Malena & Talat
[2024] FedCFamC1F 28
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malena & Talat [2024] FedCFamC1F 28
File number(s): SYC 3242 of 2019 Judgment of: BERMAN J Date of judgment: 1 February 2024 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where the father seeks orders for sole parental responsibility and for the children to live with him – Consideration of what time the children should spend with the mother – Risk factors – Drug use and exposure to family violence – Where the mother has frequently not attended supervised time spending or engaged in telephone time – Consideration of the impact on the children of the inconsistent time spending and communication with the mother – Meaningful relationship – Where the children’s interest would be served by orders which enable a relationship to be maintained – Consideration of the mother’s preparedness to engage in orders – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA Cases cited: Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] 55 Fam LR 310
Blanding & Blanding [2016] 55 Fam LR 218
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
N & S & The Separate Representative (1996) FLC 92-655
Sigley & Evor [2011] 44 Fam LR 439
Division: Division 1 First Instance Number of paragraphs: 137 Date of hearing: 22 January 2024 Place: Adelaide via MS Teams Counsel for the Applicant: Mr Teoh Solicitor for the Applicant: Cruz & Partners Lawyers For the Respondent: The respondent did not appear Counsel for the Independent Children’s Lawyer: Ms Court Solicitor for the Independent Children’s Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 3242 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALENA
Applicant
AND: MS TALAT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Mr Malena ("the father") have sole parental responsibility for X born 2013 and Y born 2014 (collectively "the children") with the father to inform the mother of any decisions 14 days of any major decisions to be made 14 days prior to the making of such decision and the father to consider but not be bound to take into account any input from the mother in relation to the foreshadowed decision.
2.The children live with the father.
3.The children spend time with the mother as follows:-
(a)On no fewer than one (1) occasion per month for periods of up to three (3) hours in duration with such time to be supervised by an agreed supervision centre conditional upon each of the parties bearing one half of the costs of such supervision; and
(b)Such further or other times as may be agreed between the parties in writing.
4.The parties shall provide the children with one joint telephone and the father will make the children available for telephone contact with the mother from 5.00 pm to 8.00 pm on Monday to Sunday inclusive.
5.Each party shall ensure that the other is kept informed as soon as is reasonably practicable of the following:
(a)Any medical problem or illness suffered or experienced by the children whilst in the care of the party which requires hospitalisation whilst in the care of either party;
(b)Any medication or treatment that has been prescribed by a doctor for the children whilst in the care of the parties;
(c)The current telephone contact number and any change thereto;
(d)Any appointments made with medical specialists, psychologists or psychiatrists and the reason for these appointments; and
(e)Each party will allow any medical records to be disclosed to the other so that any information regarding the children’s medical, welfare and psychological welfare can be obtained by both parents and each parent shall advise the children’s physicians of this order.
6.Each party will use their best endeavours to avoid any communication between them being conducted through or by the children.
7.Each party shall be restrained and an injunction granted restraining them from making critical or derogatory remarks about the other party and members of his or her family in the presence or within hearing of the children and each party will do all things necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of his or her family in the presence of or within the hearing of the children.
8.Pursuant to s 11(1)(b) of the Australian Passport Act 2005 the father be authorised to apply for and retain a passport for each of the children without the requirement for the mother’s written consent or approval.
9.Provided that each of the parties advise the other within fifty-six (56) days of their intention to travel overseas with the children and, they do not receive a written objection from the non-traveling party, then the traveling party is able to travel with the children out of the Commonwealth of Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Malena (“the father”) and Ms Talat (“the mother”) are unable to reach agreement in respect of the parenting arrangements for X born 2013 and Y born 2014 (collectively “the children”).
The children currently live with the father and spend no time with the mother although the orders of 7 July 2023, which amended the orders of 1 August 2022, provide for the mother to spend time with the children for a period of four hours each Sunday and, following the production of a negative hair follicle test, her time is to be increased to eight hours. However, there was an intimation from the father’s solicitor that notwithstanding the orders, the parties had reached agreement in respect of the time the mother spend with the children.
By Amended Initiating Application filed 15 September 2023, the father seeks orders that he have sole parental responsibility for the children, that the children live with him and spend supervised time with the mother, at the mother’s sole cost, at times and frequency to be determined by the Court.
The Independent Children’s Lawyer’s supports the making of orders as sought by the father.
The mother has not filed any material in accordance with the trial directions orders made on 7 July 2023 and for reasons set out below, the proceedings were listed for an undefended final hearing.
BACKGROUND
The father was born in 1990 and is 33 years old. The mother was born in 1993 and is 31 years old.
The parties commenced a relationship in 2009 and separated on a final basis in or around March 2016. There are two children of the relationship namely, X born in 2013, aged 10 and Y born in 2014, aged 9.
Prior to separation, the mother provided the primary care for the children and the father worked on a full-time basis. The father contends that the paternal grandmother provided significant assistance to the mother in caring for the children. He asserts that on occasions, the paternal grandmother would stay at the former joint residence and she would take the children to her home for up to five days.
Throughout the proceedings, the mother has made allegations that the father is a member of a criminal organisation and has perpetrated family violence against her. The mother alleges that the father consumes illicit substances. The father denies using some illicit substances however, he concedes that he recreationally consumes an illicit substance and in early 2022, he was charged for a drug related offence. In late 2022 the father was convicted, and his license was disqualified.
The father makes significant allegations pertaining to the mother’s drug use.
The father asserts that in the lead up to the final separation, he noticed a change in the mother’s behaviour and in or about early 2016, the mother admitted that she had been consuming an illicit substance.
At separation, the children ultimately remained living with the father and have spent sporadic time with the mother.
Since separation, the father deposes to multiple occasions whereby the mother became physically aggressive and the police were required to intervene. There have been multiple Apprehended Violence Orders (“AVO”) listing the mother as the defendant. The mother has been charged for assault, spent time in hospital for mental health related issues and she has been incarcerated on two occasions for drug related matters.
In late 2016, the mother was charged for drug related offences and she spent a period in prison. In mid-2017, the mother was again imprisoned for drug related charges and she spent a term in prison.
During the mother’s second imprisonment, she commenced a relationship with an inmate, Ms B. Following the mother’s release from prison in 2018, she commenced cohabitation with Ms B firstly, at Ms B’s mother’s home and ultimately, at the father’s rental property (“the C Street property”).
In late 2018, the mother contacted the father on multiple occasions and reported that Ms B assaulted her. The police issued an AVO listing the mother as the protected person and Ms B as the defendant however, notwithstanding the AVO, Ms B continued to live with the mother at the C Street property.
In late 2018, the father was concerned that the mother was again using drugs. The father and the paternal grandmother observed at handovers that the mother’s home was unkept, there was food left out and unwashed dishes. The children reported to the father that the mother and Ms B often argued, Ms B had kicked a door down and punched a hole in the wall and on occasion, the mother had tried to punch Ms B and stab her with a knife.
In early 2019, the mother attended at the father’s work and following a verbal altercation, the mother threw several heavy objects at the father’s motor vehicle. The incident was reported to the police who issued the father with an AVO.
In early 2019, the father received correspondence from his landlord informing him to vacate the C Street property. The father informed the mother in circumstances where she was still living in the C Street property. The following month, the father attended the C Street property to assist the mother in vacating and to collect his fridge. The mother and the real estate agent were also at the property. An altercation arose and the mother became physically aggressive requiring the police to attend. The mother was charged with assault.
Notwithstanding the mother’s criminal charges, the AVO and the father’s concerns regarding the mother’s drug use, the father continued to facilitate time spending between the children and the mother with him as the supervisor.
In early 2019, the father received a telephone call from X’s school informing him that the mother was in attendance and intended to collect X. The school telephoned the police but by the time the father arrived, the mother had taken X. The mother retained X in her care for nine weeks.
The mother was admitted to D Hospital for mental health related concerns in early 2022. The father asserts that around this time, the mother made violent threats, he considered she had relapsed and he ceased facilitating time spending.
In mid-2022, the father’s new partner, Ms E, started to receive threatening messages from the mother. The correspondence was reported to the police who issued an AVO listing Ms E as the protected person.
Since separation, the children have had a variety of care arrangements including living with the parents together and separately, living with both sets of grandparents and a period where the children were separated for nine weeks. However, the children have predominately lived with the father and spent sporadic time with the mother.
The father commenced proceedings by Initiating Application filed 23 May 2019 and on 9 July 2019, orders were made for the children to live with him and spend supervised time with the mother each Sunday for two hours. On 5 October 2021, orders were made lifting the requirement for the mother’s time with the children to be supervised.
Since 2022, the children have spent very little time with the mother. The father has not facilitated time spending in accordance with the orders in circumstances where the mother’s hair follicle test results came back positive for being in contact with an illicit substance. In accordance with the orders of 7 July 2023, the mother was able to contact the children via FaceTime however, since 11 August 2023 she ceased communication.
HISTORY OF THE PROCEEDINGS
The matter was listed for a first day hearing on 31 May 2023. On that occasion, the mother appeared as a self-represented litigant and in circumstances where the father is listed as the protected person on an AVO and the mother as the defendant, orders were made pursuant to s 102NA(2) of the Family Law Amendment (Family Violence and Cross Examination of Parties Act) 2018 prohibiting the mother from personally cross-examining the father.
The mother indicated to the Court that she intended to obtain legal representation and accordingly, whilst the matter was given a trial date, no trial direction orders were made to enable the mother to explore legal representation prior to the making of said orders.
The matter was listed on 28 June 2023 for further directions and to make trial direction orders. On 27 June 2023, a Notice of Address for Service was filed on behalf of the mother by F Lawyers. On this occasion, the mother appeared at the hearing as a self-represented litigant and informed the Court that although her grant of Legal Aid had been approved, she was yet to be contacted by her solicitor.
As a result of her solicitor’s non-attendance, the matter was further adjourned for trial direction orders to be made with the understanding that on the next occasion the mother’s solicitors were expected to be in attendance.
On 7 July 2023, all parties and their legal representatives appeared and trial direction orders were made with the mother to file her material by 17 November 2022.
On 13 December 2023, the matter was called on in circumstances where there had been non‑compliance by the mother with the trial direction orders. At the commencement of the hearing, no one appeared on behalf of the mother nor had the mother herself dialled into the hearing. Efforts were made by the Court to telephone the F Lawyers and the mother. Ultimately, the mother dialled into the hearing and informed the Court that she was unaware of the listing date and that she had not been able to make contact with her solicitor for several weeks.
The mother foreshadowed that an application seeking to vacate the trial listing may be forthcoming however, in the absence of any formal application and in circumstances where the F Lawyers was still the representative on the Court file, I considered it appropriate to retain the trial listing date but to relist the matter to enable the mother to make contact with her solicitors.
On 19 December 2023, a solicitor from F Lawyers attended the hearing on behalf of the mother however, the mother was not in attendance. The mother’s solicitor informed the Court that he had written instructions that the mother sought to withdraw from the proceedings and he sought leave to withdraw.
In circumstances where there were interim time spending orders that provided for the mother to spend time with the children, I queried as to whether the mother’s instructions were to discharge the interim orders however, the mother’s solicitor did not have instructions. I considered that the matter should remain listed and proceed as an undefended hearing.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
(1)Amended Initiating Application filed 15 September 2023;
(2)Affidavit of the father filed 15 September 2023; and
(3)Affidavit of Ms G filed 18 September 2023.
The ICL relies upon the following documents:-
(1)Family Assessment Report dated 8 January 2024; and
(2)Family Assessment Reports dated 1 October 2021.
The father and the ICL each provided a Case Outline prior to the commencement of the hearing.
THE EVIDENCE
The father
The father sets out in his trial affidavit that during the relationship he worked long hours and the mother was the primary carer together with assistance from the paternal grandmother. He considered that around the time of separation there was a change in the mother’s behaviour and he raised concerns about her use of illicit substances.
Following separation, the father confirms that the children were in a variety of care arrangements and that their relationship and time spending with the mother was sporadic and unclear.
The father continued to communicate with the mother and facilitate time spending until the conclusion of 2018 when the mother’s relationship with Ms B became increasingly violent. The father informed the mother in January 2019 that he would cease time spending following her erratic behaviour including, threats that the mother would relocate with the children to Queensland.
In early 2019, following a violent incident between the parties, the father obtained an AVO listing him as the protected person and the mother as the defendant.
There was a further physical altercation at the C Street property the following month where the parties and the real estate agent were in attendance. The real estate agent telephoned the police and the father understands that the mother was charged with assault.
In early 2019 the father’s home was broken into. Shortly thereafter, the father received pictures from a friend of photos posted by the mother of the inside of the father’s residence. The father reported this to the police and the mother was charged with an offence.
Later that month the mother attended at X’s school and collected her without the father’s consent or knowledge. X spent approximately nine weeks in the mother’s sole care before she was returned to the father.
The father commenced proceedings on 25 May 2019 and orders were made on 19 July 2019 for the children to live with the father and spend supervised time with the mother for two hours each week.
Between July 2019 and early 2022, the mother’s time with the children progressed in accordance with various interim orders. However, following the mother’s admission to hospital in early 2022 for mental health reasons, the father ceased time spending.
In mid-2022, the father’s new partner, Ms E, received threatening messages from the mother via Facebook. The threats were reported to the police who issued Ms E an AVO.
Following a Family Dispute Resolution Conference on 1 August 2022, an agreement was reached for the mother to spend time with the children subject to a hair follicle and urine analysis testing. The father received a text message from the mother in September informing him that she would not undertake a hair follicle test and later that month, she contacted the father about using a drug which the father understood to be an illicit substance.
The mother did not spend time with the children until 31 May 2023 following the production of a negative hair follicle result from ‘Hair Follicle Lab Test’ which was provided to the father in March 2023. The father questioned the integrity of the test results which were not obtained in accordance with the orders.
The father received a further hair follicle test from the mother in July 2023 which showed a positive result for an illicit substance and that the mother had recently dyed her hair which may have weakened the sample. Notwithstanding this, the father instructed his solicitor to contact the mother about supervised time spending in late July however, no response was received until 11 August 2023.
The father has since re-partnered with Ms E and they now have a child. Ms E plays an integral role in the children’s lives.
The father’s evidence is that he has not spoken with the children about the mother’s drug use or mental health issues however, it is likely that the children are aware given that they have spent inconsistent or no time with the mother for several years.
The father acknowledges that the children would benefit from having a relationship with the mother so long as they are not exposed to any risk of harm associated with the mother’s drug use and mental health struggles. However, the father placed great importance on the need for a clear arrangement and that any further change or disruption would be likely to have a negative impact on the children.
The paternal grandmother
The father relies upon the affidavit of the paternal grandmother filed 18 September 2023.
The paternal grandmother has been significantly involved in the children’s lives, initially to assist the mother with the care of the children between 2012 and 2016 but also following the parties’ separation. Throughout the relationship and following separation, the children have stayed at the paternal grandmother’s house for several weeks at a time.
She deposes to observing a significant change in the mother’s behaviour following the birth of Y including, an occasion in 2016 when the mother telephoned the paternal grandmother and informed her that she had reversed her motor vehicle into the father and another occasion when the mother was locked in the bathroom threatening suicide.
The basis of the paternal grandmother’s affidavit, however, deposes to conversations had with the children whilst they have been in her care.
She details that the children confided in her about the violent relationship between the mother and Ms B and the physical and verbal altercations they witnessed. However, more recently, the paternal grandmother deposes that the children confided in her about their time spending at the mother’s home.
The concerns arising from the children’s disclosures are that the mother has been driving with them in the car (notwithstanding that she has no license), there was rarely food in the mother’s house and on multiple occasions the mother would lock herself in her bedroom whilst she had male friends over.
Child Court Expert
In her capacity as a Court Child Expert, Ms H prepared a Family Assessment Report dated 8 January 2024 following interviews with the parties, Ms E, the paternal grandmother and the children.
At the time of the interview, the children were living with the father and Ms E and spending one and a half hours with the mother each alternate Saturday at a supervised Contact Centre.
The father’s proposal was that he have sole parental responsibility, that the children live with him and spend time with the mother conditional upon the results of her hair follicle tests.
The Child Court Expert noted that the parties have been unable to resolve their parenting dispute for five years and that since separation, a significant amount of various care arrangements had been attempted and failed and, notwithstanding the efforts of the parties, issues pertaining to parental responsibility, lives with and spends time with all remained in dispute.
The father confirmed that his proposal had not changed and that he remained concerned about the mother’s drug use and mental health issues. He acknowledged that his proposal for ongoing supervised time had limitations, but he had given consideration to various types of supervision such as a private supervisor, a family member or a community-based supervisor. However, the father acknowledged that he had not given consideration to the ongoing cost of professional supervision.
At the time of interview, the mother was unclear about her proposal and the Child Court Expert noted that the mother spoke in general terms and referred to “leaving the decision… for the judge to determine”.[1] It was noted that the mother was clear in expressing that she “does not wish to engage in supervised time with the children”[2] and it was her belief that there is no reason that there could not be an equal shared care arrangement.
[1] Family Assessment Report dated 8 January 2024 at [19].
[2] Family Assessment Report dated 8 January 2024 at [19].
The Child Court Expert identified that the impact of family violence and the children’s sense of safety, the ongoing litigation and the impact of the parental conflict on the mother’s psychological wellbeing were matters of significance.
The father was observed to be fatigued with the ongoing litigation. He reported that his focus was on maintaining consistency for the children specifically around their schooling. He reported concerns regarding the children’s relationship with the mother stating that “the children feel “confused and saddened” by the inconsistent communication with…[the] mother”.[3] He acknowledged that the children would benefit from maintaining a consistent and safe relationship with the mother and that he considered this could be achieved through supervised time.
[3] Family Assessment Report dated 8 January 2024 at [24].
The mother was observed to be polite, delighted when talking about the children and hopeful at the prospect of a final hearing. It was observed that on occasion, her mood was low, she appeared sombre and emotional when recounting traumatic events and the Court Child Expert noted that the mother was somewhat “defeated by the Court proceedings”.[4]
[4] Family Assessment Report dated 8 January 2024 at [26].
Although the children have not spent a lot of time with the mother between March 2022 and September 2023, the mother reported that when she spends time with the children, they ask her when they will get to see her again. She considered that she is able to maintain a good relationship with the children notwithstanding the tumultuous past five years.
The parties agreed that there was no co-parenting relationship between them and that was unlikely to change with each of them reporting that they were unable to communicate with the other. The mother reported that as a result of the parties’ poor relationship, she was the one to cease telephone time in accordance with the orders as she “did not wish to give [the father] or [Ms E] the opportunity to put her in a position of conflict again”.[5]
[5] Family Assessment Report dated 8 January 2024 at [28].
The mother reported that she received no updates from the father in relation to the children’s school or health and the information she has, has been obtained through contacting the children’s school or medical provider, directly.
The mother conceded that Ms E has had a positive impact on the father’s parenting and that she no longer holds concerns about the father’s home environment because of Ms E, noting that Ms E plays a positive role in the children’s lives.
Ms E described a positive relationship between her and the children. She spoke about the impacts of the inconsistent relationship between the children and the mother and reported that the children are confused and distressed by the mother’s promises, which usually fall through. Ms E reported that the children should have a relationship with their mother however, she also reported that “[the mother] needs to commit to supervised visits, be consisted in her communication with the children and ensure that [the children] are not exposed to inappropriate conversations”.[6]
[6] Family Assessment Report dated 8 January 2024 at [33].
The paternal grandmother was interviewed on the basis that the children have, and continue to, spend significant time with her in Town J. The paternal grandmother reported that it was the mother who was the perpetrator of family violence and that during the parties’ relationship, the children were exposed to significant family violence. She reported that following the cessation of the mother’s time with the children in March 2022, the children made disclosures to her that the mother threatened and verbally abused them.
The paternal grandmother considered that the children’s safety needs to be prioritised and that the mother needs time to show that she can avoid relapsing which she believes impacts the children’s emotional wellbeing and safety.
In interview, the mother reported that the father introduced her to illicit substances and that she was the victim of extensive family violence perpetrated by him during the relationship and post separation. The Court Child Expert reported that the events as described by the mother appear to be a pattern of coercive and controlling behaviour and if substantiated, are of significant concern as they indicate a high risk of family violence.
Risk of exposure to parent substance misuse is another primary concern. Whilst the mother denied that she has used illicit substances for two years, the Child Court Export reported that based on the mother’s own admission, the evidence suggests that the mother was likely using illicit substances as recently as the end of 2021 or beginning of 2022. The Child Court Export held genuine concerns as to the lack of insight by the mother in respect of the same.
The Court Child Expert noted that the children have been shieled from being exposed to conversations pertaining to the mother’s drug use and mental health issues nor have they been burdened by adult discussions. She commended both parties. Nevertheless, it is evident that the children are impacted by the ongoing and protracted litigation and they are acutely aware of the parental dispute.
The Child Court Expert recommended that the children would benefit from structure and consistency in their care arrangements and that predictability and routine ought to be created for the children.
The Child Court Expert reported risks associated with all potential outcomes however, noting that the children are currently settled in their routine, have a close relationship with Ms E and do not wish to alter the existing care arrangements, any change to the children living with the father would likely cause considerable disruption to them.
With respect to the time the children spend with the mother, the Court Child Expert was unable to make any definitive recommendation however, she opined that:
85.…it is evident that the children have already formed a well-established relationship with their mother and, it is clear that she plays an important role in their lives. The potential loss of their mother and their spending no time with her, at this stage, would likely be detrimental to the children’s wellbeing. Therefore, the delicate balance in this matter would appear to be how to safely support the children being able to maintain an ongoing relationship with their mother. While, to a significant extent, this will ultimately be up to [the mother]… [the father] will also have an important role in ensuring that he promotes the children’s ongoing relationships with their mother.
The Court Child Expert considered that despite the mother’s best intentions to care for the children, unsupervised time and overnight time would potentially place the children at risk of harm. She opined that supervised time would offer the children consistency and enable them to adjust to change given that they have not spent time with her recently.
PRINCIPLES RELATING TO PARENTING CONSIDERATIONS
The children reside with the father and spend virtually no time with the mother although I accept the evidence that the children have been able to communicate with the mother absent any physical time spending.
The evidence supports a finding that the mother has engaged in taking illicit substances, spent periods of time in jail and has been the defendant of multiple AVOs.
The father seeks an order for sole parental responsibility for the children.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:
(1)Give consideration to the proposal put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2), namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents’ family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The father seeks an order for sole parental responsibility for the long term care, welfare and development of the children.
I note the directions contained in s 60CC(2A) the Act. I have regard to the allegations of the father regarding the mother’s history of abusing illicit substances and a propensity to engage in risky, and often violent, behaviour. I also bring to account that the mother has exposed the children to family violence.
The ICL supports the orders sought by the father.
Meaningful relationship
Following the remarks of Finn J in Blanding & Blanding [2016] 55 Fam LR 218, where her Honour considered the Full Court decision in Beckham & Desprez [2015] 55 Fam LR 310, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Sigley & Evor [2011] 44 Fam LR 439 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said as follows:-
39.Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
The children have effectively lived with the father for five years and spent sporadic time with the mother. Up until recently, the mother remained in communication with children via FaceTime and she received updates in relation to the children’s schooling and medical records.
I accept the father’s evidence that whilst he considers that the mother presents as a risk to the children, he would not prevent them from communicating with the mother if they expressed a wish to do so.
The father and Ms E agree that it is important for the children to maintain a relationship with the mother although currently, they do not spend time with her and there has not been telephone communication in several months.
There appears to be no difficulty in X attending, or expressing a desire to attend, time spending with the mother. The evidence suggests that Y is more reluctant however this may arise from the environment of supervised time spending.
Meaningful relationship is a legal construct and is best understood by the relationship having substance, engagement, and involvement.
The father seeks that the mother’s time continues to be the subject of supervision.
The Family Assessment Report in respect of the mother’s time with the children, in particular X, highlights the importance of physical interaction and indicates that the children are not frightened of the mother nor are they reluctant to spend time with her following a period of not seeing her.
I consider that a chance of a meaningful relationship may well benefit the children providing it is safe for it to occur and is practically possible.
Are the children at risk?
It is a truism, unlikely to be the subject of opposition, that ongoing litigation can never be seen as being in the best interests of a child. This is ongoing litigation and I am satisfied that the children are aware of the nature of the litigation and the circumstances in which they find themselves.
It is too easily ignored that the impact and effect on a child of being subjected to constant questioning, interview, and assessment in relation to ongoing parenting proceedings, may well subject the child to a risk of emotional harm. It is also not controversial that the parties’ have grown tired of the proceedings, and it has likely had a deleterious impact on them.
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:-
73. …
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
The mother alleges that the father perpetrated family violence and coercive and controlling behaviour however, no evidence was presented that would enable a finding on the balance of probabilities that the father engaged in aggressive or harmful conduct as alleged. The mother also conceded in interview to the Child Court Expert that she is not concerned about the children’s safety in the father’s care.
The mother has spent time in jail for drug related offences, has multiple AVOs against her and has recently spent time in hospital for mental health related issues. The only evidence that suggests the mother may still have issues relating to drug use is the latest hair follicle test which indicates that remnant residue of an illicit substance was present from either consumption or proximity.
In summary, the evidence does not support a finding that the children are at risk in the father’s care but is suggestive of a cautious approach in respect of the time that the children spend with the mother.
Wishes of the children
X was aged 10 years at the time of interview. She impressed the Child Court Expert as being polite and friendly however she was uncomfortable discussing the mother or the dynamics between the parties.
In interview, X reported that she likes seeing the mother at the Contact Centre and she expressed a desire to spend a few more hours with her. However, X did not identify any other changes she sought to be made to the current care arrangements.
Y was aged 9 years at the time of interview. He expressed an enjoyment for spending time with the mother but reported that he did not enjoy the Contact Centre. Y reported that more time with the mother would be “boring” and that less time “would not make a difference”.
The children spent time with the mother as part of the interview process. The Child Court Expert reported that X was excited to see the mother and gave her a hug upon arrival whereas Y did not say hello or show his mother physical affection however, he was not distressed at being in the mother’s presence. It was reported that both children appeared comfortable with the mother and X drew a picture that said “I love mum”.
The Child Court Expert opined that X appeared to have a close connection with the mother whereas Y appeared somewhat detached. She further opined that the detachment may arise from Y’s discomfort in the Registry which would accord with his reported experience of expressing a wish to spend time with the mother in the “community” and outside of a Contact Centre.
The nature of the relationship with the parties and others
The children’s primary attachment is with the father. The children also have a significant attachment with the father’s new partner, Ms E and the paternal grandparents (in particular the paternal grandmother). The reality is that there has been little time spent with the mother and no overnight time for several years.
It is likely that the better way forward is to be guided by what the children would like to do in circumstances where I am satisfied the father would be prepared to facilitate a relationship if the children sought that it occur.
The likely effect of any changes in the child’s circumstances
There will be no change to the children’s current circumstances. I propose to make an order for the mother to spend time with the children on no fewer than one occasion per month. It will be a matter for the mother as to whether she chooses to engage in the time spending order. However, in accordance with the father’s proposed orders, as supported by the ICL and the Child Court Expert’s recommendations, the mother’s time with the children should be remain supervised and not include an overnight component.
Both parties reported to the Child Court Expert that it was important that the children have stability and routine. The mother considers that there is no risk to the children in the father’s household and that it is important that the children remain at their current school.
The mother does not seek any orders. Whilst the matter proceeded on an undefended basis, orders sought by the mother would still be a relevant consideration. In this case, the mother made it very clear in her recent interview with the Child Court Expert that she was prepared to accept whatever order the Court decided to make.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children. The father has effectively taken on the obligation for making all decisions in respect of major issues affecting the children. It is likely that the mother has not participated in the decision-making process for the majority of the last five years either in respect of long term issues as well as the day-to-day decisions.
The parties agree that there is no co-parenting relationship nor is there likely to be one. It is not reasonable to expect the father to be able to enter into a discussion with the mother or consider consensus.
I consider that the best interests of the children are served by the father having sole parental responsibility however, I consider that each party, in particular the father, should keep the other informed as soon as is reasonably practicable of any medical problems, illnesses or specialist appointments.
CONCLUSION
I consider that both children would benefit from a relationship with the mother even on a somewhat limited basis and I have confidence that the father would facilitate a relationship with the mother if the children expressed a request to do so. That being said, the children have been impacted by the protracted litigation and the instability of the time spending with the mother for a myriad of reasons. The Child Court Expert opined that stability and routine are required for the children.
I propose to make an order in terms of the father’s proposed Minute of Order that the children spend time with the mother on no fewer than one occasion per month and on such further and other times as agreed between the parties.
I consider that the mother should be able to continue to receive information and updates from the children’s school and that the father should keep the mother informed of any matters pertaining to the children’s health and wellbeing.
Up until recently, the mother was in communication with the children and the evidence suggests that there was no problem that arose as between the children and the mother. The issue arose from the communication between the mother and the father the parties agree that there is no ability for them to co-parent or communicate. I propose to make an order that the children be provided with a telephone for the mother to call each night.
The evidence suggests that the father and Ms E will facilitate a relationship with the mother. It will be a matter for the mother as to whether she engages in both the telephone time and the potential for time spending.
On an interim basis, the mother’s time with the children has been the subject of supervision provided by K Contact Centre. Exhibit “2” in the proceedings is a Short Form Report that was entirely complementary of the mother’s engagement with the children and provided corroboration that the children’s interests would be best served by orders that at least enabled a relationship to be maintained subject to the mother’s preparedness to undertake supervised time.
K Contact Centre are able to support the family for a further eight sessions but that after that, the parties will need to find and enrol in a suitable privately operated supervised contact service.
The ICL and solicitors for the father have provided a further advice that contact supervision, when required, could occur through L Contact Service who would be able to begin to facilitate supervised contact from 1 February 2024. The supervised contact would be able to occur in a region of Sydney which is likely to be proximate to where each of the parties reside. The rates proposed are around $90 per hour for a weekday supervised contact and around $130 per hour being the Sunday rate. There is also a three-hour minimum booking time per visit.
Given what I understand of the mother’s current employment arrangements and those of the father, I have some confidence that an order that requires the parties to share the costs would not be onerous on each of them.
The three-hour minimum booking time per visit would support an order that whilst the parties engage in K Contact Centre, the supervised time will be up to two hours but that when the parties are required to engage in privately provided supervision, then the time should be extended up to three hours.
The father initially sought orders that would enable him to travel with the children out of the Commonwealth of Australia. Even though the proceedings were heard on an undefended basis, I noted that there was no evidence in the father’s affidavit material that could be considered as supporting the order for overseas travel. It is an important consideration that all reasonable steps be taken to avoid further litigation. As such, I have decided that subject to the balance of the orders made, if either of the parties are able to travel overseas with the children, they should give 56 day’s notice of their intention to do so. If there is no objection raised by the nontraveling party then travel is permitted. If the nontraveling party objects, then the children are not able to be removed from the Commonwealth of Australia without subsequent consent or separate order.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 February 2024
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