LANDIN & EADES
[2013] FCCA 1276
•3 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDIN & EADES | [2013] FCCA 1276 |
| Catchwords: FAMILY LAW – Practice and procedure – failure of Independent Children’s Lawyer to personally appear. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 67ZBB, 68L, 68LA, 68Q, 68R, 68S, 69ZW, 117 |
| B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451 Harrison & Woollard (1995) FLC 92-598 Johnson & Page [2007] FamCA 1235 |
| Applicant: | MR LANDIN |
| Respondent: | MS EADES |
| File Number: | NCC 653 of 2012 |
| Judgment of: | Judge Harman |
| Hearing date: | 3 May 2013 |
| Date of Last Submission: | 3 May 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 3 May 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Derham Houston Lawyers |
| Solicitors for the Respondent: | Cox West Lawyers |
ORDERS
That the order pursuant to s.68L for the appointment of an Independent Children’s Lawyer be discharged.
The child, [X] born [in] 2002, shall live with his mother, Ms Eades.
Ms Eades shall have sole parental responsibility for [X].
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
THE COURT NOTES THAT:
A Notice of Discontinuance was filed by the Applicant on 1 May 2013.
IT IS NOTED that publication of this judgment under the pseudonym Landin & Eades is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
NCC 653 of 2012
| MR LANDIN |
Applicant
And
| MS EADES |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to care arrangements for a young person, [X] born [in] 2002. [X] has recently turned 10 years of age.
Parties
The parties to the proceedings were [X]’s parents. I have used that term notwithstanding that the Applicant in the proceedings, [X]’s father, Mr Landin, has filed a Notice of Discontinuance and does not appear before the Court today.
The matter was listed at 9.30am. Mr Landin has been called three times outside the Court precinct when the matter has proceeded at 10.30am and there has been no appearance by him. That is consistent with the Notice of Discontinuance filed in these proceedings marked Exhibit ‘C’ and which had been filed with the Court on 1 May 2013.
The Notice of Discontinuance sought to discontinue all portions of the Application initiating proceedings which have been filed a little over a year ago on 14 March 2012 and, thus, there is no Application by
Mr Landin before the Court.
The Respondent to the proceedings is [X]’s mother, Ms Eades. She appears before the Court today and is legally represented. She has filed a Response in these proceedings and seeks orders in accordance therewith.
Undefended Hearing
I am satisfied that the matter can and should proceed today on an undefended basis. That is as:
a)The Response filed by Ms Eades on 23 October 2012 was served upon the attorneys then representing the Applicant. Thus I am satisfied as to service and find that Mr Landin is, in all probability, aware of the proceedings;
b)
Since the Response was filed the proceedings have been before the Court on a number of occasions and including an occasion on 5 March 2013 where an attorney appeared on behalf of
Mr Landin and a number of orders were made that included an order for the appointment of an Independent Children’s Lawyer. The Independent Children’s Lawyer does not appear today and purports to appear through the attorneys for the Respondent and by a request that they mention the matter on their behalf and by consent and, through a request of that attorney, the Independent Children’s Lawyer seeks to tender to the Court correspondence from the Independent Children’s Lawyer which has been marked as an Exhibit and I will return to that shortly.
c)The Notice of Discontinuance filed by Mr Landin or those instructed by him refers specifically to the Court listing today. That is of some significance as the matter, when it had been adjourned from the last Court event, namely 5 March 2013, had been adjourned to a day other than today. However that listing was varied as a consequence of difficulties with the judicial calendar and today’s return date allocated. The return date allocated is some days after the original listing date. It is clear and apparent from the Notice of Discontinuance that this fact was known to Mr Landin and his attorneys who had, until the filing of the Notice of Discontinuance, been retained by him and on record.
Thus I am satisfied that it is appropriate for the matter to proceed to finality today on a final and undefended basis. There would appear to be little to be gained, at least as regards the child’s best interests, through any adjournment of the proceedings.
Orders sought
As regards the relief sought by Ms Eades, that is largely particularised in her Response.
The Respondent seeks an order that [X] live with her and seeks a number of orders regarding time between [X] and his father on both a final and interim basis and for that to occur on a supervised basis.
Clearly, no such relief is pressed by the respondent and nor would it be appropriate for it to either be pressed or entertained in circumstances whereby [X]’s father does not wish to participate in the proceedings or seek any relief. In the event that the application was pressed and the Court was urged to make such orders I would be satisfied, by reference to the material in the proceedings, to decline such relief.
No order is sought in the Response with respect to parental responsibility. However that does not obviate the Court’s obligation to consider what order, if any, should be made with respect to parental responsibility. I am satisfied that this can and should occur today.
Evidence
I have read and considered each of the following documents:
a)The Response filed by Ms Eades on 23 October 2012;
b)An Affidavit of Ms Eades filed on 23 October 2012;
c)A Notice of Abuse filed on 25 March 2013;
d)An Affidavit of Ms Eades filed on 21 March 2013;
e)A number of exhibits comprising:
i)Exhibit ‘A’ - a Child Dispute Conference memorandum produced following a conference on 3 April 2013. It is to be noted that the father did not attend that conference;
ii)Exhibit ‘A1’ – An Apprehended Domestic Violence Order made by the Local Court at Penrith on 16 April 2013 and being a final order for a period of two years from the date of its making and noting as protected persons both the mother and [X];
iii)Exhibit ‘B’ - the email from the Independent Children’s Lawyer; and
iv)Exhibit ‘C’ - the Notice of Discontinuance.
As the proceedings are undefended I am satisfied that I can and should accept the evidence of Ms Eades as unchallenged and, thus, I make findings of fact in accordance with Ms Eades’ material and accept as proven each of the allegations raised by her in her evidence.
Family Violence
The terms of the Apprehended Domestic Violence Order (Exhibit ‘A1’) preclude any contact between Mr Landin and Ms Eades and [X] (who is also a protected person) in any form save through a legal representative for the father. That fact provides to me further satisfaction that it would be inappropriate for me to make or contemplate making any further order with respect to time between [X] and his father. That is particularly so noting the difficulties that would flow therefrom having regard to the relevant provisions of the Family Law Act, particularly ss.68R and 68S, and noting further that from the evidence available to me, as described below and above, I could not, in short, be satisfied that such orders were appropriate.
The evidence of Ms Eades makes clear that the parties have had a difficult and fractured relationship. The relationship has been typified by violence perpetrated by Mr Landin upon Ms Eades, [X] and children of Mr Landin from a previous relationship.
The parties had separated briefly during 2005 that separation being instigated by Ms Eades as a consequence of and in reaction to and her consequent desire to flee domestic violence. Police involvement occurred at that time although no criminal charges were preferred.
The parties reconciled some time in the latter part of 2005 but further incidents occurred and continued. These included substantial and significant incidents of domestic violence, both by reference to the s.4 definition of family violence relevant to these proceedings, (the proceedings had been commenced prior to the 7 June 2012 amendments) and, by reference to the s.4AB definition applying thereafter. I am satisfied that whilst s.4AB is not the definition of family violence relevant to the determination of these proceedings that I am still entitled to consider same as a relevant factor (see s.60CC(3)(m)).
The evidence of Ms Eades makes clear that family violence occurred, including incidences of being grabbed about the throat, being threatened, being struck to the face with both an open hand and a fist, things being thrown at Ms Eades, Ms Eades being kicked, punched and slapped, Ms Eades being pushed into a wall with such force that her head broke through the Gyprock and occasioned injuries to her and damage to the wall.
Ms Eades suggests that verbal and physical abuse was ongoing throughout the relationship and occurred in the presence of not only [X] but other children including Mr Landin’s two children from a previous relationship.
Violence has extended to and included [X] and those children, through their being smacked to the head and other parts of their body as well as being verbally abused and threatened.
There has been reportage to the Department of Family and Community Services. No subpoena has been issued at this point for the production of that material. Orders have been made by the Court pursuant to s.69ZW and it would appear material has been produced and released. It is not tendered. However, in the context of this hearing, I am satisfied that this would not be necessary, particularly as I am entitled to accept, and I do accept, Ms Eades’s evidence as truthful.
Ms Eades gives evidence that, as a consequence of engagement with the Department, she was advised by the Department that she was considered to “not be acting protectively” by remaining in a relationship with Mr Landin and that if she did not separate from
Mr Landin, that [X] would, in all probability, be removed from her care. A few months after that advice was given Ms Eades left the relationship.
Ms Eades’ evidence is that, since the separation of these parties which occurred on 2 December 2011, no time has been spent between [X] and Mr Landin. Ms Eades’s evidence is the only evidence I have available to me as the person seized with responsibility for representation of this child’s interests is, apparently, too disinterested in the proceedings to appear. It is noted that a meeting has occurred between [X] and Independent Children’s Lawyer and it is alleged that [X] has expressed to the Independent Children’s Lawyer a strong desire to not communicate with, or have any contact with, Mr Landin.
In any event, the Apprehended Domestic Violence Order made by the learned State Magistrate would preclude that contact, absent any order by this Court. Indeed, any order made by this Court would be inherently inconsistent with the orders made by the State Magistrate which orders do not include any exception (such as to permit contact if authorised by an order of this Court) and, thus, I would need to give considered reasons as to my satisfaction that such inconsistency was appropriate. I am not so satisfied. That particularly arises having regard to the preponderance of evidence put before the Court regarding family violence, refreshingly, in an entirely admissible form.
Family violence has been perpetrated by Mr Landin continuously and throughout the relationship as well as repeatedly since separation.
It is to be noted that at the commencement of these proceedings orders Commonwealth Information Orders were made by Judge Terry. That is not to suggest that those orders were other than entirely appropriate. It does, however, corroborate Ms Eades’s allegation that Mr Landin was estranged from her and [X] and thus unable to effect service.
Ms Eades’s evidence would suggest, that prior to service being effected through the release of information produced to the Court pursuant to the Commonwealth Information Order, that she was receiving and continued to receive communication from Mr Landin by telephone. Thus it would appear that the evidence of Mr Landin, given in support of the application for substituted service, was less than frank. Mr Landin clearly had means of contacting and communicating with the Respondent which were not disclosed by him. That means of communication also have extended to knowledge of how to contact members of the broader maternal family.
The evidence of Ms Eades would suggest that the preferred method of address by Mr Landin to Ms Eades is one or other of “slut” or “cunt”. Mr Landin seems incapable of expressing himself in more moderate or appropriate terms.
It is suggested that post separation and shortly after the filing of his Application, that Mr Landin contacted Ms Eades and threatened her that she would be bashed by he or others. It is suggested by Ms Eades that threats have also been made by Mr Landin to also perpetrate physical violence upon [X].
It is suggested, as is regrettably a common practice nowadays, that abuse has been not only verbal but has extended to the posting of comments by Mr Landin upon both his and Ms Eades’ Facebook page. Mr Landin has made postings to the following effect:
You’re a cheating, lying whorebag; just another arsehole -
and such delightful comments.
There is perhaps some explicability of those behaviours in that the evidence of Ms Eades, which I accept, suggests that Mr Landin has a longstanding difficulty with both drug and alcohol abuse, drinking up to a litre of spirits per day. It is suggested that alcohol compliments
Mr Landin’s predisposition to use significant amounts of marijuana, amphetamines and the drug commonly referred to as “ice”.
Clear and appropriate concessions are made by Ms Eades that she has, in the past, used and experimented with drugs of like nature. I accept her evidence that such experimentation is very much historical for her.
Concerningly, Ms Eades’ evidence, which, again, I accept, extends to and includes communications between Mr Landin and Ms Eades instigated by Mr Landin without invitation as well as by Mr Landin’s mother, the grandmother of [X], wherein each refer to Ms Eades as a “fucking slut”, “skanky whore” and “fucking cunt”.
It would appear that to the extent that Mr Landin has some deficiency in his use of appropriate language that he may well have inherited that from his mother and his upbringing with her.
As a consequence of that ongoing behaviour, apprehended domestic violence proceedings were again commenced by the police during the currency of these proceedings and in the early part of 2013. Mr Landin did not attend Court on the first return date of those proceedings, although the matter could not proceed on that date as, whilst Mr Landin had been served, the Affidavit of Service was not available to the Court. Ms Eades gives evidence that she was contacted several times on the day of Court and, whilst at Court, by both Mr Landin and his mother, both of whom addressed Ms Eades as “cunt” and “slut” and suggested that she would be bashed by they or others at their behest.
Ultimately, the matter did proceed before the Local Court and orders were made as above.
On 1 March 2013 Mr Landin sent a text message to Ms Eades to the effect:
Fucking slag. So happy not to be anywhere near you skank. What a fuckwit to think you were the one for me.
It then continues with a recitation of his delight in finding a new partner who, presumably, is either not subjected to such behaviours or is tolerant of them and, somewhat ironically in light of the content of the message, seeking the cooperation of Ms Eades to have [X] available on a nominated date for his wedding to said person. It concludes:
I don’t need your negative shit so fuck off and leave my new real family alone you tunnel cunt.
That would appear to be reflective of the lack of interest now demonstrated by Mr Landin in these proceedings and his discontinuance of his Application. Sadly, a lack of interest demonstrated by Mr Landin in the proceedings today would appear to be joined in with by the Independent Children’s Lawyer.
Role of the Independent Children’s Lawyer
An order for the appointment of an Independent Children’s Lawyer carries with it and imports the obligations created by s.68LA, together with the obligations created by the solicitors’ practice rules and bar rules.
The duties owed to the Court by an Independent Children’s Lawyer are more onerous, if they might be so described, than those owed by counsel for a party. That arises, appropriately so, as they are representing the interests of a child, an inherently powerless person whose welfare is the subject of the proceedings and the paramount consideration but which child is not a party to the proceedings.
Section 68LA(5) sets out the specific duties of the Independent Children’s Lawyer.
These duties include an obligation to ensure that any views of a child in relation to matters to which the proceedings relate are fully put before the Court. There is no evidence that any attempt has been made to discharge that duty and certainly no evidence before the Court regarding [X]’s views, other than the evidence of Ms Eades.
It may well be, the Independent Children’s Lawyer not being here to address the issue, that the Independent Children’s Lawyer has been satisfied that Ms Eades’ evidence appropriately and fully places that evidence before the Court.
However, it is also important to note that this evidence, to the extent that Ms Eades has placed it before the Court, is, of itself, concerning and troubling.
It is suggested that after a number of telephone communications which Ms Eades attempted to arrange and did, for some short time, successfully arrange between [X] and his father, that [X] had become distressed and particularly on Boxing Day 2012 after one such telephone communication. On that occasion [X] is suggested to have had his father continuously and in a loud, raised and angry voice refer to his mother as a “fucking slut”. It is then suggested:
This was extremely distressing for [X] who pleaded with his father to not speak bad about me. It got to the stage where Mr Landin was yelling at both me and [X] referring to me as a slut. I had no choice but to end the call as [X] was extremely anxious and did not wish to engage with his father at all.
It is then suggested that Mr Landin continued to call repeatedly after the phone had been hung up and that the phone had to be switched off as [X] was so distressed, crying and pleading that he not be forced or required to speak to his father again. It is suggested [X] was extremely scared and indicated that he did not wish to spend any time with or speak to his father and that he said to his mother:
I’m not going anywhere near dad because he’s going to flog me. Don’t make me speak to him. I don’t want to speak to him or see him ever again.
That is the strength of the view suggested to be expressed by a 10 year old child whose interests are represented in these proceedings and yet the person seized with responsibility for his best interests and representation thereof, and including by reference to the specific duty to ensure that his views are appropriately placed before and advocated before the Court, is not present.
There is a duty owed by legal practitioners to the Court, as discussed by the High Court and House of Lords, to ensure that their conduct and dealings with the Court are appropriate, frank, candid and expeditious.
Exhibit ‘B’, the correspondence tendered at the request of the Independent Children’s Lawyer but by Counsel for Ms Eades, provides as follows, it being dated 2 May 2013, the day preceding this listing:
We refer to the above matter and note you have agreed to appear on our behalf and mention the matter by consent tomorrow in the Parramatta Registry of the Family Court of Australia.
Clearly the Independent Children’s Lawyer is not cognizant of the distinction between this Court and the Family Court.
We note the matter is listed at 9.30 am for hearing directions before Harman J.
The matter is, in fact, listed for undefended hearing as would be apparent from the orders engrossed and issued on the last occasion and as acknowledge as the purpose of today’s listing by the Notice of Discontinuance by the Applicant. It continues:
We are the independent children’s solicitor and act for the child, [X]. We note that the Independent Children’s Lawyer is unavailable as he is required in another jurisdiction in another matter in which he is also the independent children’s solicitor and convey our apologies to the court for his absence but additionally note he was present to appear in this matter on 29 April 2013 in which we were not notified that this date had been vacated.
Correspondence from my chambers is upon the file addressed to the Independent Children’s Lawyer clearly advising him of the change of date. To the extent that it is suggested that it is somehow the Court’s discourtesy or difficulty (in having changed the date), same would appear to reflect the attitude demonstrated towards this Court by both its misnaming and the absence of appearance today. It continues:
The independent children’s lawyer supports the mother in her application and that the child is to reside with the mother.
Presumably, it is intended to suggest live with.
The Independent Children’s Lawyer additionally consents to the “discharge of the matter”, presumably the conclusion of the proceedings today by way of undefended hearing which is a hearing based upon the merits and consideration of the evidence before the Court. It is a hearing which the Independent Children’s Lawyer has a duty, obligation and responsibility, both to the Legal Aid Commission who provides funding as well as to this Court, in fact, to appear and participate in either in person or through Counsel or agent.
It is entirely unacceptable that a request is made of a party or their Counsel to mention the matter on behalf of the Independent Children’s Lawyer and in:
a)The absence of the other party,
b)The absence of knowledge of, let alone consent given by, the other party, even if they have filed a Notice of Discontinuance; or
c)Any other transparency regarding that arrangement.
To request that a party or their counsel mention the matter for the Independent Children’s Lawyer at hearing is entirely inappropriate.
The specific obligations contained with s.68LA(5) commence with:
The independent children’s lawyer must act impartially in dealings with parties to the proceedings...
How it can be suggested that there is impartiality perceived by either parent in these proceedings (although thankfully for the Independent Children’s Lawyer, Mr Landin is not here to raise any further protest) is difficult to apprehend.
For it to be suggested by the Independent Children’s Lawyer that Counsel for the mother mention the matter for them and communicate to the Court the Independent Children’s Lawyer’s consent to the orders that the mother seeks, and in circumstances whereby he absents himself due to an appearance in another jurisdiction for some other purpose, is the most profound disrespect not only to this Court, which is the least of my concerns, but to the office of the Independent Children’s Lawyer. It is an office which should be held in honour by all litigants and the Court and should be held, importantly, in high regard by those who are called upon to fill the role.
The profound misunderstanding of the importance of the role and the obligations created thereby (obligations created by common law, professional conduct rules and legislation) demonstrated by these actions, which I hasten to add are not the first occasion of such actions by the individual concerned, would suggest to me that there is such misunderstanding, misapprehension or disregard for the role that they should not accept appointment nor be offered appointment in the future.
It is a matter for the Legal Aid Commission of New South Wales to give consideration as to the continued presence upon the roll for allocation of work as Independent Children’s Lawyer’s appointed by this Court but my views are made clear herein.
The administration of justice is the responsibility of all legal practitioners. The importance of the administration of justice and public confidence therein is something which is fundamental to the execution of the rule of law within our society and its governance. Actions such as this speak so poorly of an understanding of that fundamental duty that I would have some concern that it might well represent professional misconduct. However, that is not a matter that need trouble me at this point.
Persons appointed to represent the interests of children before this Court must take their responsibilities to the Court and to the child whose interests they represent seriously. It is entirely unacceptable, inexcusable and inexplicable that a legal practitioner in such an office, representing a person who labours under a legal disability, that is a child, and whose interests are so profoundly impacted by family violence, would delegate any communication to the Court of the Independent Children’s Lawyer’s position to Counsel for a party and/or seek to communicate with the Court by correspondence, albeit tendered through counsel for a party.
I am also concerned that there is such an abrogation of responsibility with respect to the role that the Legal Aid Commission should not be put to any cost in funding this appointment. This is the first occasion on which the matter has come before this Court since the appointment was made. In those circumstances one would think, even though it is fairly conceded by the mother that the child has at least met with the lawyer representing the child’s interests, that there would be no account issued to the Commission. I am not satisfied I have jurisdiction to restrain or injunct such action as it would not fall within the ambit of responsibilities or appropriate exercise of jurisdiction by this Court under either s.117 or Part VII or else I would.
In light of the comments that are made in this judgement, which will be forwarded to the Independent Children’s Lawyer (we will do him greater respect than he does the Court) one would think that he would be foolhardy to attempt to do so.
I am also concerned that the Independent Children’s Lawyer has met briefly with this child and required that the child travel to his office. This young person lives at [suburb omitted]. The Independent Children’s Lawyer’s office is at Manly. The Independent Children’s Lawyer has required that Ms Eades and the child traverse that distance when the proceedings are at Parramatta.
The Independent Children’s Lawyer practices routinely at Parramatta and could have made far more appropriate and sensible arrangements to meet with this child. That is particularly so as this is a child who has already been the subject of exposure to significant family violence and he should have been treated with the decency he serves as a human being let alone, as a child the subject of representation by a legal practitioner of whom one would assume some level of sympathy, empathy and competence, with greater respect and dignity.
Legislative pathway
I turn now to the evidence and the legislative pathway that applies to the determination of these proceedings.
I am required to commence by consideration of the objects and principles set out in s.60B. The objects and principles in the pre 7 June 2012 drafting do not incorporate the entirety of the International Convention on the Rights of the Child as they now do. However, they are all relevant and are impliedly as regards the interpretation and application of the substantive provisions (see B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451).
The objects and principles commence with a requirement that the Court ensure that the best interests of the child are met by ensuring that they have the benefit of both parents having a meaningful involvement in their life to the maximum extent consistent with their best interests that they are protected from physical or psychological harm, that children receive adequate parenting and that parents fulfil their duties.
Whilst they are not substantive provisions to be applied to the facts of the case I note that the objects and principles would obviate against any relief other than that which is sought by the mother. That is particularly so by reference to what is now s.67ZBB and which replicates prior provisions of the legislation.
The Court has an obligation to take prompt action in relation to allegations of child abuse or family violence. That includes a specific direction to consider what orders should be made to enable appropriate evidence to be obtained and, more importantly, to protect a child or any other party to the proceedings.
A learned State Magistrate has heard and determined an application by the police on behalf of both Ms Eades and [X] seeking restraints. The State Magistrate has determined that it is appropriate that an order be made that there be no contact or communication by any means whatsoever.
I do not intend to suggest or imply that I am bound by the findings of the learned State Magistrate. That is not to suggest that I cavil with them either or consider them in any way inappropriate. However I am not bound by them.
I have, thanks to the competence and diligence of the attorneys for
Ms Eades and no other legal practitioner involved in these proceedings including the Independent Children’s Lawyer, full, detailed, probative and admissible evidence as to significant family violence. On the basis of that evidence I could not be satisfied that I could arrive at any other finding than that which the learned State Magistrate clearly did, that is, the protection of Ms Eades and [X] require that there be no order made with respect to [X]’s communication or time with his father.
Further in that regard I note that any order for time or communication would be inconsistent with the order that was made by the learned State Magistrate and I would need to be satisfied, by reference to ss.68Q, 68R and 68S, that such inconsistency was appropriate and in [X]’s best interests and then provide reasons with respect to that determination.
I am not satisfied that this could occur or should occur.
With respect to the issues of violence I also note that the allegations would warrant and require the prioritisation of the primary considerations to which I now turn even though s.60CC(2A) does not apply to these proceedings. Section 60CC(2A) is a codification of that which the Court has adopted as standard practice, and appropriately so, prior to its enactment. That is, the need for protection of a child from physical and psychological harm must outweigh the benefit, if any, to a child of having a meaningful relationship if a meaningful relationship could, in fact, be found or predicted between the child and the abusive parent.
There is some real doubt and concern as to how one could possibly, in the context of this case and the evidence led by Ms Eades, including evidence as to the representations of [X] himself as regards his attitude towards his relationship with the father (see s.69ZV), to arrive at any other conclusion.
This child has been traumatised by his father’s behaviour during his life both prior to the parents’ separation and post separation. It is a credit to Ms Eades that she has endeavoured and attempted, notwithstanding the atrocious behaviour perpetrated by and demonstrated towards her by Mr Landin, to continue and maintain a relationship between [X] and his father. She is to be commended for having tried. She is also to be commended - to adopt the terminology of the Departmental officers who have spoken with her previously - for having acted protectively in terminating those arrangements when clearly Mr Landin was unable to restrain himself and act appropriately.
The distress that has been occasioned to this child cannot and should not be continued in the future and certainly not through any Order made by this Court.
In turning to the balance of s.60CC I am also concerned, by reference to authorities such as Mazorski & Albright [2007] FamCA 520 and Green & Graham [2011] FamCAFC 248, that no meaningful relationships could be ascertained or apprehended between [X] and his father at this time. It is difficult to understand how one could be alleged, let alone found, in circumstances whereby [X]’s relationship with his father throughout his life has been typified by his exposure to violence both directed towards him and others.
I am concerned that any benefit that might be derived by [X] - and [X] is clear in the expression of his own view that he does not desire it and does not perceive it as safe - would be very much overshadowed by the need to protect both he and his mother.
Ms Eades cannot and should not be exposed or expected to deal with the behaviour of Mr Landin. It is abusive and offensive in the extreme.
In those circumstances I am satisfied by reference to the primary considerations that:
a)There is no present meaningful relationship between [X] and his father;
b)In all probability there is no relationship of any positivity presently apprehended or existing between [X] and his father;
c)There is no benefit to [X] of a meaningful relationship nor any possibility of one developing; and
d)That, to the extent that a relationship may be possible, that its potential benefit, unknown as it is and uncertain as it might be predicted, is very much outweighed and obviated by the need to protect him, as the learned State Magistrate would appear to have also apprehended through the orders advisedly made by them.
In turning to the additional considerations:
Views of the child
[X] has expressed, through Ms Eades’ evidence and no other means, clear views that he does not wish to have a relationship with his father at this point in his life. He does not perceive it as safe. He has good and valid reason based upon lived experience to have formed and hold and express that view.
By reference to authorities such as Harrison & Woollard (1995) FLC 92-598 and R & R (Children’s Wishes) [2002] FamCA 383, I am satisfied that I should give substantial and significant weight to those views and in combination with the primary consideration of the need to protect [X] from physical or psychological harm, I am satisfied those views would approach, if not become, determinative and dispositive of the issue.
In any event the need to protect [X] from physical and psychological harm would compel no order other than those sought by the mother.
Parental responsibility
In dealing with the additional considerations, I note that I must also deal with and address the presumption of equal shared parental responsibility contained in s.61DA. I must thus determine whether s.65DAA mandates a consideration of equal or substantial and significant time.
By reference to the evidence that I have already considered, that the presumption cannot apply.
I am satisfied upon accepting Ms Eades’ unchallenged evidence that there has been significant family violence. Therefore, clearly, the presumption does not apply.
The non-application of the presumption does not preclude the Court making any order which it considers appropriate with respect to parental responsibility. However, having regard to the need to protect [X] from physical and psychological harm, including the psychological or emotional harm that might follow through the exposure of Ms Eades to Mr Landin’s behaviours and family violence, and thus the impact it may have upon her, her functioning, her care of, or relationship with, [X] (see Green & Graham) I am satisfied that the only order that can and should be made is an order for sole parental responsibility.
To do otherwise would, in my mind, be nonsense. To allow s.61C to operate so that the parties each had parental responsibility at such times as [X] was in their care would be a de facto order for sole parental responsibility as the Apprehended Domestic Violence Order which presently operates precludes Mr Landin having [X] in his care or communicating with him. Further, I am satisfied that to make such an order would be to derogate from the Court’s duty and obligation to positively consider what order is in [X]’s best interests (see s.60CA).
I am satisfied that if I treat [X]’s interests as the paramount consideration, as I must, there is no other order that can be order but an order for sole parental responsibility.
An order for equal shared parental responsibility would require each of these parents, operation of s.65DAC, to consult with the other in an exercise of joint parental responsibility and to endeavour to make decisions jointly and consensually. There is no realistic prospect that could occur and, as I have already indicated, it would be entirely inappropriate for me to expect let alone, through Court order, compel Ms Eades to deal with the atrocious, vicious and vile behaviour demonstrated towards her, not only by Mr Landin but by members of his family. To expect Ms Eades to pick up a telephone and attempt to speak to Mr Landin about matters such as schooling or religious upbringing when she is referred to as “skank”, “slut” or “cunt” on each occasion is simply not something which this court can or should countenance.
Accordingly, I will shortly make an order for sole parental responsibility.
In dealing with the remaining additional considerations:
The nature of the child’s relationship with each parent and other persons
[X] clearly has an excellent and profoundly deep relationship with his mother, no doubt strengthened through their shared lived experience of Mr Landin.
I am not satisfied that the relationship between [X] and his father, as I have already indicated, could be described existing in any positive or meaningful fashion.
The extent to which each parent has supported, facilitated and encouraged [X]’s relationship with the other parent
This provision, now removed from the legislation, has previously been erroneously referred to as a “friendly parent” provision by which the Court is enjoined to be critical of a parent who does not encourage a relationship. However, it is a matter of appropriateness of relationships. As the Departmental officers most wisely opined to Ms Eades, she would be acting other than protectively if she allowed the relationship to continue.
Accordingly, I commend Ms Eades for the actions that she has taken in separating herself and this child from the environment in which they were living with Mr Landin as well as for attempting to offer an olive branch, as it were, of communication between [X] and his father but then, when Mr Landin made that arrangement completely untenable, terminating that relationship.
Her behaviour, if I judge it appropriately and correctly by reference to what had been s.60CC(3)(c) is entirely appropriate and commendable and speaks to and supports the orders that she seeks.
The likely effect of change
This child is not presently spending time with or communicating with Mr Landin. There is an order made by a State Magistrate which precludes that occurring for the next two years.
I am satisfied that I should not interfere in any fashion by making an order within the exercise of discretion and jurisdiction of this Court. It would simply be contrary to this child’s bests interests, let alone not being the order which would best promote and treat as paramount the child’s best interests.
Practical difficulty and expense
There is a significant practical difficulty in any arrangement for [X] to spend time with his father. He is not here to press or prosecute an application. Thus, I am not satisfied that I am seized of jurisdiction to make any such order. Certainly, it is not an order that I would make of the Court’s own motion.
In any event, even if such an application were pressed, I am not satisfied it would be appropriate. At best time would be supervised and that cannot (see Bieganski (1993) FamLR 353) continue indefinitely and it would be inappropriate to order it.
Further, and importantly, I am not satisfied that even supervised time would be appropriate. It is likely to lead to future proceedings, would likely be terminated at a very early stage as I am not satisfied
Mr Landin has any capacity for emotional self regulation or has demonstrated anything which could correctly be described as emotional intelligence. In any event, such arrangements would continue to expose this child to significant and profound trauma.
To make any order or to consider an order for supervised time in light of the evidence available to me today would ignore the fact that this child’s exposure to violence in the past would revisit trauma and distress and anxiety upon him if he came into contact with or communicated with his father, based upon his own apprehension or fear for his own safety, let alone his apprehension and fear for the safety of his mother.
Capacity of each parent to provide for the child’s needs
I am entirely satisfied that Ms Eades meets this child’s needs and does so well and in the most trying and onerous of circumstances.
She has protected this child by separating from his father.
She has protected him in terminating communication and in approaching the police to obtain appropriate orders enforceable by Courts and police to ensure that both she and [X] are protected.
She is, again, to be commended for the work that she has done and will continue to do in providing for this child.
I am not satisfied that Mr Landin has any capacity to meet, or any insight into the emotional or intellectual needs of this child. Indeed, if he did, he could not have behaved in the manner that is described in the evidence, which I accept, whereby on Boxing Day last he renders his child to such a state of distress and anxiety through the manner in which he speaks not only to his mother but to him. That evidence is telling and compelling in opposition to any order other than those sought by the mother.
Maturity, sex, lifestyle and background of the child
This is a young person of 10 years of age, approaching 11 years of age, who has had a traumatised upbringing which has been typified by his father demonstrating violence to his mother, himself and his siblings.
In those circumstances, and as I have already indicated, I am satisfied that his maturity is such as to wholly support the relief sought by
Ms Eades and particularly as regards the weight to be attached to the views that he has expressed. Those views are compelling and, unfortunately, are not independently represented today.
Aboriginal or Torres Strait Islander
There is no evidence to suggest that either parent or [X] is from an Aboriginal or Torres Strait Islander background.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
Ms Eades has demonstrated, as would be clear from the above comments, an entirely appropriate attitude towards her responsibilities as a parent.
She has, as it were and in the vernacular, cleaned up her act and left any use of drugs or other illicit substances in the past at or prior to the birth of [X].
She has changed her life to accommodate her responsibilities as a parent.
She has also acted entirely appropriately to ensure that [X] now has the best prospect of enjoying what is left of his childhood which has already been damaged by Mr Landin.
She has also taken steps to ensure and minimise that damage in the future, both through this Court and others.
Family violence
That is manifest in these proceedings and compels the orders sought by the mother.
Family violence orders
Clearly, there is a family violence order of some breadth and which includes [X] as a protected person.
I will not make any order which interferes with the Apprehended Domestic Violence Order and I make clear and express that I am not satisfied that it would be appropriate to do so.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am satisfied that the orders that I propose to make are those which will, in all probability, avoid future proceedings.
Mr Landin has demonstrated his lack of commitment to [X] through his failure to prosecute his application to this Court.
I am satisfied that any application Mr Landin may bring in the future, this determination having been made on its merits, would face significant difficulty as regards the Rice & Asplund (1979) FLC 90-725 threshold. That would be so unless there was some significant profound and demonstrated change in the lifestyle, attitude and behaviours of
Mr Landin.
Accordingly, the orders that I make today will, in all probability, conclude all proceedings for all time.
Other facts and circumstances
In those circumstances I must also, through subsection 60CC(3)(m), consider the provisions of s.65DAA(5).
The parents live some significant distance apart, Mr Landin on the Central Coast and Ms Eades in the Greater Western Sydney area.
The parents have no current or future capacity to implement any arrangement other than that which is sought by Ms Eades, being for the child to live with her, and no orders with respect to time or communication.
The parents have no current or future capacity to communicate. That is brought about largely through the reprehensible behaviour of
Mr Landin.
I am satisfied there would be an entirely negative impact upon this child of any order other than an order for sole parental responsibility and order that he live with his mother. That would obviate against any order which compelled or required or even left open the door to communication or time with his father.
I am satisfied that any order that provided for or sought to compel such time would expose the child to an unacceptable risk within the parameters discussed in Johnson & Page [2007] FamCA 1235.
In those circumstances I am satisfied that orders can and should be made as sought by Ms Eades. Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 4 September 2013
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