Massimo & Lain
[2024] FedCFamC1F 891
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Massimo & Lain [2024] FedCFamC1F 891
File number(s): BRC 3921 of 2021 Judgment of: CURRAN J Date of judgment: 10 December 2024 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where father did not participate in final hearing – Where father poses a risk to the safety of the child – Where child has vulnerabilities – Child’s views – Sole decision making authority to mother – Orders made for time as agreed, and in absence of agreement, no time and no communication – Injunctions Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4, 60CA, 60B, 60CC, 61C, 61D, 65Y, 68B, 68C, s122AA
Cases cited: Isles & Nelissen (2022) FLC 94-092 Division: Division 1 First Instance Number of paragraphs: 116 Date of hearing: 9-10 December 2024 Place: Sydney Counsel for the Applicant: Mr Reeves Solicitor for the Applicant: Phillip A Wilkins & Associates The Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates ORDERS
BRC 3921 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASSIMO
Applicant
AND: MR LAIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS THAT
1.All previous orders be and hereby are discharged.
Decision making:
2.The mother shall have sole decision-making responsibility for long term care, welfare and development of child X born 2012 (herein referred to as “the child”).
Live with:
3.The child shall live with the mother.
Communication:
4.The child shall spend time and communicate with the father, as agreed between the parties in writing, and in the absence of agreement in writing the child shall spend no time with the father and the child shall not communicate with the father.
5.Each parent notifies the other within 7 days prior to any change of a parent’s email address.
6.The parents shall communicate by way of the parenting app “talking with parents” and each shall remain subscribed and pay any fee associated with the subscription where necessary.
Time with the father:
7.In relation to Order 4, if the parties reach agreement for the child to spend time with the father the following shall apply:
(a)The child’s time with the father shall be supervised and such time shall occur at a professional contact centre as agreed and if not agreed as selected by the mother with any fees or payments due to any supervised contact centre be borne solely by the father.
(b)Prior to any such time occurring the father submit to any urinalysis testing for drugs requested by the mother and in which case the father will provide a copy of the test results to the mother within 24 hours of receiving the results, and a test will be deemed to be positive if it shows the presence of any illicit drug or any prescription only medication where the father is not able to produce evidence of having a current prescription for that medication from a registered medical practitioner.
Restraints:
8.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of Ms Massimo and X, the father is restrained from:-
(a)Harassing, molesting, intimidating or stalking the mother or any member of her household or family and that pursuant to section 68C this order is made for the personal protection of the mother and the child; and
(b)Removing or attempting to remove or taking or attempting to take possession of the child from any place where the child may be from time to time including but not limited to, their place of residence and/or education and/or at any sporting or extracurricular activities or otherwise from the mother’s care without the express written consent of the mother.
9.Pursuant to s 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the Father has breached any of the injunctions in Order 8, the police officer may arrest the Father without warrant and the Father may be brought before the registry of the Court or any other court exercising jurisdiction under the Family Law Act 1975 and it is noted that pursuant to s122AA of the Family Law Act 1975 a person who is authorised or directed by a provision of the Family Law Act 1975, to arrest another person may use such reasonable force as it is necessary to make the arrest or to prevent the escape of the person under the arrest.
10.The mother is authorised to provide a copy of these Orders to any school, or extracurricular activity in which the child is enrolled.
11.Each parent is restrained by injunction from denigrating or insulting the other parent or members of the other parent’s family in the presence or hearing of the child and will not allow any other person to denigrate the other parent in the presence or hearing of the child.
Information sharing:
12.This order be authority to the school(s) and attended by the child to provide all information and documents about the child to both parties, including but not limited to the child’s progress, newsletters, notices, reports, photographs, details of any school activities and invitations normally provided by the school to parents.
13.In the event of the child suffers from a medical emergency requiring medical attention, hospitalization or being involved in an accident, while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable and in any event within two (2) hours.
(b)The other parent is to be provided with the full details of the practitioner or medical facility at which the child attends as soon as practicable and in any event within two (2) hours.
(c)The medical practitioner or medical facility be advised that the other parent has access to the child’s medical records upon request.
14.This order be authority to each of the child's treating medical practitioners, dentists or allied health professionals, from time to time, to provide the other parent copies of medical reports and information as requested by the other parent from time to time in relation to the child.
Passports and travel:
15.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005, the child born 2012 is entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of the child's Australian Passport, or any other document required to allow the child to travel outside the Commonwealth of Australia, without the need to obtain the Father's consent.
16.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for each child upon application of the Mother alone in accordance with Order 15 above.
17.For the purposes of s 65Y(2)(b) of the Family Law Act 1975, the Mother is permitted to take or send the children (or either of them) outside the Commonwealth of Australia without the need for the Father's consent.
18.The mother shall furnish to the father not less than two (2) weeks prior to the time of travel, an accurate itinerary including the departure date and the date of return to the Commonwealth of Australia and the country or countries the Child and the travelling party will be travelling to, the dates on which the Child will arrive and depart each country.
19.The child’s name be lifted from the Airport Watch List at the commencement of the child’s travel with the mother.
Procedural:
20.All outstanding applications be dismissed.
21.Within 14 days of the date of these orders, the Independent Children’s Lawyer is to meet with the child for the purpose of explaining the effect of the orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Massimo & Lain has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
INTRODUCTION
These are parenting proceedings concerning the child, X (aged 12). The mother, Ms Massimo, commenced proceedings on 24 March 2021. The father, Mr Lain, has not participated in the final hearing.
The mother has another child from a subsequent relationship, Y born 2015. Y is X’s half-brother, who lives with the mother and X, and does not spend time with his father who is living overseas. The mother reports that the boys share a very close and loving relationship.
An independent children's lawyer (“ICL”) was appointed to act in the best interests of X.
The issues before the Court for determination relate to parenting arrangements.
As discussed in these reasons, I determine that it is in X’s best interests to make orders for the mother to have sole responsibility for decision-making in relation to the long-term care, welfare and development of X, for X to live with the mother, and for X to spend time and communicate with his father as agreed between the parties. I am satisfied that the restraints sought should also be made.
No application for costs was also made by the ICL.
PROCEDURAL HISTORY
The history of these proceedings is well known to the parties, and I will not repeat them here. X’s parents had separated after his birth. He had lived with his mother since birth, however, after the mother relocated to Sydney, proceedings were commenced by the father and orders were made that placed him in the care of his father. Ultimately, final orders were made partly by consent for X to live with his father in Brisbane.
On 24 March 2021, the mother commenced proceedings after she had been provided some information in relation to concerning circumstances about X’s care with his father.
On 22 April 2021, Judge Lapthorn made orders dismissed an application by the father for a recovery order. His Honour made orders that the child live with the mother, that she be permitted to live in Sydney with the child, and orders for communication between the child and the father.
On 10 May 2022, Judge Lapthorn made orders for the father to spend time with the child on the last Sunday of each month supervised in Sydney at B Contact Services.
On 16 August 2023, her Honour Judge Murdoch noted that:
D.Despite interim orders being made in May 2021 for the child to spend supervised time with the Father, such time has not occurred and the only time the child has spent with the Father has been by telephone or video link.
On 26 September 2023, Judge Murdoch made orders by consent on a without admissions basis for the father to undertake hair follicle drug testing. There was no evidence before me as to the results of this testing. The matter transferred from Division 2 to Division 1 on 6 December 2023.
On 12 February 2024, I made orders allocating the final hearing dates and making trial directions.
On 28 November 2024, the matter was listed for a compliance check. Following the notification of the listing being sent from chambers on 27 November 2024, the legal representative for the father purported to file a notice of ceasing to act, 12 days prior to the commencement of the final hearing.
The matter was listed on three consecutive business days requiring the father’s attendance. His then lawyer, Mr D, filed an affidavit on 2 December 2024 stating that the father advised him “I will not be proceeding” on Friday 29 November 2024 at 3.42pm. The father did not attend any of the listed mentions. The legal representatives for the father were ultimately granted leave to withdraw on 2 December 2024.
The father has taken no further part in the proceedings.
The matter was listed for final hearing commencing yesterday, 9 December 2024. The father was on notice of the listing and that it would proceed undefended if he did not attend the hearing. Both the mother’s solicitor and the ICL sent correspondence to the father at the email address contained on the notice of ceasing to act.
The father was telephoned from Court. He did not answer.
The ICL both telephoned and sent a text to the father. He did not reply.
The father was on notice of the orders sought by the ICL and the mother from the emails that had been sent to him.
The mother and the ICL sought orders by consent and sought that I proceed on an undefended basis. I was satisfied that it was appropriate to do so in accordance with the relevant Rules.
Because the proceedings are being conducted undefended as against the father it is not necessary to examine all the evidence in the detail which might be required if the proceedings were fully contested. However, I must independently of any agreement between the mother and the ICL satisfy myself that the orders I make are orders which are in the best interests of X. Accordingly, it is necessary to have regard to the evidence which is before the Court.
BRIEF FACTUAL BACKGROUND
The mother was born in 1978 and the father in 1974. They commenced their relationship in around 2011 and separated 14 July 2012,.
X has not spent time with the father since March 2024 when he had his last supervised contact visit. The mother reported that X was distressed following this visit and no further time has been arranged since.
X has not communicated with the father by telephone or other electronic means for some time, which means the last communication was in or around mid-2024. The mother said she encouraged the child to communicate with his father but that he has said he does not want to.
X has particular vulnerabilities. These are set out in the report of Dr E, paediatrician and neonatologist. Dr E reports that:
[X] has had some recent psychological assessments which has made his diagnosis clear to me. We are dealing with the following issues:
Mild Intellectual Disability (DSM […])
Attention Deficit Disorder […]
PTSD – Attachment Disorder
It is the mother's evidence that she has significant concerns that X had suffered neglect in the care of the father, that she believed the father was then using illicit drugs, and that the child was at risk of emotional and physical harm in the father’s care.
Her evidence was corroborated by the evidence the two witnesses she relied on, Ms C and Mr F. Both observed very and reported in their affidavits, concerning neglect, that X was living in squalid living conditions, and that he was rarely attending school. Ms C, the father’s previous landlord, in particular contacted the department and police as she was concerned as to the conditions in which X was living and the neglect that she observed.
Mr F provided evidence of observations as to the state of the environment that X was living in and the care he was receiving.
MATERIAL RELIED UPON
Applicant mother
The mother relied upon the following documents:
(a)Amended Initiating Application filed 1 December 2023;
(b)Her affidavit filed 1 December 2023;
(c)Her updating affidavit filed 8 December 2024;
(d)Affidavit of Ms C filed 18 March 2024;
(e)Affidavit of Mr F filed 24 March 2021;
(f)Family report of Ms G dated 28 April 2022;
(g)Single expert report of Ms H dated 9 December 2022;
(h)Case Outline Document filed 2 December 2024; and
(i)Exhibits tendered during the hearing.
Respondent father
The father did not attend the hearing. He had previously filed an Amended Response on 23 October 2023, and an affidavit on 14 February 2024 but had not filed any updating evidence. He did not participate.
The father did not engage in the proceedings despite numerous listings which were made in order to give him the opportunity to participate once his solicitor sought to withdraw. As stated previously, he was contacted by telephone, text message and email on the morning the hearing commenced. He failed to respond.
After the lunch adjournment yesterday, the mother’s counsel advised the court that his instructing solicitor had at that time, being the lunch time adjournment, become aware of an email sent by the father on Sunday 8 December 2024 at 9.49pm, the night prior to the commencement of the final hearing. That email responded to the email serving the mother’s updating affidavit that had been sent at 7.10pm that same day. It was unclear why this communication was not seen by the mother’s solicitor until the lunch adjournment on the first day of trial. That email was accepted into evidence and became Exhibit 12.
ICL
The ICL relied upon the following documents:
(a)Family report of Ms G dated 28 April 2022;
(b)Single expert report of Ms H dated 9 December 2022;
(c)Case Outline Document filed 4 December 2024;and
(d)Exhibits tendered during the hearing.
ORDERS SOUGHT
Inter alia, the mother and the ICL sought the following orders:
(a)The discharge of previous orders;
(b)That the mother have sole decision making responsibility for the children;
(c)That the children live with the mother;
(d)That the children shall spend time and communicate with the father at the “sole discretion of the mother”;
(e)Orders in relation to travel; and
(f)Orders in relation to non-denigration and restraints, including s 68B injunctions.
The ICL and the mother sought injunctions under section 68B of the Family Law Act 1975 (Cth) (“the Act”). This injunction would restrain the father from “harassing, molesting, intimidating or stalking the mother or any member of her household or family”. These orders would further restrain “from removing the child from any school, extracurricular activity or otherwise from the mother’s care without the express written consent of the mother”.
FAMILY REPORT
A family report was prepared by a Family Consultant, Ms G (“the family consultant”) on 28 April 2022.
The report was received into evidence and was unchallenged. I have read and considered the report and give her opinion weight, although I note that the report at the time of trial had been prepared more than two years prior and that no party sought any updating report.
The family consultant observed at [77] that:
[the father] appeared unable to reflect on the possible impacts on [X] of the kind of neglect that [Ms C] had described in her affidavits. He alleged that both [Ms C] and … [Mr F], who had also provided two affidavits, had plotted to take revenge on him because he would not pay the high rent they tried to charge him. He denied that any of their affidavits about him were true.
The family consultant broadly recommended that:
(a)The parents equal shared parental responsibility.
(b)The child live with the mother.
(c)The child spend time with his father professionally supervised each month.
(d)The father to undertake further hair follicle testing and receives a negative result before unsupervised time commences.
(e)Provided a negative drug test had been obtained, that time commence in Brisbane supervised by an agreed friend or relative.
(f)The father provides medical reports.
(g)Provided there is no significant risk to the child identified by psychiatric or psychological assessment or ongoing drug use, the child spend time with the father on school holidays such as daytimes only.
(h)The unsupervised overnight time or time at the father’s home does not occur until the father provides evidence of his lease.
(i)Both parties work closely with the child’s treating and supporting professionals.
(j)The child have video communication with the father each week on two evenings.
SINGLE EXPERT REPORT
A report was obtained by Ms H, Forensic Psychologist (“the single expert”), on 9 December 2022. That report was received into evidence. I have considered that report and the opinions expressed. That report focusses largely on the safety of X in the father’s care arising from her psychological assessment of him.
The risks the child has in the father's care, as identified by the single expert in her report dated 9 December 2022 were summarised accurately by the ICL in the case outline. The summary is accurate, and I adopt it as a convenient summary for the purpose of these reasons. I have considered and accept the opinion expressed by the single expert.
The issues identified by her relevant to the father were: Substance Abuse Issues; Mental Health Issues; Personality Disordered Traits; Work History and Financial Instability; Lack of Social Support; a tendency to Deceptiveness; and a Lack of Transparency.
The father maintained his denial in respect of substance abuse to both the family consultant and the single expert. However, despite his denials there is a range of evidence supporting the finding on the balance of probabilities that the father has a history of substance abuse. The observations of the mother’s witnesses, being the father’s landlords, the history of criminal charges, and the absence of any recent drug test results, all support a finding that the father has had a history of substance abuse in the past. He had provided no evidence in relation to any treatments and supports he has engaged in, notwithstanding those issues being identified clearly in the reports.
The single expert opined that the father’s substance abuse has had a detrimental impact on his parenting, including neglecting the child’s care, and living in unsanitary conditions. The child has been neglected educationally and has had multiple health issues which were not adequately addressed, including his incontinence.
The father maintained his denial in respect of suffering from any mental health issues to both the family consultant and the single expert. However, despite his denials there is a range of evidence supporting the finding on the balance of probabilities, which I make, that the father has a history of depressive symptoms and has been on antidepressant medication for almost 20 years. The father’s evasive and guarded presentation about his mental health history raised safety concerns to the single expert about his ability to engage with appropriate supports. I note and give weight to that opinion.
This is of particular concern as the single expert opined, and I accept, that the father exhibits personality disordered traits, including being insincere, egocentric, and exploitative. The single expert opined that these traits may contribute to him failing to recognise or prioritise the needs of others, including his son, and may impact his parenting style and capacities. Whilst he does not engage with any supports to address his substance abuse issues or any mental health issues, this poses a risk to the child’s safety.
The single expert observed that the father has demonstrated a pattern of being deceptive and providing inconsistent information, which raises concerns about his reliability and trustworthiness as a caregiver.
The father chose not to participate in the proceedings. I note the opinion of the single expert that he demonstrated a pattern of being deceptive and providing inconsistent information, which would become relevant to the testing of any evidence. It was unable to be so tested.
Both the father and the mother have experienced financial difficulties, which may contribute to instability in lifestyle. The mother’s financial difficulties followed an accident, after which she could no longer pay for flights for X to spend time with his father
The mother has given evidence, which I accept, about the social, family and professional supports he has. She also gave evidence that she is shortly to return to work after having surgery following an accident.
There is no updated evidence in respect of the father’s circumstances, where he lives, his employment, his current social, family or professional supports, any endeavours he has made to address the issues identified by both of the experts.
THE FATHER’S CONDUCT
The father sent an email to the mother’s solicitor at 9.49pm Sunday 8 December 2024, the day before the final hearing. It was not seen by the mother’s solicitor until lunch time on the first day of the hearing, 9 December 2024.
It was difficult to understand in the way it was framed and read:
I will not be able to attend the court proceedings due to health reasons which all medical records have been forwarded the stress anxiety being traumatised especially from my last visit with [X] I hadn’t seen him in 2 Christmas’s I had a iPhone 11 $590. Bluetooth speaker $45 stand for phone $55 [Ms Massimo] told supervisor that it was to expensive [X] had to give them back. In her statement [Ms Massimo] is to have [X] call me on said dates by phone I her phone is always off so there has been no contact not I to contact otherwise I would but once again phones always off. I would never have [X] do anything that he would not want to do. [X] would always get in trouble if on our visits report had said anything positive like I love you dad but still we got through it with all my visits bar the last one perfect well as well as they could be under current conditions. [X] would never speak out as he fears his mum and her reprimands. As to making him call me and say no to see him contact him whilst hearing prompting in the back ground. I now have had multiple [medical episodes] wearing a [medical aid] to walk [medical devices] have been fitted So my health isn’t its best regardless of what the outcome of this process like I’ve said [Ms Massimo] won’t follow it she will just do as she always has ignores it all and nothing gets done about it I bet I had done a fraction of what she is making [X] endure swift action would be taken I love my son with all my heart I pray that when he is old enough he will contact me on his own free will as my health won’t take anymore an I want tell him I love him and see him again. But with [Ms Massimo’s] way impossible way and knowing nothing comes of it for her actions as the trauma from what [Ms Massimo] has made [X] say and and not being able to do anything about it either just like this process which has failed him. Facts also [Ms Massimo’s] brother is doing […] years for [drug offences] etc FACT there photo with him blotted out in case file I have the file I was worried someone could be upset and take it out on him as we used to stay with him in Brisbane. That’s why [Ms Massimo] done a runner against courts suggestion originally the day after her brother got taken she distanced herself from her involvement. [Ms Massimo] is the one who was to have [X] contact me COURT ORDER. But they don’t obviously apply to her. I will not be attending thank you for ..
I make the following observations. Firstly, there was no application for an adjournment based on the alleged health issues identified in the email, nor were any of the medical records provided to either the ICL or the solicitor for the mother. They did not form any part of any evidence filed by the father. He was represented until the week prior to the trial, was aware of the listings that had occurred and made no attempt to engage in any of the listings. Nor did he make an application for an adjournment. Indeed, the evidence from his previous solicitor was that he “will not be proceeding”, presumably with the final hearing of the matter.
Secondly, as observed by the single expert, the father has, in the past, made allegations but failed to provide evidence to support his contentions. The examples identified in the single expert report are at [45]-[47], [49], [60], [62], [67] and [89] illustrate such conduct.
The father included in his email that “I now have had multiple [medical episodes] wearing a [medical aid] to walk [medical devices] have been fitted.” Again, as I say, he provided no medical evidence of his claims, and did not link these to any applications for an adjournment. I give his assertions no weight.
Thirdly, while he was legally represented, the parties were ordered to file any relevant updating material on or before 4 November 2024. The father did not file any such updating material. The the father makes reference to the mother behaving in a way where she had switched her telephone off to interfere with communication, and made certain allegations in relation to the mother’s brother “doing […] years for [drug offences]”. None of this is in evidence before me. I give no weight to it.
Finally, on one reading, the father appears to be communicating that he is not seeking any orders. This is consistent with the advice he has given to his solicitor that he “will not be proceeding”. He says “I love my son with all my heart I pray that when he is old enough he will contact me on his own free will as my health won’t take anymore and I want tell him I love him and see him again”.
I do not read this email as any form of consent to the mother’s orders, but I note it is consistent with the mother’s evidence about her conversation with the father on the Wednesday after X’s birthday. The mother said his response was “he has my number he can contact me when he’s ready”. The comment in the email seems to be of a similar vein and is consistent with his instructions to his lawyer that he will not be proceeding.
Notwithstanding all of these comments, I give little weight to the email. It is not in a proper form, it was not tested, and it did not appear to link to any particular application being made.
THE LEGAL PRINCIPLES TO BE APPLIED
The principles governing the determination of parenting applications are set out in Part VII of the Act. In section 60B of the Act, the objects are stated to be as follows:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that, in determining an application for parenting orders the court is to regard the best interests of the children as the paramount consideration. Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child, those being:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
SECTION 60CC(2) FACTORS
s 60CC(2)(a) – What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child?
The mother alleges that the relationship between the parties broke down due a number of factors, including the father’s use of dangerous drugs. She says the father would yell at her, tell her she is crazy, and accused her of yelling in circumstances where she was quiet. She says he was “unhinged, erratic, wired and he would throw things around and then sleep for hours on end.”
The mother alleges that the child suffered from severe neglect while in the care of the father, which resulted in significant absenteeism from school and falling behind educationally, malnutrition, and reversion to nappies. The mother attributes the father’s issues to his drug abuse. The mother raised concerns that the behaviour of the father is consistent with ongoing drug use and potentially undiagnosed mental health issues.
The mother’s concerns were shared by the single expert who opined that “Based on the available evidence, the issues that appear to have the most profound impact on [the father’s] mental health stability and parenting are his substance abuse issues.” The single expert further opined that “There was evidence of [the father] possessing personality disordered traits. These traits may contribute to him being egocentric and failing to recognise, be sensitive to, or prioritise the emotional or practical needs of others.” The single expert stated that “aspects of his mental health contribute to problems with insight.” She further, in her report, identified safety concerns for X.
The mother contended that the father's unpredictable behaviour and his neglect compromised X’s psychological and physical safety.
The mother’s concerns as to the safety concerns for X were corroborated by the two experts who also expressed concerns. I accept the reports and note the contents. They were further corroborated by the two independent witnesses who separately gave evidence, I accept their evidence in respect of the conditions in which X was living. Further, X has reported to his mother his distress and worry about returning to stay with his father saying “you don’t know what it was like.” This further supports the finding that I make that X experienced neglect and significant safety issues whilst in the care of his father.
The assessment of risk is a predictive exercise and is not required to be proven on the balance of probabilities per Isles & Nelissen (2022) FLC 94-092. Given the evidence which I accept as to the past conduct of the father and the exposure of X to physical and psychological harm, I am satisfied that the risk is likely to exist. I make this finding as there is no evidence from the father as to any supports, change of circumstances, or any endeavours he has taken to address the identified issues contained in the single expert report, and despite orders to obtain hair follicle testing made on 26 September 2023, no results have been provided.
In the absence of any evidence to the contrary I am satisfied that there continues to exist an unacceptable risk to exist to the safety of X if he were to spend time or communicate with his father.
s 60CC(2)(b) – Any views expressed by the child
The mother gave oral evidence of the child expressing strong and consistent views to her about his wish to have no time with his father, arising from a number of concerns including his fear that his father would take him back to Queensland. She said he would say “you don’t know what it was like” and become distressed and cry, including when she would ask him to speak to his father by telephone.
The mother gave oral evidence that she told the father that X did not want to talk to or spend time with his father, and that the father said “he has my number and can contact me.”
The family consultant reported at [96] and [111] that at the time of the interviews in April 2022, X said he wished to see his father, but not stay at his home. It was unclear from this report whether that meant at that time that he did not wish to spend any time at the father’s home or simply that he does not wish to live with the father.
Although it was reported that X’s supervised time with his father was valuable and rewarding to him, as evidenced by the supervisors’ reports from 2022, it is significant that this expression was almost three years ago, and that since that time, X has since expressed very clear wishes to the contrary.
The only supervision report in evidence from 2024 is the report from March 2024, now almost 9 months ago. The record is striking in the number of times and the various manners in which X expressed that he did not want to be at the visit with his father. For example, he clearly said he wanted to return to his mother and brother, he cried, he became angry, and he became frustrated on several occasions when his wishes were not met. It was recorded that he became frustrated and angry, and he expressed his frustration in various ways including not engaging, shrugging his shoulders, refusing to talk, and putting his hands over his face in frustration, and visible anger. He did not want to stay and go to a movie or eat. There was a brief period where the engagement was recorded as positive during the time the child and the father were in an entertainment venue. X articulated on a number of occasions that he did not “want to be there and that he just wanted his mum” He was observed to shrug his shoulders, drag his feet and “threw his head back and said he wanted to go.” He was described as stomping his feet, raising his voice, saying no one was listening to him, and crying.
The description of the visit, including the observations that the father sounded like he had been crying, left a clear impression of X using all the means he had to express his strong feelings of not wanting to be there.
The description of not being listened to and crying several times during the visit leaves for me, a clear sense that X has clarity about what he wanted, and he was able to express his feelings through emotion, body language, words and conduct (stomping, shrugging, disengaging).
Further information as to X’s strong wishes was available in the form of the ICL’s case outline which set out the child’s views. He articulated in December 2024 to his lawyer that he does not wish to communicate or spend time with his father. The ICL set out in her case outline:
•He is looking forward to Year 7 next year and very proud to have graduated Year 6.
• He does not want to spend time or communicate with his father stating:
o “I do not want to see him”
o “I do not like talking to him”
o “I want to stay with Mum”
•We spoke briefly about his experience of his father’s care, and he appeared reluctant to re-open that experience and those memories which appear to be quite painful. He stated “Dad scares me. I do not feel safe in his care – he leaves me alone and goes away”.
•He expressed worry that he may be forced to go back to the full-time care of his Father and appeared to take comfort when he was assured that neither parent nor the ICL was supportive of this. This made him smile with relief.
The ICL submitted that “[X] impressed as a mature, thoughtful and kind-hearted young man with some emotional intelligence. Some significant weight should be accorded to his live experience and the traumatic effect it has had upon him.”
The views he expressed to the supervisor in March 2024 have been maintained by X and are consistent with what he expressed to the ICL in December 2024. Given her observations as to his views, wishes and maturity, together with the consistency of his views over the past ten months, I give those views significant given weight.
The child is 12 and his views are important. I note that despite the family consultant reporting at [111] a slight lack of maturity, those observations were well over two years ago. I now attach weight to X’s view as observed by the supervisor in March 2024 and as recently reported to the ICL.
s 60CC(2)(c) – The developmental, psychological, emotional and cultural needs of the children
X had a period of health and educational disadvantage arising from the neglect he was exposed to. He is now engaging well at school as can be seen from his excellent Semester 1 2024 report, and he has medical supports including his paediatrician who reviews him every 6 months. His paediatrician is currently in the process of undertaking another review.
As discussed earlier, X has been diagnosed with a mild intellectual disability, ADD and PTSD Attachment disorder. He had suffered from continence issues, but this has been addressed. He has ongoing medical supports as arranged regularly by his mother.
X has Australian and Country J heritage. There was no evidence as to any connection with his father’s family. The evidence is that the father appears to have very few, if any social supports or family supports, other than one nephew. There was no evidence before me about X’s connection with any of the paternal side.
The mother gave evidence that she is also supported by her family including an aunt and uncle who live close by and a cousin who cared for both boys when the mother underwent surgery after her recent accident.
I am satisfied on the evidence that the mother is providing for his developmental, psychological, emotional and cultural needs, and there are no developmental concerns that are not being appropriately addressed with appropriate supports.
s 60CC(2)(d) – The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The mother was the primary carer of X and his brother other than during the period that X lived with his father. The mother has demonstrated the capacity to meet X’s developmental, psychological, emotional and cultural needs.
The mother alleges that the father attempted to manipulate X with promises of gifts at supervised visit, including popular games, and providing a new iPhone during the visit in March 2024. The mother’s evidence was that the supervision centre had a policy of not permitting gifts to be given and the mother considered it to be too expensive.
The father has not demonstrated capacity to care for X’s physical needs on his own, as illustrated by the evidence of the neglect, which I have accepted, that X suffered while in the father’s care. I have read and give weight to the evidence of both the mother’s witnesses in respect of their observations of X’s care when with the father.
Additionally, the father failed to demonstrate the self-control necessary to avoid emotional harm to X by, for example, crying with X about their separation, as illustrated in several of the supervision reports.
The mother gave evidence of other emotional pressure placed on X. She said that X had been told by the father when he was in the father’s care that the mother “kidnapped” him and that he spoke of killing himself if X was not with him. This kind of emotional pressure is entirely against X’s best interests.
These reports are consistent with [89] of the single expert report that the father’s psychological makeup could potentially expose X to psychological harm.
The means by which to protect X from the identified risk that I have referred to is by supervision. That is, should the parties ultimately agree to the father spending time with X, that time should be supervised so as to protect X from the identified physical and psychological risks.
The father filed no evidence to support his contention that he had completed a number of parenting courses. If the father is to be in a position to commence spending time in the future with X, the family consultant and single expert both observed that he would be assisted by undertaking such courses. It is possible such courses would improve the father’s capacity to provide for the child’s developmental, psychological, emotional and cultural needs. The mother in her case outline sought that sought that the father attend a course such as “Tuning into Kids”, as she has concerns that the father is not child-focussed.
I am not persuaded an order as sought is appropriate at this time. Doubtless if the father provided the mother with confirmation of his engagement with such a course, it may reassure her as to the father’s commitment to X and it may assist them to come to a resolution by agreement for the child to spend some time with X. It is entirely a matter for the father if he wishes to pursue any of the many recommendations made by the family consultant and the single expert. To date I have no evidence that he has pursued even one of the recommendations.
The orders that I make as proposed by the mother and the ICL provide for such time in circumstances of agreement.
s 60CC(2)(e) – The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
In relation to the issue of the benefit to the child of having a relationship with the father, the family consultant observed at [100]:
100.The single report of the professional supervisor provides some support for [X] having a formed and warm relationship with his father. If the Court were to find that [X] had been neglected in his father’s care, that would not necessarily mean he does not love his father or that there was no warmth or affection. It is well known that children who have been neglected or even abused can still love the parent who has abused.
The mother and ICL propose that there is time as agreed and that the time be supervised. They also proposed that the time be subject to the father provide a clear recent urinalysis.
The evidence supports a finding on the balance of probabilities that the father has engaged in illicit drug use in the past. I am satisfied that it is appropriate for the father to provide recent urinalysis tests before spending time if the parties reach agreement as to time being spent.
CONCLUSION
Parental responsibility
Section 61C of the Act deals with the concept of parental responsibility including, in particular, what parental responsibility is and who has parental responsibility. Section 61C of the Act sets out that each of the parents of a child who is not 18 have parental responsibility for a child.
Section 61D of the Act provides in subparagraph (3) that a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to a child may provide for joint or sole decision-making in relation to all or specified major long-term issues. In this case, the mother and the ICL seek final orders for sole decision making in respect of major long term issues to be held by the mother.
The parents do not have a cooperative parenting relationship. The mother has been well able to make these decisions on behalf of X at the time he has been in her care.
In view of all of the evidence and the father’s lack of engagement, it is appropriate to make an order that the mother shall have parental responsibility for the child and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Act affecting the child.
Where should the children live?
It was not in dispute that X should remain living with his mother and his brother. Orders that this continue are in his best interests. Their mother has been their primary caregiver, and the evidence indicates that she is very committed and capable. The issues of his incontinence, his educational deficit, and his psychological welfare, as well as any physical issues, have all been attended to by the mother. I am confident she will continue in this role.
What orders should be made about time and communication?
I am satisfied that it is appropriate to make an order for the father to communicate and spend time with X as agreed between the parents, and in the absence of agreement, that there should be an order for no time and no communication.
Restraints
The ICL and the mother sought section 68B injunctions in the terms set out above at [36].
The mother’s evidence was that the father had made inappropriate and suggestive comments to her at changeover and that she felt unsafe. Additionally, she states that the father had said to X that his mother had kidnapped him and that he would kill himself if X was not with him. In the supervision report of March 2024, the mother reported that she had seen the father, had felt unsafe and walked into a restaurant to call the supervisor to meet her.
Therefore, I am satisfied that the restraint on the father from harassing, molesting, intimidating or stalking the mother, or any member of her household or family, is appropriate.
The ICL and the mother sought a restraint on the father from removing the child from any school, extracurricular activities or otherwise from the mother’s care without the express written consent of the mother, because the child has expressed fear of the father attending the school in 2021 and recently expressed a worry that he would have to return to live with the father. The concerns of the child and the impact of his separation from his mother in the context of these proceedings has no doubt had an impact on the child. He has some identified vulnerabilities. The fear expressed and the security that such an order would likely give X is something that, in my view, is warranted in the circumstances of this case.
I acknowledge there is no evidence that the father has breached any the orders. His attendance in Sydney to collect X was in compliance with an order that was made. However, given there will be no time and no communication unless it is by agreement, and given the trauma that X has experienced, and his vulnerabilities, also noting his views as recently expressed to the ICL, I am satisfied that a restraint as sought is appropriate. An order restraining the father from “from removing the child from any school, extracurricular activity or otherwise from the mother’s care without the express written consent of the mother” is in X’s best interests. The application for an injunction is granted.
Orders for travel
The mother seeks orders to permit travel.
On balance, it is best to make such an order, even absent any evidence of a concrete travel plans. If I did not, the mother may have to return to court if the opportunity for X to travel arises. I will make the remainder of the orders sought because this family needs finality, and it is in the best interests of X for the proceedings to come to an end. The mother is of Country J background. It is appropriate for X to be able to travel to a country to which he has family connection, and otherwise it is appropriate that he has the opportunity to experience overseas travel.
Accordingly, I am satisfied that it is appropriate to make such an order.
Other orders
The balance of the orders sought by the mother and ICL are sensible and appropriate. They will be made as sought.
Having considered the totality of the evidence available and for the reasons given, I am satisfied that these orders sought by the mother and supported by the ICL are in the child's best interests.
I therefore make the orders as indicated.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 20 December 2024
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