very serious allegations made by the mother about the father’s conduct.
While neither the mother nor the ICL pressed for a finding that the father posed an unacceptable risk of harm to the children arising from their likely exposure to family violence perpetrated by the father I am of the view for the reasons given that a risk of this nature is present.
Further, weight must be attached to the identification of the mother and the children as being at serious threat and at risk of significant harm by the Department and local police. The mother and the children have been included in the Start Safely Program by the Department due to the “severe and relentless domestic and sexual violence; their ongoing experiences of severe trauma and ongoing safety issues, as a result of their perpetrator’s connections with organised crime”.
Additional considerations: s 60CC(3)
The two primary considerations are effectively determinative in this case and for this reason the additional considerations set out in s 60CC(3) need be given only limited consideration. In these circumstances it suffices to observe the following.
While the views of the children as identified by the family consultant are strongly expressed, given their ages when they last had contact with the father, (four and two years respectively), and the severity of the allegations against him, it would be inappropriate to give significant weight to those views. It can also be observed however that the views of the children are consistent with them having been exposed to the abusive conduct in which I am satisfied the father engaged.
The mother has been the children’s primary care giver throughout their lives and the children have had no contact with the father since mid-2015. It can be assumed that the children’s relationship with their mother is their most significant attachment relationship.
The mother has been solely financially responsible for the children and there is no evidence that the father has provided any financial assistance for the care of the children at least since separation.
The mother has demonstrated parental capacity in being appropriately protective of the children since leaving the marriage in 2015. The mother has relocated with the children on numerous occasions to maintain the safety of herself and the children. She has done this with the assistance of services such as the Department of Communities and Justice and the Department of Housing but she has also suffered significant personal financial cost.
The mother has attended various parenting courses to improve her parenting capacity and she has shown that she is attuned to the children’s emotional needs by ensuring the children receive adequate therapy.
The younger child has been diagnosed with complex Autism Spectrum Disorder, Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder and anxiety. The mother has been diligent in ensuring the younger child receives appropriate therapy to manage his health concerns including attending an Autism Spectrum Disorder specialised child psychologist, attending play therapy, receiving vision therapy and partaking in equine therapy. The younger child is also receiving speech therapy to assist with his autism diagnosis and physiotherapy to improve his fine motor and gross motor skills.
Since the mother left the relationship in 2015 she has been solely responsible for long-term decision making regarding the children. It can be taken from the father’s lack of proper engagement in these proceedings that the father has forfeited his right and interest in participating in long term decision making for the children and any involvement in their lives.
The children have not spent any time with the father since mid-2015. Since that time the mother and the children have been required to relocate on around four occasions and the children have changed schools on five occasions. These orders will not result in a change of circumstances for the children which is particularly beneficial given that they now have some stability in their lives.
It is clear to me that any contact between the children and the father would have a negative impact on the children’s relationship with the mother and her parenting capacity. In the Child Responsive Program Memorandum the family consultant opined that due to the mother’s extreme fear and mistrust of the father it would be difficult to imagine that she would be able to facilitate a relationship between the children and the father. This position is consistent with the information deposed to by the mother and corroborated by numerous letters from various domestic, family violence counsellors and support workers which outline the fear and trauma suffered by the mother due to the father’s abuse.
CONCLUSION
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child”.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this case there are reasonable grounds to believe that the father has engaged in family violence and for this reason the presumption does not apply.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
As the father has disengaged from the proceedings, and in circumstances where there no prospect of a co-parenting relationship, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Having regard to all of the foregoing matters and attaching particular weight to the need to protect the children from harm arising from being subjected to abuse and exposed to family violence and the father’s effective disengagement in the children’s lives I am also satisfied that it is in the children’s best interests for most of the orders to be made as sought by the mother and supported by the ICL.
In my view I do not consider that some of the orders sought by the mother are proper on the basis that there is insufficient evidence to support the making of such orders. In particular, I am not satisfied that it is necessary for the protection of the children for an order to be made restraining the father from going within 500 metres of any home or place where the mother or children may be “generally living or staying”, of any place of employment where the mother may be working, and any place whether the mother or the children may be present. These are particularly broad orders and given that there is a power of arrest available if they are breached I am not satisfied that they are proper in the circumstances. The mother has also not adduced any particular evidence in relation to the need for an order giving her the sole power to change the children’s surnames. Although in my view the father through his lack of involvement in the lives of his children for many years has effectively abandoned his right to participate in decision making about them, the decision to change a child’s name effectively involves changing an aspect of their identity and no evidence was adduced or submission advanced as to how such an order is proper having regard to the best interests of the children. For the foregoing reasons I decline to make these two orders as sought by the mother. I have also amended some of the wording involved in other orders for ease of understanding and/or clarity, but those orders remain substantially the same.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 10 May 2021
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