LARDNER & RAZAK
[2020] FamCA 742
•4 September 2020
FAMILY COURT OF AUSTRALIA
| LARDNER & RAZAK | [2020] FamCA 742 |
| FAMILY LAW – CHILDREN – Undefended interim hearing – Best interests – Where father is currently incarcerated and serious criminal charges against the father are presently listed for trial in September 2020 – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and have no time or communication with the father – Where appropriate to make an order pursuant to s 68B of the Family Law Act 1975 (Cth) for the personal protection of the child. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 69ZN |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Banks & Banks [2015] FamCAFC 36 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 George & George [2013] FamCAFC 182 Goode and Goode [2006] FamCA 1346 Jarrah & Fadel [2014] FamCAFC 14 Marvel v Marvel (No 2) [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Razak & Lardner [2018] FamCA 941 Smith & Smith [2017] FamCAFC 226 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Mr Lardner |
| RESPONDENT: | Ms Razak |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne |
| FILE NUMBER: | PAC | 131 | of | 2018 |
| DATE DELIVERED: | 4 September 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 July 2020 |
REPRESENTATION
| APPLICANT – SELF-REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Ms Baltins of Legal Aid NSW Domestic Violence Unit |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne of Reid Family Lawyers |
Orders Made On 17 July 2020 As Follows:
Upon Noting That There Is No Appearance By Or On Behalf Of The Applicant Father And Upon Further Noting That The Father’s Solicitor Filed A Notice Of Ceasing To Act On 14 July 2020 And Upon Noting That The Father Remains In Custody Awaiting Trial In Relation To Serious Offences Relating To The Mother, It Is Ordered That
The father’s Application in a Case filed 21 February 2019 be struck out and dismissed.
It Is further Ordered, Pending further Order, That
The respondent mother, Ms Razak, (“the mother”) shall have sole parental responsibility for the child X born … 2017 (“X”).
X shall live with the mother.
X shall spend no time and have no communication with the applicant father, Mr Lardner (“the father”).
Pursuant to section 68B Family Law Act the father, Mr Lardner is restrained by injunction from:
(a)Approaching or contact X and / or causing any third party to do so on his behalf.
(b)Assaulting, threatening, stalking, harassing or otherwise intimidating X and / or causing any third party to do so on his behalf.
(c)Attending, entering, or remaining at any place X may live, attend school, pre-school, play group or day-care and / or causing any third party to do so on his behalf.
(d)Attempting to locate X and / or any person with whom X lives and / or causing any third party to do so on his behalf.
AND THIS IS an order for the personal protection of X born … 2017.
Noted that Order 4 is an order which a power of arrest without warrant attaches provided the provisions of section 68C(1)(b) Family Law Act are satisfied.
Orders (1) and (2) made 22 October 2018 continue.
It Is Further Ordered That
Reasons for judgment will be published at a later date.
The Court Notes That
At present the Independent Children’s Lawyer has leave to relist the proceedings by application to the Court in chambers and it is expected the Independent Children’s Lawyer will seek to do so upon completion of the criminal proceedings presently pending against the applicant father.
The criminal proceedings as against the applicant father are presently listed for trial commencing … September 2020 and that the father remains bail refused in respect of those proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lardner & Razak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 131 of 2018
| Mr Lardner |
Applicant
And
| Ms Razak |
Respondent
REASONS FOR JUDGMENT
The matter for determination is an interim parenting application arising from proceedings commenced by the applicant father on 15 January 2018.
In the unusual and concerning circumstances of this case, interim orders were previously made on 22 October 2018 providing that both the respondent mother and the parties’ only child, a daughter now aged three (“the child”), be placed on the Family Law Watchlist.
On that occasion, the Court also noted that any interim application as to parenting by the father is to be made by Application in a Case supported by appropriate affidavit evidence, including a full psychiatric assessment of him by his treating practitioner.
Reasons for Judgment relating to those orders were delivered on 16 November 2018 (Razak & Lardner [2018] FamCA 941) (“the 2018 Judgment”), in which the relevant background to the matter can be found.
In summary, shortly after the child was born in 2017 the father and the paternal grandmother engaged in conduct which saw the forcible removal of the mother and child out of Australia. According to the mother’s evidence, this included a series of physical assaults and violent threats made by the father, verbal abuse from the paternal grandmother and a fraudulent procuring of her signature.
An Apprehended Violence Order (“AVO”) was made against the father for the protection of the mother, and both he and the paternal grandmother faced charges relating to their removal of the mother out of the country against her will.
Since this incident, the parties (and to an extent their respective extended families) have been involved in a highly acrimonious dispute relating to the parenting arrangements for the child.
The father sought by way of final parenting orders that, in summary, provided as follows:
a)The parties have equal shared parental responsibility for the child;
b)The child live with the mother; and
c)The child spend time with and communicate with the father in effectively a shared care arrangement.
The mother, in response, sought final parenting orders that, in summary, provided:
a)The mother have sole parental responsibility for the child;
b)The child live with the mother;
c)The father spend no time and have no communication with the child; and
d)The father be restrained by injunction from approaching or contacting the mother and the child, from assaulting, threatening, harassing, stalking or otherwise intimidating the mother and the child, from attending, entering or remaining in the mother’s place of residence, from attempting to locate the mother and the child and from contacting the child’s school or other educational or vocational institution that the child may attend.
In the months following the making of interim orders in October 2018, criminal proceedings against the father were on foot relating to his various breaches of the AVO made against him. Ultimately, he was sentenced to 18 months imprisonment with a non-parole period of nine months. The AVO against him was also extended and remains effective until July 2021.
Criminal proceedings relating to the unlawful removal of the mother are ongoing against the father but have been discontinued against the paternal grandmother due to her age and ill-health. The father was refused bail in respect of those proceedings and it is understood that the matter is listed for trial commencing September 2020.
On 21 February 2019 the father filed an Application in a Case seeking supervised time with the child, but that application was subsequently dismissed as the father failed to provide an affidavit from a treating psychiatrist in accordance with court orders.
The present matter for determination arises by reason of the interim relief sought by the mother in her Amended Response to Initiating Application filed 27 May 2020. These interim orders are largely in the terms sought by her on a final basis as outlined above, but included a further order that she be permitted to travel with the child to Country D for some weeks.
The mother’s interim application was listed for interim hearing on 17 July 2020 and as the father is currently on remand, he was granted leave to attend the hearing via telephone.
On 17 July 2020, there was no appearance by or on behalf of the father and the matter proceeded on an undefended basis before judgment was reserved.
Context
The mother and the father, both of Country D descent, were 31 and 30 years old respectively at the time of hearing. They were married in 2014 in Country D and by mid-May 2015 the mother had moved to Australia to live with the father.
The parties have only one child together, a daughter born in 2017.
As is apparent in the 2018 Judgment, the salient issue in those discrete proceedings was the father’s abusive and coercive conduct towards the mother and the child following separation.
The father’s history of violence towards the mother in the course of their brief marriage and his conduct in recent years remains a significant matter for which the mother continues to hold grave concerns with respect to her and the child’s safety.
Since March 2017, the child has not spent any time with the father.
The child remains in the primary care of the mother who is assisted by the maternal grandmother in meeting the child’s daily needs.
By way of written submissions, the mother asserted that given the serious allegations of family violence made against the father, it would not be in the child’s best interests for the child to spend supervised time with the father on an interim basis, should he be released from custody.
It is her case that the Court can be satisfied at interim hearing that the father poses an unacceptable risk to the child, and the need to protect the child from family violence outweighs any benefit of her having a meaningful relationship with him given:
·The history of family violence perpetrated by the father against the mother, and at times in the presence of the child;
·The father’s history of contravening AVOs made for the protection of the mother; and
·The serious nature of the current offences the father has been charged with.
In support of her interim application the mother relied on her affidavit dated 2 August 2018 and her recent affidavit dated 27 May 2020 filed in support of her Amended Response.
In the course of the hearing on 17 July 2020, the ICL indicated that she supported the mother’s position with the exception of two orders.
First, the ICL submitted that the injunctive orders relating to the mother was already appropriately addressed by the final AVO made for her protection in July 2019, and second, the ICL opposed the orders sought by the mother relating to overseas travel with the child to Country D on the basis that the mother previously gave evidence that the child had in the past been subjected to abuse by members of the paternal family in that same country.
It was the ICL’s proposal that:
a)The mother hold sole parental responsibility for the child;
b)The child live with the mother;
c)The child spend no time and have no communication with the father;
d)Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), the father be restrained by injunction from:
i)approaching or contact the child and / or causing any third party to do so on his behalf.
ii)assaulting, threatening, stalking, harassing or otherwise intimidating the child and / or causing any third party to do so on his behalf.
iii)attending, entering, or remaining at any place X may live, attend school, pre-school, play group or day-care and / or causing any third party to do so on his behalf.
iv)attempting to locate the child and / or any person with whom the child lives and / or causing any third party to do so on his behalf.
e)Orders placing the mother and child on the Family Law Watchlist made on 22 October 2018 continue.
At the conclusion of the hearing both the mother and the ICL agreed that it was in the child’s best interests to make interim orders in the terms sought by the ICL.
Procedural fairness
Despite being granted leave to appear by telephone and participate in the interim hearing, the father failed to appear at the court event.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…
In circumstances where the father failed to appear via telephone and no appearance was made on his behalf, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.
The mother’s assertions: the father’s perpetration of family violence
The mother deposes to the father’s pattern of abusive behaviour throughout their relationship and following separation.
It is her case that the father perpetrated physical, verbal, sexual and emotional abuse towards her as well as controlling and coercive family violence, including when she was pregnant with their child and at times in the child’s presence.
Although in her affidavit she does not set out in detail specific incidents of the father’s violent behaviour, the mother claims she has previously made a detailed police statement disclosing her experience of the father.
In her interview with the family consultant in April 2020 for the purposes of the Child Responsive Program, the mother also reported the father’s “extensive history” of family violence.
In the Child Responsive Program Memorandum prepared by the family consultant (Exh “D”) it is reported that the mother told the family consultant that, aside from receiving violent threats of harm from the father including that he would kill her, she experienced the father:
…isolating her from her family, preventing her access to both her own and shared income, punching her with closed fists, kicking and hitting her with a slipper, breaking furniture…breaking her belongings [and on one occasion] taking [the child] away from her and refused to return her until she [the mother] touched his feet with her head.
The family consultant also noted that the mother reported “a number of incidents when [the father]’s violence towards her could have been lethal or caused permanent injury, including disability to [the child] who would have been one month or less at the time”.
Giving rise to the AVO made in 2017 for the mother’s protection was the father’s (and the paternal grandmother’s) conduct which saw the mother removed out of the country against her will in March 2017.
Assuming familiarity with the 2018 Judgment, in the days preceding this incident the mother held concerns that the father sought to have her and the child returned to Country D.
After making it clear to the father and the paternal grandmother that she did not desire nor was she prepared to return to Country D, the father became enraged and communicated words to the effect of “how dare [the mother] not listen to us … I am going to kill her”. The father then became physically abusive towards the mother including slapping her in the face and punching her on different parts of her body. The paternal grandmother is also said to have hit her with a shoe.
The mother was only able to contact police the next day as the father kept her mobile phone with him.
Police records tendered by the ICL (Exh “C”) note that when police attended the family home the next day in response to the mother’s call, they held “genuine fears for the safety of [the mother] and her child” and was “concerned that [the mother] will be forced to attend Country D against her will by [the father] and his mother”. It is further noted that police also feared “ongoing assaults”.
That night both the father and paternal grandmother took the mother and child to the airport for return to Country D. This later gave the mother impetus to seek the orders made on 22 October 2018 that she and the child be placed on the Family Law Watchlist.
In March 2017 an Apprehended Violence Order was put in place by police against the father for the protection of the mother with the standard conditions as well as a condition preventing the father from approaching or contacting the mother in any way unless through a lawyer, as ordered or for the purpose of court approved counselling, mediation and/or conciliation. This was to be effective for a period of 12 months.
The father’s AVO proceedings
In late May 2018 the mother returned to Australia from Country D unbeknown to the paternal family and without the child. The mother was later able to obtain an emergency travel document for the child and have the child returned to her care in Australia after the child was said to have been abused by members of the extended paternal family in Country D.
Upon arriving in Australia, the mother immediately attended the police station to report the father’s abusive conduct and was allocated emergency accommodation.
Despite the AVO in place preventing contact between the parties, across two days in July 2017 the father telephoned the mother 34 times and sent her 11 text messages.
The father was then arrested and charged with contravening the AVO conditions in August 2017.
In November 2017 the father came before the Suburb C Local Court with respect to his breach and was placed on a good behaviour bond for a period of two years.
On the same day, following the court event, the father followed the mother to various railway stations. CCTV footage captured this occurring and the father was later seen disembarking the train where the mother had done so a few minutes earlier.
The father was again arrested and charged with breach of the AVO in December 2017.
Following a hearing at Suburb C Local Court in April 2018 the father was placed on a section 9 bond for a period of two years with conditions including that he engage in ongoing psychiatric assessment and review.
The father was also called up on his section 10 bond and was fined $500.00.
According to Police Facts tendered in the proceedings (Exh “C”) the father made further attempts to contact the mother through third parties and as a result in late October 2018 the Commonwealth Director of Public Prosecutions made a detention application under section 50 of the Bail Act 2013 (NSW).
Although the detention application was refused, the Local Court imposed a bail condition that the father attend his treating doctor within 14 days and obey all reasonable directions regarding treatment for his mental health.
Police Facts further note that on 16 October 2018 when the father attended the Family Law Court in relation to the parenting dispute, he became angry and abusive in court after he objected to a decision made by a registrar. It is noted that the father “began approaching the registrar” and was physically restrained by the Court security and thereafter removed from court. The father is said to have sworn in his language and made threats that he would “bring a gun back to court and shoot everyone”.
On 15 February 2019 the mother deposed that she had noticed the father standing across the road from her apartment building. Much to her dismay, the father was able to locate her address. She feared for her and the child’s safety and soon the father was arrested and charged for breaching the AVO as well as stalking and intimidating the mother which caused her to fear physical harm.
The father was convicted of these charges in late 2019 at Suburb B Local Court and was sentenced to 18 months imprisonment with a non-parole period concluding March 2020. Strict supervision conditions were also imposed on the father.
On this occasion the father was also called up on his section 9 bond and was sentenced to six months imprisonment.
The father lodged a severity appeal with respect to his 18-month custodial sentence but was unsuccessful.
The AVO protecting the mother was ultimately extended to a further two years and remains enforceable until July 2021. The conditions of this AVO provide, in summary, that the father not contact the mother in any way unless through a lawyer or ordered, must not go within 500 metres of where the mother lives or works and not attend the school or childcare of the child.
Current criminal proceedings
There are ongoing criminal proceedings against the father with respect to the mother’s exit from Australia against her will in March 2017.
According to police records, the father faces the following charges under the Criminal Code Act 1995 (Cth):
·Organise or facilitate the exit of another person from Australia and use coercion, threat or deception which resulted in obtaining that person’s compliance in respect of that exit;
·Use forged document to influence Commonwealth official; and
·Dishonestly influence Commonwealth official.
The father was given strict bail conditions with respect to these charges including to report to the police station once a week, but it appears there was a period of non-compliance to these conditions and as a result the father was apprehended for breach of the bail conditions.
In early 2019 the father was committed for trial with respect to these charges and it is the mother’s understanding that the matter commences in September 2020 with an estimated hearing time of four weeks.
The father is currently on remand.
Interim Applications
In Marvel v Marvel (No 2)[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackeray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter (supra) in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Eaby & Speelman (2015) FamCAFC 104 the Full Court on the same issue relevantly observed:
18.…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (the Act) outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part 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.
(2)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).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA(1) of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)]; or
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
In Smith & Smith [2017] FamCAFC 226 at [38] the Full Court in referring to s 61DA(3) said:
[38]In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3):
107.… The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied …
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Clearly, in this matter, the presumption is not to apply where there are reasonable grounds to believe that the father has engaged in family violence in light of the objective evidence available.
There also currently exists no parental relationship between the parties given for almost three years the mother has been protected by an AVO against the father preventing him from contacting her. In this regard the mother has indicated she “does not feel safe” communicating with the father to make decisions about the child’s care.
By reason of the best interest considerations referred to below, it is appropriate that the mother hold sole parental responsibility for the child.
Thus, the orders to be made are guided by the best interests principles.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
It is clear that in the present circumstances any relationship between the child and the father could not possibly be meaningful in the context of being important, significant and valuable to the child.
The child has not seen the father since March 2017, at which time she was merely two months old.
The child appears to have been exposed to family violence and the father’s aberrant behaviour on at least one occasion. The father’s threatening and intimidating behaviour also represent a serious concern.
The father has been in custody for a considerable period and there may be a prospect that he will spend a period in custody following possible sentence. This may present insurmountable difficulties in further developing what is already an extremely strained relationship.
The resumption of the father’s relationship with the child will also require a close review of his mental health.
This is particularly so given he has failed to attend regular psychiatric assessment, and clinical records from a previous psychiatrist dating back to June 2018 note that the father’s symptoms of an “adjustment disorder” comprising of “extensive preoccupation with his current stressors, difficulty sleeping on most nights, low interest in activities and low motivation”, persist. The father has also been previously prescribed antidepressants, and it is unclear whether he continues to use them.
It is important that the child remain in the primary care of the mother which represents a stable, valuable and important relationship for her.
The family consultant noted from her assessment of the mother and child in April 2020 that:
In spite of [the mother]’s description of past events, she and [the child] appear to have made good progress… [The child] and her mother appear to have a relationship that encompasses mutual joy, affection and enjoyment, all of which are important aspects of a child’s healthy development.
If the Court considers that there is veracity in [the mother]’s concerns about her own and [the child]’s safety, it would appear appropriate, for [the mother]’s emotional and psychological wellbeing, and thereto assist her in continuing to provide security and stability for [the child], that the Court consider making orders, which direct that [the child] is to live fulltime with [the mother]; and allocate sole parental responsibility to [the mother].
A continuation of the child’s established, meaningful relationship with the mother, as has always existed, is therefore important to the child going forward.
Section 60CC(2)(b) – the need to protect
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
In light of the mother’s evidence outlined above, and having particular regard to the father’s conduct with respect to the AVO made against him, the need to protect the child looms large in the proceedings.
In Police Facts pertaining to the father’s most recent breach of the AVO in 2019 (Exh “C”) police noted that:
[The father]’s conduct demonstrates a pattern of flagrant disregard for bail, conditions of his current AVO, s 10 bond and s 9 bond. [The father]’s conduct also demonstrates a pattern of intimidatory behaviour, with the nature of the intimidation and threats escalating (threats to shoot people), as well as a widening scope of persons threatened (not just [the mother], but expanding to her family here and overseas), and Family Court staff.
In these circumstances, it is submitted there are no bail conditions that could sufficiently mitigate the unacceptable risks of the accused (i) committing serious offences [and] (ii) endanger[ing] the safety of [the mother], her family and the community…
Coupled with the current criminal charges he faces, the father’s conduct as alleged gives rise for some concerns that recommend protective circumstances for the child and recommend the maintenance of her current parenting arrangement with the mother as her primary carer.
This second consideration is, therefore, given primacy which is supportive of the interim orders sought by the ICL and supported by the mother.
The Additional Considerations: s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act and are considered below.
The child is of tender age, and clearly there are no relevant views given.
The nature of the child’s relationship with each parent is considered briefly above. The mother has been the child’s primary carer since birth and has been responsible for meeting the child’s daily needs. There is no relationship with the father who at present has little prospect of resuming any relationship with the child by reason of his ongoing criminal proceedings for which he is currently in custody.
The maternal grandmother who currently lives with the mother and child has also been involved in the care of the child in recent times. While she has not been observed with the child, there is evidence that the child enjoys a “close and loving” relationship with her, including that together with the mother, the child and the maternal grandmother “spend a lot of time together and play and sing songs”.
Some concerns are held with respect to the child’s relationship with the paternal family. Quite apart from the paternal grandmother’s conduct in having the mother and child removed from Australia, it appears that on at least one occasion the child has been exposed to interfamilial conflict initiated by members of the paternal family that has resulted in some injury to the child. At hearing, the ICL again raised these concerns with respect to the child’s safety in permitting her to travel with the mother to Country D. The ICL urged the Court to dismiss orders to this effect as sought by the mother on the basis that there is no evidence to suggest that the child would be properly safeguarded from the risks posed by the paternal family.
The mother is in receipt of Centrelink payments which she uses to support the care of the child. She also receives financial assistance from the maternal grandfather from time to time in order to further assist her in meeting the child’s daily expenses. The father has not contributed any financial aid to the child and it appears there is little prospect that he will do so in the future.
There are assertions by the mother regarding the father’s history of family violence including controlling and coercive family violence that casts doubt on his parental capacity and his ability to be attuned to the child’s needs. His conduct with respect to forcibly removing the mother and child out of the country calls to question his ability to act protectively of the child as well as his attitude towards his parental obligations. He has also displayed a flagrant disregard for orders made against him for the protection of the mother.
Serious concerns remain as to the nature of the father’s conduct as they are reflected in the mother’s complaints to the family consultant and the complaints particularised in police records. There may also be practical difficulties in facilitating a relationship between the father and child that may stem from the AVO made against him for the protection of the mother and the mother’s unshaken fear of his propensity to be violent.
Notwithstanding that she is unemployed and is currently on a waiting list for more secure housing, there is no evidence to suggest that the mother is other than competent in maintaining the child and fulfilling her parental responsibilities. The child has a well-settled routine in the mother’s care and the mother has also engaged with various support services such as E Group and the Legal Aid NSW Domestic Violence Unit to ensure she provides the child with a stable living environment.
It is preferable to make an order on an interim basis to relieve the mother of some of her ongoing concerns in relation to the child’s safety, particularly in light of the father’s pattern of behaviour to date.
In all of the circumstances, orders as sought by the ICL and supported by the mother are in the best interests of the child and will be made accordingly.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 September 2020.
Associate:
Date: 4 September 2020
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