MARVIL & MANCELL

[2020] FamCA 408

FAMILY COURT OF AUSTRALIA

MARVIL & MANCELL [2020] FamCA 408

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother and silent as to time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Ms Marvil

RESPONDENT: Mr Mancell

INDEPENDENT CHILDREN’S LAWYER: Ms Tuaileva

FILE NUMBER: PAC 4100 of 2013

DATE DELIVERED: 26 May 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 17 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Beutrum of I & J Law

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Soliman for Legal Aid NSW

Orders Made On 17 April 2020

1. Orders dated 9 February 2015 are discharged.

2. The Applicant mother Ms Marvil have sole parental responsibility for the child X born … 2007.

3. The child shall live with the mother.

4. Reasons for judgment to be published at a later date.

5. These proceedings be removed from the active pending cases list.

The Court Notes That

1. By reason of the circumstances of this matter, there is no application for costs by the Independent Children’s Lawyer.

It Is Further Ordered That

1. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marvil & Mancell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4100 of 2013

Ms Marvil

Applicant

And

Mr Mancell

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 3 October 2017 in relation to the child X (“the child”). The mother’s application was heard on an undefended basis on 17 April 2020.

2. The parties had previously been involved in parenting proceedings in relation to the child and the mother’s son Y from a previous relationship. That matter was finalised with orders made by consent on 9 February 2015 that relevantly provided that:

   a)the parties have equal shared parental responsibility in relation to X;

   b)that the child live with the mother

   c)that X spend time with the father each alternative weekend and half of each school holidays.

3. The mother initiated further proceedings over two years later in relation to X, asserting that the father had perpetrated verbal and physical abuse towards the child.

4. At the undefended hearing, the mother relied upon the following documents:

   a)her Initiating Application filed 3 October 2017;

   b)her affidavit filed 10 January 2020;

   c)the affidavit of Mr B (the maternal grandfather) filed 10 January 2020; and

   d)the affidavit of Ms F (the child’s paternal half-sister) filed 10 January 2020.

5. The mother sought orders as set out in her Initiating Application filed 3 October 2017 that:

   a)the orders of 15 February 2015 be discharged;

   b)the child X live with the mother; and

   c)that the mother have sole parental responsibility for the child.

6. The Independent Children’s Lawyer (“ICL”) supported the orders sought by the mother.

7. Orders were made by the Court on 17 April 2020 as sought by the mother and reasons were reserved.  These are those reasons. 

Context

1. The mother was 38 and the father 49 at the time of hearing.

2. The parties commenced cohabitation in 2002 and separated in September 2009.

3. The subject child of these proceedings was born in 2007 and is the only child of the parties’ relationship. 

4. The father also has two adult children namely Ms D and Ms F of a previous relationship. The adult child Ms F lives with the mother in these proceedings despite not being her biological child and gives evidence of her estranged relationship from the father.

5. The mother has four children from other relationships: an adult daughter Ms E who lives independently, and three children who form part of the mother’s household being Y (age 17), Z (age 5) and W (age 3).

6. As outlined above, the parties had agreed and orders were made by consent in February 2015 which provided that X live with the mother.

7. In April 2017 the parties entered into a Parenting Plan which provided that X live with the father and spend time with the mother.  Yet only a couple of months later in June 2017 X returned to live with the mother with whom he has lived since. The child has not seen the father since that time.

8. The mother commenced proceedings on 3 October 2017 in the Federal Circuit Court of Australia seeking sole parental responsibility and that the child X live with her.

The proceedings

1. On 7 November 2017 the father filed a Response to the mother’s parenting application seeking equal shared parental responsibility for the child, that the child lived with her mother and spend time with him each alternative weekend. 

2. On 8 November 2017 the proceedings were transferred from the Federal Circuit Court to this Court and it was ordered that the parties attend family dispute resolution and communicate with the child’s psychologist.

3. On 23 November 2017 the father filed an Amended Response seeking that the mother’s application be dismissed.

4. On 12 December 2017 the matter came before a registrar who made directions for the filing of documents as to the threshold Rice and Asplund [1978] FamCA 84 issue.

5. On 27 March 2018 the matter again came before a registrar who noted that the father conceded that there had been a significant change in circumstances subsequent to the final orders being made and no longer pressed for the Court to conduct a Rice and Asplund threshold hearing. Orders were also made that the parties attend upon a family consultant as part of the Child Responsive Program for the preparation of a Children and Parents Issue Assessment report (“CAPIA”).

6. On 29 May 2018 the parties attended upon a registrar and the matter was listed for a First Day Intake of a Less Adversarial Trial in light of the release of the CAPIA report to the parties on this date. The parties were also granted leave to file in chambers terms of settlement with respect to hair follicle testing by the parties.

7. On 6 June 2018 the matter came before a senior registrar for an interim hearing, however, given the father’s previous indication to a registrar that he did not wish to proceed with his interim application the father’s interim application was withdrawn and dismissed.

8. On 24 August 2018 orders were made by consent that the parties attend for hair follicle drug testing within 72 hours of the order being made and urinalysis testing upon the request of the ICL.  Orders were also made requiring the parties to attend upon a family consultant for the preparation of a family report.  The parties were also ordered to participate in mediation to be arranged by the ICL.

9. The Family Report was released to the parties on 27 June 2019.

10. The matter came back before the Court on 3 October 2019 following release of the Family Report.  On this date it was noted that the father had had no contact with the child since June 2017 and that the mother had no objection to the father engaging with the child’s school as to the child’s progress in education and, otherwise, that the father, should he so wish, engage with the child’s treating psychologist for the purposes of understanding the child’s present fears and wishes.  It was also noted that the father was presently engaged with his treating general practitioner in terms of ongoing certification for his disability pension and that the Court informed the father that having regard to the issues highlighted in the Family Report it would be appropriate for him to seek a referral from his general practitioner to a treating mental health practitioner being either a psychologist or psychiatrist for intervention as appropriate with the view to there being available at final hearing a report from that practitioner.  Trial directions were made to progress the matter to a final hearing.

11. On 23 January 2020 the matter came before a registrar for a compliance check and it was noted that the father had not complied with the trial directions.  It was also noted that the father’s solicitor had ceased to act for him on 21 January 2020 but informed the registrar that they were now acting for him again.

12. On 20 February 2020 the matter came before a registrar for another compliance check.  Again it was noted that the father had not complied with trial directions and there was no appearance by him or on his behalf. In these circumstances, the matter was listed for case management before the Court with a view to undefended hearing.

13. On 24 February 2020 the matter came before the Court for case management on which occasion there was no appearance by or on behalf of the father. It was noted that the father had still failed to comply with trial directions made in October 2019.  In these circumstances the matter was listed for undefended hearing and it was ordered that the ICL was to notify the father of the orders made as to undefended hearing by ordinary prepaid post to the father’s last known residential address and by email with such communication to inform him that in the event there was no appearance by him on the adjourned date the mother’s application would proceed to undefended hearing. 

14. On 17 April 2020 the matter came before the Court for undefended hearing and on this date there was no appearance by or a behalf of the father. In these circumstances orders were made as sought by the mother and reasons for judgment reserved.

Procedural Fairness

1. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

2. Further, rule 11.02(2)(c) of the Rules provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

3. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

4. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

5. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…

6. The predominant consideration in respect of the application is the best interests of the child. Given the history of the litigation, it was in the best interests of the child for the litigation to be brought to an end as soon as possible.

7. In circumstances where the father failed to attend on the last few occasions that the matter came before the Court and failed to comply with trial directions made several months prior, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

Child and Parents Issue Assessment

1. The parties attended upon a family consultant as part of the CAPIA on 15 May 2018 and a Child Responsive Memorandum was subsequently prepared.

2. At the time of the assessment the mother was married to and living with the father of her younger two children (Mr G).

3. The child was 10 years old at the time of the interview. The child reported feeling worried that his father might take him and that he might not let him see the mother again. The child also claimed that he is fearful of the father because “sometimes, he hit me” and went on to say “I was laughing and he said, ‘if you don’t stop, I’ll hit you’ and he did, with his hand and, with a ruler once, on the head”. He told the family consultant he had been hit by his father approximately three or four times.

4. The child told the family consultant that after a short time living with the father he wanted to return to living with the mother because the father continued to speak negatively about the mother and “wasn’t showing love” towards him.

5. The child claimed that when the father is in public he will “be nice” but when there are no adults observing he “be’s mean. He is not the exact same person, he is a different person”. The child reported that the father would become extremely angry for minor things, such as an occasion where the child accidentally broke a jug.

6. The father reported that there previously was an ADVO between he and a previous partner but denied perpetrating any violence.

7. Both parties made allegations of violence against the other. The mother claimed that the father had been physically violent to her on one occasion, punching her “in the jaw” for which she required medical attention. She also reported that the father had pushed or shoved her on several occasions and had been verbally and psychologically abusive to her.

8. The father made various assertions about the mother’s partner including that he drives past the father’s home and “taunts him” and had threatened to kill him on several occasions, including telling the child that he was going to “shoot him with a gun”.

9. Both parties acknowledged that they had previously misused substances but no longer did so. This was explored further in the Family Report.

10. The mother reported that following the making of Consent Orders in February 2015 there was a period of relative calm between the parties but that this deteriorated because of the father’s paranoid and controlling behaviour. She asserted that the child would become emotional at changeovers and said that the child had reported that ‘Dad makes me sad, he will be alone if I leave him”. She also asserted that the father would insist the child sleep in the same bed as him. She reported that the father was attempting to build a co-dependant relationship with the child by carrying him around like a baby, washing him and showering him despite being at an age where he was capable of doing these things alone.

11. The family consultant made recommendations that the matter be expedited, that a Family Report may assist and that the parties undergo hair follicle testing for illicit substances.

Family Report

1. On 28 March 2019 the parties attended upon a family consultant for the preparation of a Family Report. The child was also observed with Y, Z and W who all form part of the mother’s household. By the time of the Family Report the mother had separated from her former partner.

2. Consistent with what she had reported during the CAPIA the mother told the family consultant that the father had been controlling and physically and verbally aggressive towards her during the relationship.  She reported that there had been an occasion prior to separation where the father tried to “rip” her from the car and punched her in the jaw.  She also disclosed an incident where the father threw a full dish rack at her which smashed around her and another occasion where he threw a child sized motorised all-terrain vehicle at her, hitting her in the leg.

3. The father alleged that the mother had been verbally and physically aggressive towards him and again alleged that the mother’s previous partner had been threatening, verbally abusive and had engaged in stalking behaviour towards him. The father asserted that the mother’s relationship with her previous partner was characterised by family violence. He also asserted that the child had disclosed to him that the mother and her previous partner would undermine the child’s relationship with the paternal family and allegedly disclosed that he was afraid of being physically punished by the mother and her former partner.

4. The mother asserted that the father undermines the child’s emotional wellbeing and development by showering and toileting him and encouraging him to sleep in his bed. The father would encourage the child to lie about the mother and her previous partner and undermines the child’s relationship with the maternal family. She also described how the father would often carry the child out of the school grounds.

5. The mother reported that she had used methamphetamine on a couple of occasions in 2009 and 2010 and speed following the parties’ separation but denied any use of illicit substances following this.  She also asserted that the father had been investigated by police to manufacturing and supplying illicit substances.

6. The father reported that he is being treated and takes medication for depression.  He alleged that the mother had previously been hospitalised for drug induced psychosis prior to separation.

7. The mother reported to the family consultant an incident that occurred in June 2017 when the child decided that he no longer wished to live with the father.  The father called the child a “tough little cunt” and said that he was going to “knock his block off”.  The father telephoned the child multiple times yelling at him and threatening to sell his toys and belongings.  The mother reported the incident to police and requested that there be no charges issued but stated that she wanted the father to stop calling the child and to stop being abusive. The father is said to have called the police officer who assisted a “fucking pig”.

8. The mother alleges that the father has historically encouraged the child to lie to the police, the Department of Family and Community Services as they were then known and the Kids Helpline with a view of undermining the child’s relationship with the mother and maternal family.  The mother says that she observed the father to act in a similar manner while the relationship was intact with the child’s paternal half-sisters and their mother, stating that the father would not facilitate them having a relationship with their mother or their maternal half-brother.

9. The child was 11 years old at the time of the Family Report. The child was explained the limits of confidentiality of the Family Report and responded “I feel fine with Mum and Dad reading stuff.  He [the father] might realise what he has done, if he reads it”.  The child became tearful when talking about his reported experiences with the father. The child recounted the aforementioned telephone call that occurred between him and the father when he made the decision to live with the mother.  The child said he was shocked to hear the things the father had said and thought things would go back to “normal” living with the mother and spending alternate weekends with the father.

1. The child told the family consultant that the father used a “type of hypnotism” on him stating that “he made me feel sad. When he was driving me home, he would make me think that I was sad to go home. When I got home, I would just cry because I wanted to go back and see Dad”.

2. The child also alleged that the father “hit [him] over the head”. The child expressed fearfulness at resuming a relationship with the father and said that when the father found out the child had disclosed to the mother that he had made him call the Kid’s Helpline, the father became very angry. The child told the family consultant that the father had said that now he has “told everything, he [the father] is going to get a hundred times worse”.

3. The child also reported that the father spoke negatively of the mother and members of the maternal family including calling her a “slut”, “bitch” and saying things like “she is nothing to me”. The child also expressed sadness that the father “stopped caring” about Y and said “I thought I was taking all of his love away from Y”.

4. The child told the family consultant that the father said that the mother “pretends to be Aboriginal” and calls Aboriginal people “dumb arses”. The child became tearful when talking about the father’s response to Aboriginal people and culture.

5. The child was advised at the end of his interview that he was expected to spend time with the father as part of the Family Report assessment. The family consultant observed the child to become quite anxious, shrink into his chair and repeated “no” several times, saying he did not want to see the father. When the family consultant presented a range of supportive options to spending time with his father including having the family consultant remain in the room with them, the child remained adamant that he did not want to spend time with the father and launched into a detailed justification as to why he did not want to spend time with him including saying:

   I don’t want to see him or be near him. Even if you are there it doesn’t prove anything. He will be normal because that’s what he does in front of people but then it’s like a flick of switch in the dark, he changes. I just want to stay away. My life is better without him. I have been able to move on. I had to keep all his secrets in side of me. I don’t want to look at him. Everything, everything would change. I’m afraid that I will miss him. I am afraid I will miss him, he always made me miss him in some way, he would make me want to go to him in some way.

6. Given the child’s emotional distress and unwillingness to participate in observation, an observation between the father and child was not conducted.

7. The mother told the family consultant that the child displayed some behavioural difficulties during 2016 and she accessed the support of a school counsellor. The child had become aggressive towards her when she would not let the child live with the father.

8. The mother reported that a paediatrician had suggested that the child undergo testing to explore the possibility of him having autism. The mother said that the father was unwilling to contribute to the costs of this assessment and refused to provide his necessary consent to the child undergoing an assessment for autism. The child was diagnosed with Attention Deficit Hyperactivity Attention Disorder (‘ADHD”) in June 2017 and he is being treated with medication.

9. The mother reported that the child had experienced anxiety and she had previously accessed support from a psychologist. The child no longer requires therapeutic support as his anxiety appears to be primarily in relation to the father.

The mother’s evidence

1. The mother identifies a number of concerning features of the father’s parenting. Her evidence was consistent with what she had told the family consultants in the interviews for the CAPIA and Family Report and was largely a repetition of what she had already told the family consultants.

2. The mother describes her ongoing concern about the child for the most part sharing a bed with the father when in the father’s care. She also observed that the child would complain about feeling more tired at school and would struggle sleeping in the mother’s care because he would want to sleep with the mother. The mother had numerous conversations with the father about her concerns but the father was largely unresponsive to her requests.

3. The mother also describes how the child disclosed to her on several occasions how the father’s behaviour would make him feel sad before changeovers back into the mother’s care. The child described to her how the father and sometimes the paternal grandmother would become emotional before changeover and tell the child how much they would miss him and how they would feel sad which would have an emotional toll on the child.

4. The mother also recounts the child telling her that he had driven the father’s car and “done burnouts in the paddock” while sitting on the father’s lap. The child described to her that “he [the father] was doing the feet and I was steering the motor vehicle”.

5. In February 2017 the child disclosed to the mother that the father had organised for him to call the Kid’s Helpline to tell them that he missed the father and wanted to live with him. The child told the mother not to tell the father because he would get angry.

6. The child began to express that he wanted to live with the father and that the father had told him he could choose who he wanted to live with. The mother describes the child as becoming increasingly more hostile towards her. The mother decided that the current arrangement was not working and was affecting the child emotionally so permitted the child to go and live with the father as he wished.

7. In April 2017 the parties drew up a Parenting Plan which provided that the child would commence living with the father. While the child was in the father’s primary care the father often prevented communication between the mother and the child and on one occasion withheld the child from school on days when changeover into the mother’s care was meant to occur.

8. The child returned to living in the mother’s care on 2 June 2017 after the child indicated that he did not want to live with the father anymore and locked himself in the mother’s car.

9. On 5 and 6 June 2017 the mother tried to speak to the father regarding the child’s care and on both occasions the father spoke to the mother abusively including calling her an “evil bitch”. On 6 June 2017 the father also called the child and threatened him including calling him “a filthy lying little cunt”. The mother recorded the call and took it to show police who then called the father to speak to him about this. The father is said to have called the police officer a “fucking pig” and saying that he “can do whatever the fuck [he] want[s]”. The police officer told her to stop contact between the father and child for the child’s safety. Despite this the father called the mother repeatedly following this incident and on a number of such occasions spoke to the child in an abusive manner.

10. The father would prevent the child’s paternal half siblings from having a relationship with their mother and older brother and degraded the mother in the presence of the children.

The evidence of Ms F (the child’s paternal half-sister)

1. The child’s paternal half-sister describes how when she would spend time with her father, the mother in these proceedings would look after her and all the other children and “ran the household”. She describes how the father was “distant, hardly involved in family things” and how she feared talking to him as he often “lost his cool and would yell at me for interrupting him”. She describes telling the father how she was having trouble seeing the board at school and he refused to take her to get an eye test or would refuse to buy her necessary items for school. She describes how the mother bought her the clothes, toiletries and stationary and “treated me in the same loving way she treated her own children”.

2. The child’s paternal half-sister describes her estrangement from the father as starting to occur when the father and mother separated. The paternal half-sister remained in the mother’s household to the annoyance of the father who sent her a text message in words to the effect that he was disowning her and that she was not his daughter. She also describes an incident when she was pregnant where the father came to collect the child from the mother’s home and following a disagreement threatened her with a fist. Some weeks later, the father asked the paternal half-sister to undergo a DNA test as he asserted he had reason to believe she was not his daughter. The paternal half-sister complied and the results came back confirming the father’s parentage. The paternal half-sister has not spoken to the father since this date.

3. The child’s paternal half-sister describes how the child’s complaints about the father denigrating the mother and maternal family, feeling as if he cannot talk about the mother or his maternal siblings in the father’s care and the father making comments that his maternal siblings were not his “real sisters and brother” resonated with her as she experienced the same during her childhood in the father’s care.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

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

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

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

   b)…

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

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In relation to parental responsibility, the family consultant was of the view:

   The current co-parenting relationship is poor, there is limited communication between the parents and there seems to be high levels of mistrust. They each assert that the uncooperative co-parenting relationship is the fault of the other, and it appears that this poor co-parenting dynamic has been longstanding.

9. Further, the family consultant opined:

   There is no functional co-parenting relationship. Each parent reports feeling unsupported by the other and there appears to be longstanding issues of mistrust that may impact their capacity to manage decision making for X in a timely fashion without protracted levels of conflict. Ongoing exposure to parental conflict may place X at risk of adverse developmental outcomes, particularly if they perceive the conflict is about them, including mental health problems that manifest as emotional and/or behavioural difficulties, problems in peer and other relationships, poorer academic performance, and they may develop maladaptive conflict resolution strategies.

10. The family consultant recommended that unless other evidence before the Court suggested otherwise, the mother should have sole parental responsibility as a means of protecting the child from parental conflict.

11. In the present case the presumption as to parental responsibility does not apply where there are reasonable grounds to believe the father has engaged in abuse of the child both physically and emotionally. Further, given the high levels of parental conflict to which the child has been previously exposed, it would not in the best interests of the child for the parents to share parental responsibility.

12. Attaching weight to the mother’s evidence of the difficulties in exercising joint parental responsibility with the father in the past and the view of the family consultant that the mother should hold sole parental responsibility, the Court considers it is in the child’s best interests that the mother have sole parental responsibility for the child.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

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

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

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

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

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

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

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

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

3. The mother has been the primary carer for the child for most of his life but for the brief period where the child lived with the father. The orders sought by the mother and supported by the ICL will see this arrangement continue.

4. Following separation the child enjoyed a meaningful relationship with the father up until June 2017 when the mother ceased contact between the child and the father in circumstances discussed above. Given the significant period of time that has elapsed since the cessation of contact being over two years, any resumption of time would require a careful reintroduction of time to rebuild the child’s relationship with the father. The mother submits that there is no benefit to the child maintaining any relationship with the father due to his abusive behaviour towards the child. Given the lack of evidence before the Court that would support the making of orders to rebuild the child’s relationship with the father by reason of the father’s disengagement, the Court is satisfied that orders should be made that the child remain in the mother’s primary care and that the orders be silent as to time with the father.

Section 60CC(2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. Both parties alleged that the other perpetrated family violence during the relationship. The family consultant opined that if the Court determined either account had veracity it may mean that party has engaged in coercive controlling family violence. The family consultant opined:

   Coercive controlling family violence can have a negative effect on the victim’s parents’ mental health, affect their parenting capacity, and may negatively impact the co-parenting relationship. It is also associated with deficits in the perpetrating parent’s including inappropriate use of authority and/or coercive discipline methods, a limited capacity to separate a child’s need from the perpetrators own needs and a limited capacity to separate a child’s need from the perpetrator’s own needs and a limited capacity to tolerate age appropriate behaviour. Children exposed to coercive controlling family violence are at risk of adverse impacts on their physical safety and psychological wellbeing.

3. The father’s disengagement in the proceedings means there is an absence of evidence to support his assertions to the family consultant that the mother has perpetrated family violence.

4. The mother and child’s uncontested evidence is that the father has behaved in a manner towards the child that was abusive and coercive. The evidence of the child’s paternal half-sister of her childhood experience mirrors the evidence of the mother and child of their experience.

5. The Court is readily satisfied that the father has historically perpetrated physical and emotional abuse towards the child.

6. The family consultant was of the view that it was concerning that the father appeared to minimalise his alleged behaviour towards the child at the time the child indicated he no longer wanted to live with him. She opined that if this was indicative of how the father generally manages interactions with the child during times of stress and conflict then this was likely to have detrimental effect on the child’s emotional development.

7. The family consultant also opined:

   In order for the X (sic) to be able to enjoy a relationship with each parent, this would, ideally, require high levels if cooperation, respect and trust between the parents. Children who experience parental conflict are [at] a greater risk of developing emotional and/or  behavioural difficulties or exacerbate pre-existing mental health difficulties, and impact their relationships with one or both parents, and  can also negatively affect their own ability to resolve conflict in their current and future relationships in a pro social manner. It would appear that X is very much aware that the poor co-parenting relationship and parental conflict may be about him. Therefore, given the apparent difficulties in the co-parenting relationship, along with the other identified risks, it may be the least detrimental alternative for Orders to be made for X to spend no time with [the father].

8. The father’s perpetration of physical and emotional abuse coupled with the high levels of parental conflict support the making of orders that the child live with the mother and be silent as to time with the father.

9. Some concern as to both parties’ drug use was identified in the Child Responsive Memorandum and the Family Report. As a result, both parties were ordered to undergo drug testing. The mother did undergo hair follicle testing in August 2018 and urinalysis testing on 4 and 5 October 2018 which produced negative results on these occasions. The father told the family consultant that he was unable to afford drug testing and did not comply with the orders for drug testing. In these circumstances the Court cannot be satisfied that the father’s drug use is not ongoing and that his potential drug use will not pose a risk of harm to the child.

The additional considerations: s 60CC(3)

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

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

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

   i)Each of the child's parents; and

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

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

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

   ii)To spend time with the child; and

   iii)To communicate with the child;

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

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

   i)Either of his or her parents; or

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

   with whom he or she has been living;

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

   f)The capacity of:

   i)Each of the child's parents; and

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

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

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

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

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

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

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

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

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

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

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

   v)Any other relevant matter;

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

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

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

2. The child described to the family consultant a close and positive relationship with the mother and the family consultant observed the same. The child also described positive relationships with his maternal siblings. The family consultant opined that the child appeared to have established meaningful relationships with the mother and maternal siblings.

3. The family consultant was of the view that the child appeared strongly rejecting of a relationship with the father and was of the view that it would appear that the child is “unable to tolerate the possibility of a relationship with [the father]”. The family consultant was of the view that given the child’s apparent emotional distress and unwillingness to spend time with the father, it is recommended that the Court give little determinative weight to his stated views. However, given the consistency of evidence given by the mother, the child and the child’s paternal half-sister, weight is attached to the child’s attitude to a relationship with the father.

4. The child has not had a relationship with the father for over two years. Prior to his estrangement from the father, the father encouraged an unhealthy and co-dependant relationship between him and the child which was not positive for the child’s development.

5. Although the father was previously engaged in the proceedings, his recent disengagement is a salient feature in this dispute. Even during his engagement at the time of the interview for the Family Report the father did not present a viable proposal as to the child’s care, and in those circumstances the family consultant recommended the child live with the mother where he will continue to derive a benefit by primarily living with his siblings. Further, by completely disengaging from the proceedings, the father can be taken to have forfeited his interest in participating in the child’s life in all respects.

6. The child has significant emotional and behavioural difficulties. The child has been diagnosed with Attention Deficit Hyperactivity Disorder and has experienced anxiety through his childhood. The family consultant opined:

   Children with emotional and behavioural difficulties, when not appropriately identified and treated, may be at risk of the development of poor emotional regulation and skills, difficulties in relationships with peers and others, and difficulties in their academic performance.

7. In light of the mother’s reports to the family consultant as to the support that the child has been receiving for his mental health and behavioural needs, it would seem that the mother has been able to adequately support the child’s emotional and developmental needs. In contrast, the father has demonstrated an unwillingness and resistance to responding to the child’s health needs when the mother has previously requested his consent for the child to undergo certain medical testing.

8. The mother and child’s disclosures to the family consultant about the father encouraging the child to lie to authorities about the mother’s family is worrying and raises concern about the father’s parenting capacity. The family consultant opined:

   [The father] engaging in such behaviour may inhibit X’s ability to learn appropriate pro social behaviour and it may be impair X’s capacity to distinguish reality. Sense confusion. This type of behaviour may be viewed as controlling and may have undermined X’s relationship with [the mother] and the maternal family.

9. In relation to the allegations that the father has engaged in behaviours that have undermined the child’s overall development, the family consultant opined that if the Court determines these difficulties have been long standing, and that the father has been unable to take on information about the child’s developmental needs, the Court may need to consider whether ongoing interactions between the child and father will be developmentally harmful. Given the father’s disengagement in the proceedings, the mother’s evidence as to these behaviours is accepted and again raises concern as to the father’s parenting capacity.

10. The mother told the family consultant that she identifies as an Aboriginal woman from the G People and has established links to the H People and is recognised within that community as an Aboriginal person.  The mother when she relocated to K Region she contacted her local Aboriginal Land Council and has been included in community events and activities.  The child and his half-brother have attended men’s and boy’s camps organised by the Land Council.  The father told the family consultant that the mother and child’s identification as Aboriginal was “all a sham”.

11. The family consultant opined that the child’s access to Aboriginal specific activities and supports within his local community, and school, provides him with a sense of belonging and opportunity to explore this important aspect of his identity. The family consultant was of the view that should the Court accept the mother’s account of her and the child’s aboriginality and that it would seem likely that the mother is able to recognise and support the child’s desire to connect with his Aboriginal identity. She further opined that if the Court accepts the child’s aboriginality, it would seem the father presented as lacking a robust understanding of the meaning of aboriginality for both the child and the mother. As opined by the family consultant, it would appear that the father lacks the capacity to reflect on the child’s experience and modify his behaviour to best support the child’s current and future needs.

12. It is clear that the father would be unable and likely unwilling to engage with his Aboriginal culture as he himself conceded to the family consultant that he did not know how he would promote the child’s cultural identity.

13. Both parties make allegations of family violence against the other as has been explored above. There have been no Apprehended Domestic Violence Orders (“ADVO”) made between the parties.

14. The orders sought by the mother would be the least likely to lead to the institution of further proceedings given the father’s disengagement.

15. A consideration of the s 60CC factors, the background of this matter and the reality that the child now has a limited relation with the father supports the making of orders as sought by the mother as being in the best interests of the child. Such orders will allow the mother to parent the child without exposing the child to further parental conflict and will prevent the child from exposure to the risks posed by the father.

16. Orders will be made accordingly.

I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 May 2020.

Associate: 

Date:  26 May 2020