Little and Ludlow

[2017] FamCA 566

FAMILY COURT OF AUSTRALIA

LITTLE & LUDLOW [2017] FamCA 566

FAMILY LAW – CHILDREN – Undefended hearing – Where the parties separated over ten years ago – Where the father has not spent time with the child since separation – Where the father has engaged in stalking and harassing behaviour – Where multiple apprehended violence orders have been made against the father for the protection of the mother  and child – Where the child now aged 13 has no wish to spend time with the father – Where the child’s view should be afforded significant weight – Where the father has disengaged from proceedings – Where it is in the child’s best interests to make orders as sought by the mother and supported by the Independent Children’s Lawyer.  

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT: Ms Little

RESPONDENT: Mr Ludlow

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3378 of 2014

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Morrison of Mahony Family Lawyers
RESPONDENT – SELF-REPRESENTED LITIGANT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Hamilton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. That the mother have sole parental responsibility for the child B born … 2004 (“the child”).

2. That the child live with the mother.

3. That the father shall spend no time nor communicate with, or attempt to spend time or communicate with, the child.

4. That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”), the father Mr Ludlow shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the mother Ms Little or the child B, by any means whatsoever including through any third party and further the father is restrained from attending at or being within 100 meters of:

   (a)The place of residence of the mother or the child;

   (b)Attending at or being within 100 metres of any place of employment of the mother or the child; and

   (c)Attending at or being within 100 metres of any school or educational institution attended by the child. 

5. IT IS NOTED that Order (4) above and each of its subparagraphs pursuant to section 68B of the Act are injunctions made for the personal protection of the mother and the child to which section 68C of the Act would apply and accordingly any police officer made aware of these Orders and who on reasonable grounds believes that such orders and injunctions have been breached by the father, by either harassing, molesting, stalking or physically harming or threatening to harm the mother or the child, may arrest the father without warrant.

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 Little & Ludlow 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 3378  of 2014

Ms Little

Applicant

And

Mr Ludlow

Respondent

REASONS FOR JUDGMENT

introduction

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 21 July 2014 in the Family Court of Australia.

2. The application concerns 13 year old the child B born in 2004, the child of Ms Little, the applicant mother, and Mr Ludlow, the respondent father.

Context

1. The parties commenced a relationship in 2003 and commenced living together in that same year.

2. The only child of the relationship, B, was born in 2004. The mother and the father each have a child from previous relationships.

3. The parties separated on a final basis in 2007. 

4. On 21 July 2014 the mother initiated proceedings in this Court.

5. On 26 August 2014 the parties appeared before the Registrar and orders were made appointing an ICL and for the father to file a Response to the mother’s Initiating Application. Interim orders were made by consent that can be summarised as follows:

   (1)the mother have sole parental responsibility for the child;

   (2)the child live with the mother;

   (3)the father spend no time with the child; and

   (4)the father be restrained from approaching or contacting the mother and/or the child.  

6. On 12 March 2015 further orders were made for the father to file a Response to the mother’s Initiating Application.

7. On 28 April 2015 the parties were ordered to attend on a Family Consultant on 2 July 2015 to participate in the Child Responsive Program. The subsequently produced memorandum is dated 4 September 2015.

8. On 21 September 2015 orders were made by consent for the father to undertake urinalysis drug testing once a month at the request of the ICL.

9. The matter was adjourned on 11 December 2015 to facilitate the father determining whether he could raise the funds to pay for a Single Expert Report.  On 15 February 2016 a Family Report was ordered noting that the father did not have the capacity to pay for a Single Expert’s Report.

10. On 8 July 2016 the matter was adjourned to Tuesday 19 July 2016 noting that the Family Report would be released on that date.

11. On 19 July 2016 the Family Report dated 6 July 2016 was released to the parties and trial directions were made. The matter was listed for a readiness check on 11 October 2016.

Procedural fairness

1. On 11 October 2016 the father, who was at that time incarcerated, appeared via telephone link before the Registrar while in custody. It was noted that the father was expected to be released from prison on 22 February 2017 and the matter was adjourned to 7 March 2017.

2. On 7 March 2017 there was no appearance for or by the father before the Registrar. On that date the Registrar was unable to contact the father but confirmed with the prison that the father had been released on 22 February 2017 and made the following order:

   The solicitor for the mother is to advise the father at his address for service of the directions made and will confirm to him the consequences of the non-attendance.

3. On 16 May 2017 the father failed to appear and the parties sought that the matter be dealt with in his absence.

4. On that date the Court was satisfied that all appropriate attempts had been made to notify the father and that in the circumstances it was appropriate for the matter to proceed on an undefended basis. Subsequently, judgment was reserved.   

The mother’s documents

1. The mother relied upon the following documents:

   a)Initiating Application filed 21 July 2014;

   b)Notice of Risk filed 21 July 2014;

   c)her affidavit filed 21 September 2016;

   d)affidavit of Ms C filed 5 January 2015;

   e)affidavit of service filed 13 August 2014; and

   f)affidavit of Ms D filed 16 May 2017.  

The evidence

1. The mother claims that she and both her children fear the father and that he was mentally and verbally abusive throughout their relationship and has harassed and intimidated the mother and child subsequent to separation.

2. The mother asserts that the father regularly abuses drugs and alcohol and would use drugs while the child was with him in the house and when he was supposed to be caring for the child. There is limited evidence as to the parties’ relationship between 2003 and 2007 and the majority of the evidence relates to the conduct of the parties’ post-separation.  

3. Subsequent to the parties’ separation in 2007 the child has lived with the mother and has had no contact with the father.

4. The mother complains that since separation the father has engaged in intimidating and harassing behaviours such as breaking into her home, verbally abusing her in public, following and watching her and the child, sending her abusive letters or leaving such letters at her property and repeatedly calling her phone. 

The Apprehended Violence Orders

1. Numerous apprehended violence orders (AVOs), both interim and final, have been applied for and made against the father naming the mother and, at times, the child, as protected persons since separation.

2. In December 2007 the police made an application on behalf of the mother for an AVO and a final AVO was made in January 2008 naming the mother and the mother’s older daughter as protected persons. The mother asserts the father breached this AVO on numerous occasions.

3. In May 2008 the father was convicted of breach of AVO and was given a six month suspended sentence.

4. In July 2008 the father was arrested after again breaching the AVO and attending the mother’s home. In August 2008 the AVO was varied to include that the father must not enter the “boundary” of any property at which the mother or her older daughter reside or work. Subsequently, in November 2008, the father was convicted of breach of AVO and placed on a good behaviour bond for 18 months.

5. In May 2009 the father was arrested for again breaching the AVO by telephoning the mother and attending at her home. The father was released on bail. In the same month the father was again arrested for breaching the AVO and his bail conditions by attending the mother’s home.

6. In September 2009 the father was convicted for breach of the AVO and was sentenced to four months imprisonment.   

7. Following the father’s release from prison in late 2009 the mother alleges the father continued his intimidating and harassing behaviour and breached the AVO on numerous occasions which the mother reported to police. Consequently the police applied to extend the AVO which expired in January 2010. An interim AVO was made for the mother’s protection in February 2010 and a final AVO was made in May 2010 for four years.

8. The father was convicted of breaching this AVO in May 2010 and February 2011. On the second of these occasions the father was sentenced to seven months imprisonment and was placed on a three year good behaviour bond. 

9. The final AVO made in 2010 expired in early 2014 and the mother alleges the father resumed harassing her and her children.

10. The mother deposes to a specific incident that occurred in June 2014 which caused her to initiate court proceedings. On 3 June 2014 the father attended the child’s school and spoke to the child. The police applied for an AVO on her behalf but no final AVO was made in circumstances where the father signed an undertaking not to approach the mother or the child.

11. The child, who has been diagnosed with a syndrome, exhibited distressed behaviour and a fear of attending school following this incident.

12. The mother initiated proceedings in this Court in July 2014 and orders were made as referred to above restraining the father from approaching or contacting the mother and/or the child.  

13. The mother deposes to four occasions between September 2014 and February 2015 when the father has breached the court injunction currently in place preventing the father from contacting her or the child. In particular, the mother notes that the father has stood across the street from her workplace and stared at her and has taken photos of a particular event at the child’s school and posted those photos on Facebook along with criticism of a “woman” who prevents him from seeing his child.

14. In June 2016 the father was arrested following his assault on his mother, the paternal grandmother. On 23 August 2016 the father was convicted of the assault and was sentenced to a term of imprisonment. The father was released from prison on 22 February 2017 and has failed to engage in these proceedings since this date.

The Child Responsive Program Memorandum

1. On 2 July 2015 a Family Consultant interviewed the child and the mother as part of the Child Responsive Program. The father failed to attend this scheduled appointment due to allegedly having to assist his ill mother. He was interviewed later on 15 July 2015. The subsequently produced memorandum is dated 4 September 2015.

2. When interviewed the child, who was 11 years of age, spoke very positively about his mother and his half-sister and appeared to demonstrate some anxiety when asked about his memories of his father. He indicated that he did not wish to spend time with his father but that he was curious about what his father was like now and whether he had changed and may wish to meet his father once with family present.

3. The mother told the Family Consultant that she believed the father should have no contact with the child because he has “systematically harassed and stalked her since their separation and he was not capable of acting in a rational, child focused manner”. The mother also raised her concerns about the father’s drug use with the family consultant.

4. The mother indicated to the family consultant that the child’s syndrome had become worse since his interaction with his father in July 2014. The mother also indicated to the family consultant that she had been diagnosed with post-traumatic stress disorder (PTSD) and that her older daughter had been diagnosed with an anxiety disorder as a result by the father’s harassment and stalking behaviour.

5. The father, when interviewed two weeks after the mother and the child, told the family consultant that he wanted to have a relationship with the child but that because they had not seen each other for a long time they would “basically, have to start again”. The father indicated that he regretted approaching the child at school and was concerned the child may be fearful of him because of the negative things the mother may have said about him. 

6. The father admitted to using heroin in the past and to social use of cannabis. He admitted to some intrusive behaviour with regard to the mother but denied, notwithstanding court events, continuing to breach the AVO in place against him at that time.

7. The family consultant opined that the father lacked insight into the effect of his behaviour on the mother. The family consultant expressed some concern over the father’s behaviour as reported by the mother and recommended that the child not spend any time with the father until further assessment could be undertaken of the likely impact such time would have on the mother and the child.

The Family Report

1. The mother and child attended on a family consultant on 1 June 2016 for the purposes of the preparation of a Family Report. The father failed to attend the scheduled interview and was interviewed later on 17 June 2016. The Report was subsequently produced on 6 July 2016.

2. When interviewed the mother expressed many of the same concerns about the father spending time with the child as she had in July 2015 when interviewed as part of the Child Responsive Program.

3. When interviewed on 17 June 2016 the father claimed he did not attend his scheduled interview earlier in the month due to injuries he had received in a fight. The family consultant noted that the father smelled of alcohol but he denied having consumed any alcohol on the day of the interview, admitting to having consumed a large quantity of alcohol the night before. The father also raised issues as he did when interviewed in July 2015 and maintained that there was no reason for the mother to deny him a relationship with his son.

4. The child told the family consultant that he did not want to spend time with the father and, in contrast to his responses when interviewed in July 2015, stated that he was not particularly curious about his father because he did not think his father could change. He denied that the mother had negatively influenced his view of the father. The child could not be persuaded to participate in an observation with his father and so was not required to attend on 17 June 2016 for such an observation.

5. The family consultant was of the opinion that given the child’s age significant weight should be attached to his expressed views.

6. The child was observed with his mother, half-sister and maternal grandmother and no concerns were raised by the family consultant who opined that the child had a good relationship with the maternal family.   

7. The family consultant stated:

   Children in separated families typically benefit from spending time with both parents. Even when they do not have an established relationship, consideration should be given to whether attempts to establish or re-establish a relationship should be made so that the child has the opportunity to know their parent (and that parent’s side of the family) for the purposes of identity formation, and to experience that their parent desires a relationship with them. However, this is contraindicated when there is a risk of physical or psychological harm to the child or to the child’s primary carer, or when a child of mature years is resisting such contact to the degree that this causes the child significant anxiety or distress.

8. The family consultant went on to say:

   If the Court determines that [Mr Ludlow] has stalked [Ms Little], then her unwillingness to promote the child’s relationship with him would be considered protective of [the child] as well as self-protective regarding managing her own mental health and well-being. Should [Ms Little’s] mental health or well-being deteriorate due to fears that [Mr Ludlow] would seek to re-commence imposing unwanted contact or communication with her again, this would likely negatively impact her parenting capacity, as well as cause [the child] to experience distress about her distress.

   [Mr Ludlow] presented as possessing limited insight into the impact of his past behaviour on [Ms Little]. This apparent lack of insight gives cause for concern that, should he commenced (sic) spending time with [the child], this may activate latent attitudes towards [Ms Little], particularly given his admitted longing for the reconciliation of the family unit in the CPIA interviews.  

9. The family consultant held concerns that the father continued to misuse substances and was of the view that the child, if he was to spend time with the father, may reject the father because he would not meet the child’s image of a father figure.

10. Ultimately, the family consultant recommended that the mother hold sole parental responsibility for the child, that the child live with the mother and spend no time with the father, that the father be restrained from attending upon the place of work of the mother or the school of the child and that there be no provision for the father to receive information regarding the child’s schooling or other matters.

Parenting

1. The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.

2. 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).

1. 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.

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

Parental Responsibility

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:

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

   b)   …

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

2. 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.

3. Given the father’s disengagement from these proceedings, the serious allegations of stalking and harassment made by the mother and the father’s lack of relationship with the child, it is clear that it is in the best interests of the child that the presumption not be applied.

4. Accordingly, there is no need to consider equal or substantial and significant time.  Appropriate time, if any, will be determined according to the best interest considerations. 

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

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

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

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

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

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

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

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

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

3. It is clear from both the Memorandum and the Family Report produced by the family consultant that the child has a strong and meaningful relation with his mother, half-sister and maternal grandmother.

4. It is also clear that the child has no relationship to speak of with the father given he has not spent time with him for over half his life. It is to be inferred from the father’s lack of engagement in these proceedings that he does not seek to pursue a meaningful relationship with the child.  

5. It is otherwise clear that it is important for the child to continue in the care of the mother who has been the primary caregiver for the child his entire life.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above there are unacceptable risk factors in the child’s possible engagement and time with the father. 

2. This consideration, which is to be given primacy, is supportive of the orders sought by the mother.

The additional considerations: s 60CC(3)

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

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

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

   i)Each of the child's parents; and

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

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

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

   ii)To spend time with the child; and

   iii)To communicate with the child;

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

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

   i)Either of his or her parents; or

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

   with whom he or she has been living;

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

   f)The capacity of:

   i)Each of the child's parents; and

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

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

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

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

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

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

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

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

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

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

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

   v)Any other relevant matter;

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

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

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. The child has expressed the strong opinion that he does not wish to spend time with the father and given the recommendations of the family consultant and the child’s age significant weight will be attached to his views.

4. The child has a meaningful and positive relationship with his mother and half-sister with whom he has lived his entire life and it is clear that it is in the child’s best interests that these relationships be maintained. The mother and the father separated when the child was only three years of age and the child has had very limited contact with the father since then. Essentially the child has no relationship with his father.  

5. The mother has been the primary caregiver for the child since he was born and there are no concerns raised in these proceedings as to her maintenance of the child up until this point or her capacity to care for the child in the future.

6. The father has not spent time with the child for an extremely lengthy period, has at no point subsequent to separation done anything to care for the child and can be taken from his failure to engage with these proceedings to be failing to take the opportunity to participate in the child’s life in the future. By disengaging from these proceedings the father has demonstrated an inappropriate attitude towards his responsibilities of parenthood. 

7. If orders are made as sought by the mother there will be no change to the child’s current circumstances.

8. The father’s documented harassment and stalking of the mother over the lengthy period of time since separation, including the making of a series of AVOs against him naming the mother as a protected person and his incarceration for breach of the AVO and his lack of insight into how this behaviour would affect the mother or the child is concerning and contraindicative of orders being made for the child to spend time with the father.  

9. All of the relevant considerations are indicative of orders being made in the best interests of the child as sought by the mother and supported by the ICL.

10. Orders will be made as set out at the forefront of these reasons for judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 August 2017.

Legal Associate:

Date:  4 August 2017