Marchesi & Dougal
[2021] FamCA 474
•2 July 2021
FAMILY COURT OF AUSTRALIA
Marchesi & Dougal [2021] FamCA 474
File number(s): SYC 5955 of 2017 Judgment of: HARPER J Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – PARENTING – Whether sole parental responsibility should be allocated to the mother in circumstances where the father has not participated in the proceedings – Whether the children should spend any time with the father in circumstances where there have been allegations of family violence by the father – Whether final orders should be made on an undefended basis. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 64B, 65AA, 65D, 65DAB Cases cited: Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
CDJ v VAJ (1998) 197 CLR 172
Champness v Hanson (2009) FLC 93-407
Cox & Pedrana (2013) FLC 93-537
Dundas & Blake (2013) FLC 93-552
Godfrey v Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
Helbig & Rowe and Ors [2016] FamCAFC 117
Jollie & Dysart [2014] FamCAFC 149
Lovett & McGregor (2019) FLC 93-935
M v S (2007) FLC 93-313
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
MRRv GR (2010) 240 CLR 461
Robertson & Sento [2009] FamCAFC 49
Tibb & Sheean (2018) 58 Fam LR 351
Number of paragraphs: 87 Date of hearing: 24 June 2021 Place: Sydney Solicitor for the Applicant: No Appearance Solicitor for the Respondent: Mahony Family Lawyers Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Tiyce Lawyers ORDERS
SYC 5955 of 2017 BETWEEN: MR MARCHESI
ApplicantAND: MS DOUGAL
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children.
2.The children live with the mother.
3.The children spend no time with the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marchesi & Dougal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Harper J
These proceedings concern two children X born in 2010 and is presently 11 years old, and Y born in 2015 and is presently five years old (together referred to as “the children”).
The children live with their mother, the Respondent in these proceedings who will be referred to as “the mother”.
The parties commenced a relationship in March 2009. They began cohabitation briefly in late 2010 and began cohabitating on a permanent basis in 2011. The parties are separated on a final basis on or about 5 July 2017. The children have spent no time with their father since 5 July 2017.
The proceedings were commenced by the father filing an initiating application on 11 September 2017 in the Federal circuit Court of Australia. An Independent Children's Lawyer (“ICL”) was appointed on 30 October 2017. On 13 June 2019 the proceedings were transferred to the Family Court of Australia at Sydney.
On 11 May 2020 the Applicant Father (“the father) failed to appear at court and the matter was adjourned. On 27 May 2020 orders were made for the preparation of a Family Report. On 3 March 2021 the Family Report was released to the parties. I will return to its recommendations later in these reasons.
The matter was again before the Court on 10 May 2021. The father again failed to appear. On the application of the mother supported by the ICL the matter was listed for final hearing on an undefended basis on 24 June 2021.
On 24 June 2021 there was evidence that in accordance with the orders of the Court the ICL by letter emailed on 13 May 2021 to the email address "..." notified the father of orders made on 10 May 2021 listing the matter for undefended hearing at 10 am on 24 June 2021 together with other procedural orders including the preparation of a case outline document. By further letter emailed on 21 June 2021 the ICL again notified the father that the proceedings were listed for undefended hearing on Thursday, 24 June 2021. The letter made clear to the father that the Court "has the power to make these orders without your appearance or engagement, and both the mother and the Independent children's lawyer will ask the court to do so". The father was informed that the letter would be relied upon as evidence of notice of what is to occur on Thursday, 24 June 2021.
The solicitor for the mother also spoke to the father directly by telephone on 21 June 2021, after the father telephoned her office. In that conversation she confirmed that his email address is "...". The father confirmed that he had received the ICL’s documents on 21 June 2021 and knew of the listing on 24 June 2021. He asked if the hearing would take place in person or by Microsoft Teams. He stated to the mother’s solicitor that he did not attend on 10 May because he received no email, despite all correspondence from the Court being sent to his email address.
I am satisfied that the father was given sufficient notification of the proposed undefended hearing on 24 June 2021. It is clear that he knew it was taking place. No correspondence was received by the Court from the father about the hearing on 24 June 2021. I infer from his failure to attend, file any documentary material or evidence that the father did not propose to participate in the final hearing on 24 June 2021. I am satisfied it was appropriate to proceed in the father's absence.
It was common ground between the mother and the ICL that the central questions were the allocation of sole parental responsibility to the mother and whether there should be orders for the children to spend any time with the father.
The mother contended that she should be allocated sole parental responsibility and that there be no orders for the children the children to spend time with the father. The ICL supports these orders.
The mother relied upon the following:
(a)Case outline filed 18 June 2021
(b)Response filed 24 October 2017
(c)Affidavit of Ms Dougal filed 4 June 2021
The ICL relied upon the following:
(a)Case outline filed 17 June 2021
(b)Affidavit of Ms B filed 24 June 2021
RECOMMENDATIONS
Both the mother and the ICL relied on expert evidence contained in the Family Report which was issued by Ms C dated 2 March 2021. The report was based on interviews with the parties and the children.
Ms C made the following recommendations:
1. It is recommended that the children live with their mother
2. It is recommended that Ms Dougal hold sole parental responsibility
3.It is recommended that if the raised concerns about Mr Marchesi’s behaviour are considered to be valid, no Orders are made for the children to spend time with him
4.It is recommended that if supervised time is seen to mitigate any actual or perceived risks, that the children start spending such time with Mr Marchesi
5.It is recommended that X is engaged with professional therapeutic support (and that Ms Dougal continue to receive ongoing support) if supervised time with Mr Marchesi commences
6.It is recommended that consideration is given to the children spending occasional supervised time with paternal family members.
THE LAW
In parenting proceedings, the best interests of a child are the paramount consideration (s 60CA of the Act).
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act. Section 61C of the Act makes clear that, unless displaced by Court order, the parties' parental responsibility may be exercised either jointly or severally: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 ("Goode & Goode").
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds for the Court to believe that a parent of the children has engaged in abuse or family violence (s 61DA(2) of the Act). The Full Court has made clear that any finding of family violence satisfies the expression "reasonable grounds to believe" in s 61DA(2), preventing the application of the presumption. If the presumption does not apply for this reason, there is no residual discretion to apply it: Robertson & Sento [2009] FamCAFC 49 per Finn J at [13]; Boyce & Boyce [2015] FamCAFC 60 at [21].
The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for their parents to have such equal shared parental responsibility (s 61DA(4) of the Act). In Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133 the Full Court held, in considering the operation of s 61DA(4), that s 61DA is mandatory in requiring application of the presumption "until a level of satisfaction on the evidence is reached that it would not be in the interests of the child for it to apply" (at [57]); there needs to be "explicit and cogent reasons why the presumption should be rebutted" (at [61]). Those reasons are to be found in the consideration and discussion of the factors in s 60CC(2) and (3) of the Act.
The Full Court pointed out in Cox & Pedrana (2013) FLC 93-537 at [19] (following MRRv GR (2010) 240 CLR 461 at [7]) if the presumption does not apply or is rebutted, the consequence is that the power to make parenting orders pursuant to s 65D is "at large" (albeit subject always to the best interests of the subject children being the paramount consideration: s 60CA; s 65AA.). Thus, a parenting order may still be made that deals with the allocation of parental responsibility for a child (s 64B(2)(c)). It may also deal with the form of consultations [parents] are to have with one another about decisions to be made in the exercise of that responsibility (s 64B(2)(d)).
The proposal of the mother for sole parental responsibility carries with it the contention that the presumption does not apply or has been rebutted. As explained later in these reasons. I accept this contention is correct.
The Best Interests of the Child
The best interests of a child are to be determined by an examination of the considerations set out in ss 60CC(2) and (3) of the Act. Section 60CC(1) provides that the Court “must consider” the matters set out in ss 60CC(2) and (3). The use of the verb “consider” in s 60CC(1) imposes an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act: Lovett & McGregor; (2019) FLC 93-935; [2019] FamCAFC 253 at [72]; Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 at [43]. Although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 at [48]; Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 (“Tibb & Sheean”) at [84]. The proposals of the parties; their evidence; the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean at [87]. In accordance with these authorities, I have given consideration to the each of matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the mother and the ICL conducted the final hearing.
PRIMARY CONSIDERATIONS
In order to determine the child's best interests, the Court must first have regard to the "primary considerations" set out in s 60CC(2) of the Act:
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.
In applying the considerations set out in s 60CC(2), the Court is to give greater weight to the consideration in paragraph (b).
Section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents
A "meaningful relationship" is one which is "important, significant and valuable to the child": Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 ("McCall");
A "prospective approach" is the preferred approach to s 60CC(2)(a), requiring the Court to "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": McCall at [118]-[119];
Depending on the factual circumstances "the present relationship approach" may be relevant, requiring the Court to examine the evidence "of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made"; however, it is not the preferred approach since s 60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child's parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall at [118]-[119].
The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2007) FLC 93-313; (2006) 37 Fam LR 32; [2006] FamCA 1408; Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102; Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
There is no dispute that the children benefit from a meaningful relationship with the mother. They have lived with her alone since July 2017.
My discussion of the evidence concerning the father's behaviour and family violence does not permit a conclusion that the children would benefit from a meaningful relationship with him. The evidence makes clear that X fears her father, and Y, who was not yet two years old at final separation in July 2017 is unlikely to have any memory of his father, let alone any relationship. The children have had no relationship with the father since July 2017.
Section 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence .
It is helpful to set out some statutory definitions in relation to this consideration.
The terms "abuse" (see s 4 of the Act) and "family violence" (see s 4AB(1) of the Act) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) …
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) ...
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s 4AB(3) of the Act). The Act provides in s 4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 60CG requires the Court to consider the question of "unacceptable risk of family violence" and appropriate safeguards in making orders. It provides as follows:
Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The mother and the ICL argued that the father posed an unacceptable risk to the children. Recently in Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 ("Bant") the Full Court succinctly stated the law as follows at [38] - [41]:
[38] In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[39] It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue”, namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B [1993] FamCA 143; (1993) FLC 92-357).
40. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. ...Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. ...
In Bant at [51] the Full Court also made clear that the conclusion of the existence and magnitude of a risk should be based on all of the facts and circumstances and it would not be proper to "atomise" the evidence by analysing each fact or circumstance to see whether that particular fact would support the conclusion of risk. Rather, a conclusion of risk is formed by a consideration of all aspects taking into account the necessary elements of prediction and assumptions about the future to which the Court spoke in CDJ v VAJ.
In her evidence the mother details numerous instances of abusive, aggressive, denigrating and hostile behaviour by the father towards her, witnessed by X, and towards X herself.
Some examples taken from the mother's evidence will suffice to illustrate this. I accept this evidence. X was often the target of the father. In the period between 2015 and 2017 the mother observed the father often smack X on the leg or arm leaving red marks resembling a handprint or a raised welt-type mark on the child's skin. In 2016 the father cornered X against the wall and yelled at her, causing X her to wet herself. After this incident X reported feeling scared of father. At various times during the relationship the father made comments to X, such as: "I would love to choke you", "I would love to skull-fuck you", "I'll squash your head so hard your brain will pop out" and, "I'd love to squeeze you so tight, your brains will fly out". He denigrated her with comments such as, "You are a Dougal: you're dumb like them", "you are a Dougal spastic like your mother", "you're a mutt like your mother" and "you piece of shit".
The father made many concerning remarks to the mother, such as, "If you leave me, I'll make sure you're not found… I'll put you in a body bag and feed you to the sharks", and "If you leave me, I'm going to blow up the car with you and the kids in it". He abused her "you dog", "you mutt", "I'd love to squash your head", " Ms Dougal needs to go to the gym, look how fat she is, the fat dog".
During the relationship the father withdrew the mother's Centrelink money from her bank account. He questioned her about how she spent money. His behaviour was often coercive and controlling. He told the mother she was not allowed to leave the house without his permission. He controlled her phone use and regularly went through her phone to check who she was messaging on social media. He prevented her from contacting friends or family for months at a time.
Close to the point of separation the father referred to the mother as "you stupid junkie slut". He told her, "you wait until you get home, I'm going to slit your throat. If you take the kids from me, I'll put you in a body bag you dog. I'm going to kill you". On about 9 June 2021 the father grabbed the mother's hair and pushed her whilst she was holding Y, then punched her in the chest. X was also present. Father then said to mother "if you leave or take the kids, I'll make sure you're not found and I'll put you in a body bag and feed you to the sharks". On 30 June 2017 when the mother was attempting to leave he called her and said, "Where are you, I'll fucking find you… you better not take my fucking kids from me. I'll put you in a fucking body bag".
At final separation on 5 July 2017 the mother fled with the children and was provided with temporary accommodation by Victims Services.
Mother reported the father's violence to Police and he was arrested. The father was charged with stalk/intimidate intending to cause fear of physical or mental harm, assault occasioning actual bodily harm, common assault; and intentionally or recklessly destroy/damage property. A provisional no-contact ADVO was made for mother and children's protection, naming the father as the Defendant. This became an Interim no-contact ADVO in July 2017.
On 19 October 2017 after the father was inadvertently told of X's school address, when the mother was collecting X from the school she observed the father to drive past her, do a u-turn and drive back towards her very slowly. She observed the father to look directly at her and Y. Mother was scared and intimidated. The mother made a report to Suburb D Police Station. The father was arrested, charged with contravening the ADVO and was granted bail.
In October 2018 the criminal charges against the father was dismissed. However, a Final no-contact ADVO was made for mother and children's protection naming father as the Defendant.
On 15 September 2019 the mother observed a dark motor vehicle drive past her house. She later observed the father driving the same motor vehicle. She saw him again driving past her home the same afternoon at a speed of approximately 3km/hr. Mother reports matter to Police and Police apply to vary the existing Final ADVO.
In November 2019 the Final ADVO was varied restraining the father from going within 100 metres of any place where the mother or children live or work. This Final ADVO expires in November 2021.
Although many of these events happened some four years ago, the aggression, violence and threat in the father's language and his conduct are deeply disturbing.
The evidence was clear that X has suffered psychological harm as a result of the father's behaviour. In September 2017 X was diagnosed with anxiety and PTSD. During the second half of 2017, she suffered severe separation anxiety to the extent that she could not separate from the mother, even in appointments with her psychologist. The mother gave evidence that in June 2018 X suffered nightmares and expressed fear that father would find out where she lived. X says to mother, "he will get a ladder and try and kidnap me".
Earlier this year, X has commented to the mother X says to mother, "If [the father] gets me and Y, I will be hurt and never return to you". The mother gave evidence that X checks the doors are locked each night and comes into the bathroom whilst the mother is showering.
X was interviewed by Ms C. In her report at [72] - [73] Ms C records:
72. X was asked if she can remember her father, and said that she remembers a little bit. She recalled that Mr Marchesi “whacked me on the back of my head, out of nowhere”, and that he then started laughing. She described another memory of her father coming home and being cross with her mother, because Ms Dougal had not left the door open. X said that Mr Marchesi threw a glass of water at Ms Dougal and that he and his mother were laughing.
73. The Family Consultant asked X about various scenarios for spending time with Mr Marchesi, and in ways that tried to ensure that she would feel safe. X said that if the time were to be supervised, she would still be worried that Mr Marchesi might say or do something to hurt her. She said that she does not think much about the time she lived with her father and paternal family, and that she tries to think about other things. When asked, she said that she does not miss her paternal grandmother.
At [92] Ms C further records:
92. X reported some negative memories about her Father and paternal family, and her description seemed authentic rather than coached or made under pressure.
As pointed out Y was less than two at the time of separation. He was interviewed by Ms C. However, the interview was conducted by video call without much success and he was only aged 5 years, 4 months at the time. I accept Y has no real recollection of his father.
I generally accept the mother's evidence. As already pointed out, the father did not participate in the final hearing despite knowing it was taking place, and despite participating in interviews with Ms C. The father did not file any up to date evidence. I note the apparent denials by the father of abusive, aggressive, coercive or controlling behaviour recorded by Ms C. They are unsupported by any sworn evidence relied upon by the father. I accept the mother's version of events.
On the question of risk to the children is also helpful to cite at some length the opinions of Ms C concerning the presentation of the father at [79] - [88]:
79. A major consideration is whether the children would benefit from arrangements with Mr Marchesi in light of Ms Dougal’s claims of risk. Generally, it is considered to be in children’s best interests to have opportunities to know both their parents, as this has implications for their relationships, support networks and sense of identity. Sometimes, this is not in children’s best interests, such as when the risk of emotional and physical harm is considered to be high,
80. Mr Marchesi has persistently stated his wish to see X and Y and to resume relationships with them. It is understandable that Mr Marchesi would find the lack of contact with his children to be distressing, and that he would feel bereft. He seems to genuinely want to spend time with the children and to be involved in their lives. Mr Marchesi has persisted with his Application, which he initiated in 2017, and has stated his preparedness to start with any form of contact, including supervised time.
81. There are, however, some questions about Mr Marchesi’s account. It is difficult to imagine – even from his own telling of the relationship between him and Ms Dougal - that Mr Marchesi would have no inkling of Ms Dougal’s reported complaints about the time they lived together.
82. There also seemed to be some inconsistencies in Mr Marchesi’s account of his police history, whereby there do appear to be incidents of violence, contrary to what he originally told the Family Consultant. If Ms Dougal’s account and the police records are seen to be correct, Mr Marchesi’s history suggests that there may be a concerning pattern of intimidating and aggressive behaviour. It is also considered concerning if Mr Marchesi does not remember what would have been significant events, notwithstanding length of time elapsed since these events allegedly occurred.
83. Mr Marchesi’s attitude to the AVO is considered worrying in that he did not, initially, appear to acknowledge that there is a current AVO in place. The alleged breaches by Mr Marchesi are concerning even if they occurred accidentally, as he has claimed, as these incidents give an impression that Mr Marchesi has been careless about ensuring that he is seen to comply with the AVO conditions.
84. There also appeared to be inconsistencies in Mr Marchesi’s accounts of his and Ms Dougal’s financial arrangements. For example, it was difficult to understand Mr Marchesi’s confidence that Ms Dougal did not need money from him because she had an income (from a Centrelink benefit), when he also claims to have been unaware of her alleged income. It is hard to ignore an impression that Ms Dougal was financially dependent on Mr Marchesi for some periods, at least, during their relationship, and that he exercised authority in this area.
85. If the concerns outlined above are seen to be valid, this leads to a further consideration that Mr Marchesi’s Application may be, at least partly, due to him wanting to continue to pursue and discomfit Ms Dougal via Court proceedings in retaliation for her leaving him. It is well-known that Court proceedings are highly stressful for the parties (and the children) involved. Despite Mr Marchesi maintaining his Application since 2017, he does not seem to be prepared to adjust his behaviour, or to acknowledge the concerns raised by Ms Dougal, or take steps in the intervening years that may have addressed these concerns (or given him insight as to why the concerns were held, even if he does not agree).
86….
87. Regarding Ms Dougal’s concerns about alleged verbal and physical abuse, it is difficult to comment on these events, at this stage, and in light of Mr Marchesi’s denials. However, if Ms Dougal’s depiction of Mr Marchesi’s behaviour is considered valid, this would raise serious concerns that he has been coercive and controlling towards her and the children, and that the children may, therefore, be at risk if they spend time with him.
88. Mr Marchesi has claimed that Ms Dougal is deliberately trying to misrepresent his behaviour and its impact on her (and the children). If this is the case, then Ms Dougal would have devised an incredibly elaborate and long-term plan that has seriously inconvenienced her and the children, including her leaving the home in the middle of the night and moving home several times since. Such planning, if it occurred, would suggest that Ms Dougal is being pathologically and inexplicably hostile towards Mr Marchesi. However, Ms Dougal did not present as holding grudges towards Mr Marchesi, but rather as concerned about the children’s emotional and physical safety.
I am satisfied that the father engaged in abusive, and violent behaviour during the relationship, which constituted family violence, witnessed at times by both children. I am satisfied that he lacks insight into his behaviour. This lack of insight continued after separation in the form of stalking and intimidating conduct towards the mother which X witnessed. I am satisfied that it would cause X great anxiety to spend even supervised time with the father. I accept the mother's submission that post separation "X has made comments and has displayed behaviours that illustrate she is fearful of the father and that she identifies her father as a source of danger." I am satisfied the mother would suffer great anxiety if either or both children spent any time with the father. I am not satisfied that the father would not engage in aggressive or abusive behaviour if both children spent any time with him. I find there is an unacceptable risk of harm to the children from spending even unsupervised time with the father. I accept the submission of the ICL that "the state of the evidence as it currently stands favours the children not renewing, developing or maintaining a relationship with the Father."
I give weight to this consideration.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the "additional considerations" set out under s 60CC(3) of the Act separately to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. I will deal with these considerations seriatim.
(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;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 at [34]- [35] made clear in some cases, it may be right to accord the views expressed by a child something approaching a decisive weight, but they are but one consideration of a number to be taken into account in the overall assessment of a child's best interests and their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
X has expressed the view that she does not wish to spend any time with the father. Ms C recorded and commented on her views at [94] and [95]:
94. X presented as adamant about not spending time with Mr Marchesi, and as having concerns about his behaviour if she did so, under any circumstances. If X’s experiences with her father have been as negative as she and her mother described, it is reasonable that X would resist spending time with him now. Furthermore, it is likely that X would also be anxious about Y spending time with Mr Marchesi. If X’s alleged experiences with Mr Marchesi did not occur, it is apparent that X believes that they did, and that she is unambiguous in her rejection of him.
95. While some weight can be given to her expressed views, X is still quite young to determine the trajectory of her parental relationships, and to have the responsibility of doing so. She cannot be expected to fully comprehend the far-reaching consequences of these choices. Despite this, it is difficult to envisage X being comfortable about spending time with Mr Marchesi, unless Ms Dougal supports this occurring. If time does occur, X would also need support from an objective professional to help her manage a reintroduction to her father.
The mother and the ICL submitted the Court should give weight to X's views. I agree. Her age and more importantly her lived experience of the father described in the evidence satisfied me she has a real understanding of what is involved in her choice not to see the father.
I accept Y is too young and has had too little contact with the father to hold any relevant views.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
I have already discussed the children's relationship with the parents above under s 60CC(2)(a) and (b). I do not consider it necessary to add anything here.
(ii) other persons (including any grandparent or other relative of the child);
I am satisfied the children have a warm relationship with their maternal extended family. They appear to have almost no relationship with the paternal extended family.
(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;
The mother has been the sole de facto parent since July 2017. She is their primary carer, and provides for their support and maintenance. The father does not contribute financially to the welfare and maintenance of the children.
(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
As already pointed out, X herself would suffer anxiety from any separation from the mother.
In relation to Y, Ms C commented at [97]:
97. If time between Y (only) and Mr Marchesi occurs, this may be anxiety-provoking for Ms Dougal and, depending on the extent of her anxiety, could adversely impact her parenting. It would be difficult for Y to feel comfortable with Mr Marchesi if he is aware that his mother has serious misgivings about his (Y's) safety. Furthermore, it may be difficult for Y and X to each cope with having different levels of contact with their father and, thus, a different relationship. It is usually considered more beneficial for siblings to experience and develop parental relationships as part of their sibling group, and separate arrangements can cause confusion and rivalries.
I give weight to this consideration.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
The mother has demonstrated a clear capacity to parent the children in difficult circumstances. The evidence satisfies the father has demonstrated a very limited capacity to parent and has not done so in respect of the children since July 2017.
I take account of the mother's evidence that in November 2020 she admitted herself to mental health unit at F Hospital to seek assistance for nightmares and panic attacks. I accept she is presently engaged with a psychologist and psychiatrist. Nonetheless, I accept she continues to exhibit a sound capacity to parent.
However, her mental health fragilities and anxiety, in particular, raise for consideration the impact on her parenting capacity of any time spent by the children with the father.
The effect of orders on the primary carer's mental wellbeing where such effect may adversely impact on parenting capacity is a significant matter: (see R & C [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) and A v A (1998) FLC 92-800; 22 Fam LR 756 (“A v A)). The decision in A v A (supra) described the correct approach to weighing the impact on the primary carer's mental health in cases involving allegations of unacceptable risk at 84,996 at [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party's capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
This passage has been cited with approval many times (see, for example, Helbig & Rowe and Ors [2016] FamCAFC 117 at [212]).
The evidence of Ms C makes clear that if orders were made for the children to spend any time with the father this is likely to seriously undermine the mother's parenting capacity through heightened anxiety and mental destabilisation.
I give weight to this consideration.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
The mother has demonstrated an appropriate attitude to parenting. The father has not.
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).
(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;
The orders proposed by the mother and the ICL are least likely to lead to further litigation. Orders which confirm sole parental responsibility to the mother and no orders for time with the father will bring about a situation in which the scope for conflict or further family violence by the father is minimised.
PARENTAL RESPONSIBILITY
I have already referred to the presumption of equal shared parental responsibility set forth in s 61DA(1) of the Act. I have made a finding of family violence, and I am satisfied the presumption does not apply. I am further satisfied, on the basis of my discussion of the s 60CC(2) and (3) considerations that it is in the best interests of the children for sole parental responsibility to the allocated to the mother. Such an order will confirm the situation which already exists de facto.
LIVE WITH THE MOTHER
The evidence is clear that the children should continue to live with the mother.
TIME WITH THE FATHER
Ms C opined at [99]:
99. It may be difficult for the children to start spending time with Mr Marchesi, given that they have not seen him for nearly four years during significant periods of both X’s and Y’s childhoods. It is also unclear how such an arrangement would progress. If the meetings go well and the children seem happy about spending time with their father, it may be possible for more extensive arrangements to occur, such as in his home, with continued supervision at changeover. However, the information gathered for this Family Report suggests that it may be too risky for the children to spend time with Mr Marchesi, even in a supervised setting, and too stressful for Ms Dougal to manage.
I am satisfied no order should be made for time with the father. Ultimately, he did not seek any such order from the Court. The evidence discussed particularly under s 60CC(2)(b) and the evidence and recommendations of Ms C provide ample ground for the conclusion that even supervised time would not be in the best interests of the children.
I have given consideration to the possibility of orders which allowed for the children to have some contact with the extended paternal family. However, again the father made no such proposal and it is difficult to see how it could work without raising many of the same difficulties identified by Ms C in connection with supervised time with the father I note that at [71] in discussing X spending time with the paternal uncle, it is recorded:
71. There was further discussion and X said that her main worry about Mr G Marchesi is that he might tell her father that he has seen her, and then her father may come and "check-up". X said that she is also concerned that Mr G Marchesi might call her father, while he (Mr G Marchesi) is with her and Y. She said that she does not want this to happen because she is afraid that her father might hurt her.
I am not persuaded that any order should be made allowing the children to spend time with the extended paternal family.
CONCLUSION
For the reasons given, I am satisfied the orders set out at the commencement of the reasons should be made.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 2 July 2021
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