Merton & Manley
[2020] FamCA 1084
•18 December 2020
FAMILY COURT OF AUSTRALIA
Merton & Manley [2020] FamCA 1084
File number(s): PAC 2474 of 2018 Judgment of: FOSTER J Date of judgment: 18 December 2020 Catchwords: FAMILY LAW – CHILDREN – UNDEFENDED PARENTING – Where application for final parenting orders by mother and step-father – Where father of child disengaged from the proceedings – Where consideration of applicable principles – Where orders made in best interests of the child.
FAMILY LAW – ADOPTION – Leave to commence proceedings – Step-parent adoption – Joint application by mother and step-father pursuant to s 60G of the Family Law Act 1975 (Cth) seeking leave to commence adoption proceedings – Consideration of the child’s best interests – Orders made as sought by the mother and step-father.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60G, 61DA, 65DAA, 69ZN
Family Law Rules 2004 rr 11.02, 16.07
Cases cited: 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
Number of paragraphs: 92 Date of hearing: 18 November 2020 Place: Parramatta Solicitor for the Applicants: Marsdens Law Group Respondent - self‑represented litigant: The Respondent did not attend Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 2474 of 2018 BETWEEN: MS MERTON
First Applicant
MR MERTON
Second Applicant
AND: MR MANLEY
Respondent
MS DODSON
Independent Children’s Lawyer
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
18 NOVEMBER 2020
THE COURT ORDERS THAT:
1.That Ms Merton and Mr Merton shall have equal shared parental responsibility for the child, X (dob: … 2008).
2.That the child, X (dob: … 2008), live with the Applicant Mother and Applicant Step Father.
3.That the child shall spend time with the Respondent Father at such times and under such conditions as may be agreed between either the Applicant Mother or the Applicant Step-Father and the Respondent Father in writing.
4.That leave be granted pursuant to Section 60G of the Family Law Act 1975 (Cth) for proceedings to be commenced for the adoption of X by Mr Merton (dob: … 1989).
5.That the Applicant Mother and the Applicant Step Father have equal responsibility for giving consent and making arrangements for the issue of the child’s passport and that the Respondent Father’s consent to the issuing of the child’s passport be dispensed with.
6.That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about taking the child outside the Commonwealth of Australia.
7.That the Respondent Father be restrained from placing the child on the Airport Watch list otherwise known as the PACE Alert List.
8.That the Applicant Mother and the Applicant Step Father have equal responsibility for decisions about change to the surname of the child named in Order 1 above and that the Registry of Births, Deaths & Marriages be authorised to effect such change upon request or application by the Applicant Mother and Applicant Step Father.
9.Reasons for Judgment are reserved to a date to be fixed.
10.In the event of any application for costs by the Applicants, that such application be made by way of written submissions filed and served by no later than Friday, 18 December 2020 with any submissions in response from the Respondent father to be filed and served by no later than 15 January 2021 and upon completion of submissions judgment is reserved to chambers.
11.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
12.All outstanding applications be dismissed.
13.The matter be removed from the active pending cases list.
14.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.
THE COURT NOTES THAT
15.In the circumstances of this matter there is no application for costs by the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merton & Manley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J
These are parenting proceedings commenced by the applicant mother and the applicant step-father by Initiating Application filed 4 June 2018.
The application concerns one child: X (“the child”) born in 2008 who at the time of hearing was 12 years old.
The respondent father, who was initially engaged in the proceedings, recently ceased participating in the proceedings and notified, through his then solicitors, the Independent Children’s Lawyer (“ICL”) appointed in the proceedings that he no longer intended to participate. As a result the matter was heard on an undefended basis on 18 November 2020.
At the undefended hearing, the mother and step-father relied upon the following documents:
(a)Amended Initiating Application filed 22 September 2020;
(b)The affidavit of the mother filed 22 September 2020;
(c)The affidavit of the mother filed 4 June 2018; and
(d)The affidavit of the step-father filed 5 June 2018.
The mother and step-father sought orders as set out in their Amended Initiating Application subject to a few amendments to align with the ICL’s position at the undefended hearing, and sought, in summary, that:
(1)The mother and step-father have equal shared parental responsibility for the child;
(2)The child live with the mother and step-father;
(3)The child spend time with the father as agreed between the mother, step-father and father in writing;
(4)Leave be granted for the proceedings to be commenced for the adoption of the child by the step-father;
(5)The mother and step-father have equal responsibility for the issue of the child’s passport and the father’s consent to the issuing of the child’s passport be dispensed with;
(6)The mother and step-father have equal responsibility for decisions about taking the child outside Australia;
(7)The father be restrained from placing the child on the Airport Watch list;
(8)The mother and step-father have equal responsibility for decisions about change of surname for the child;
(9)The father pay the mother’s costs associated with the proceedings.
The ICL supported the position of the applicant mother and step-father following the applicant adopting the position of the ICL as to time with the father and some other minor issues. The ICL did not take a position in relation to costs. An order was also made on that in the event of any application for costs by the applicants, that such application be made by way of written submissions filed and served by no later than Friday, 18 December 2020 with any submissions in response from the father to be filed and served by no later than 15 January 2021 and upon completion of submissions judgment be reserved to chambers.
Orders were made by the Court in the terms proposed by the ICL and agreed to by the applicants. Reasons for Judgment were reserved. These are those reasons.
Context
The mother who was 30 and the father who was 31 at the time of hearing were in a relationship off and on from the time they met in high school until early 2008. The relationship was short lived and the parties were not in a relationship at the time of the birth of the child in 2008.
The mother was living with the maternal grandparents when the child was born who assisted with the care of the child. In the first few years of the child’s life the father spent time with the child infrequently and sporadically.
In the latter half of 2011 the parties were able to reach an agreement through mediation that the child live with the mother and spend gradually increasing time with the father, however, the father did not ever avail himself of the time arrangement agreed between the parties. It is the mother’s position that the father has chosen not to be a part of the child’s life.
The mother and step-father commenced a relationship in July 2011 and married in 2014. The mother and step-father have three children from their relationship; the youngest being almost ten months old and the eldest age six. The subject child has lived in the household with the step-father since 2014 and has referred to the step-father as “dad” since he was about five years old. The step-father also has a child of a previous relationship who spends time with the step-father each Sunday.
The mother and step-father commenced proceedings in June 2018 seeking, amongst other things, that leave be granted for proceedings to be commenced for the adoption of the child, that the child live with the mother and step-father and that they have equal shared parental responsibility for the child.
The proceedings
The matter came before a registrar on 10 July 2018 on which occasion directions were made for the filing of documents and orders were made for the parties to attend upon a family consultant for participation in the Child Responsive Program and the preparation of a Children and Parents’ Issues Assessment Report.
On 9 August 2018 interim orders were made by consent for both parties to sign all documents to cause an updated passport to be issued for the child and that the mother be permitted to travel overseas with the child on the condition that she provide the father with an itinerary of her travel.
On 25 September 2018 orders were made appointing an ICL in the proceedings and by consent orders were made that all parties submit to urine drug analysis and hair follicle testing and that the father attend two parenting courses.
On 1 February 2019 orders were made by consent appointing a Single Expert Witness Psychologist to prepare a report upon matters relating to the welfare of the child. Orders were also made for the parties to participate in therapeutic child inclusive counselling to determine whether it is in the child’s best interests to be introduced to the father.
The matter did not come before the Court again until 18 August 2020 after the ICL requested the matter be relisted by reason of the parties’ inaction. For reasons which are not clear, the parties did not attend upon the Single Expert Psychologist and the father failed to participate in family therapy. There was no appearance by the father on 18 August 2020, the father’s solicitors had filed a Notice of Ceasing to Act in July 2020 and the ICL notified the Court that they had received communication from the father’s former solicitors that the father did not intend to further engage in the proceedings. In these circumstances, orders were made for the proceedings to be adjourned to undefended hearing.
On 18 November 2020, the date listed for undefended hearing, there was again no appearance by the father and in his absence the matter proceeded to undefended hearing. Final orders were made in the terms proposed by the ICL and reasons for judgment were reserved.
Procedural Fairness
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.
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.
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.
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 Act:
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
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 …
As set out above, the father failed to attend the last two court events and expressed a clear intention to the ICL (through his then solicitors) that he no longer wished to engage in the proceedings. In these circumstances, the Court was satisfied that it was proper for the matter to proceed on an undefended basis.
The Child Responsive Program Memorandum
On 27 August 2018 the parties attended upon a family consultant as part of the Child Responsive Program and a Memorandum was subsequently prepared and released on 29 August 2018.
The child who was 10 years old at the time of the interview spoke positively of his mother whom he described as “really nice”. When asked about his father, the child clarified whether the family consultant was referring to the step-father or his biological father. The child described the step-father as “really kind” and said “he always treats me like I’m his”. When asked about his father, the child said he would feel “scared” to spend time with him because he is “a stranger” to him. When it was explained to the child that the judge may be of the view that the child should at least meet with the father on one occasion, and after exploring multiple options with how this might occur, the child said that his preferred option would be to meet the father briefly with the family consultant present.
Both the mother and father reported that there had been several Apprehended Domestic Violence Orders (“ADVOs”) issued in the past to protect the mother from the father but neither parent could recall the details surrounding these orders being made. The mother did recall that the father had breached one of the ADVOs by breaking into her house while the child was there.
The mother told the family consultant that the father had been physically violence towards her during the relationship, claiming that he had choked her and slapped her “pretty often” and stated that she “was quite outspoken and he didn’t like that”. The mother reported that the father had threatened her with a machete and had thrown objects at her which had resulted in her sustaining bruising and that she had experienced problems with her hearing lasting several weeks due to the father’s alleged assaults. The mother also reported that the father had verbally abused her during the relationship and threatened to harm her family and smash up their home.
The mother reported that the father had never been physically violent towards the child and she had no concerns for the child’s physical safety in his care, as long as he was not affected by substances. The mother reported concerns regarding the child’s psychological safety in the father care, explaining that the father is manipulative and vacillates in his level of commitment to be appropriately involved in the child’s life, often prioritising his social life over spending regular time with the child.
The father also claimed that the mother had been physically violent towards him on several occasions during their relationship and that she had constantly verbally abused him, including telling him to kill himself because it would be better for the child if he was dead.
The mother reported that there had been periods where the father had used cannabis on a daily basis, including on days when he was meant to care for the child but she would not permit the child to be cared for by the father when she was aware of him engaging in such. The mother also told the family consultant that a mutual friend had told her that the father has used methamphetamine/ “ice” in the past. The father reported that the mother had used cocaine or ecstasy on a weekly basis during their relationship. The step-father reported that he had used ecstasy and cannabis when he was “much younger” and had been convicted of possessing a small amount of ecstasy in 2009.
Both parents reported that they have no capacity to communicate or cooperate regarding the child’s needs, and the father described the parental relationship as “quite toxic”.
The step-father said that he loves the child and feels “100 percent responsible for him”. He said that his family treat the child “like one of their own” and attend all of his birthday parties and other events.
The step-father said that he would support the father being involved in the child’s life as long as the father remains consistently and positively engaged and the child is allowed to progress at his own pace and build a relationship with the father.
The father described the mother as a “good mum” and said he has heard that the step-father treats the child kindly. The father told the family consultant that he accepted the step-father was important to the child and can accept that the child refers to him as “dad” and would accept if the child referred to him by his first name in the short and long term.
The family consultant opined that it is not in dispute that the step-father is the child’s psychological father and is important to him.
It was observed by the family consultant that the mother be reassured that the child re-establishing a relationship with the father would be positive for the child if the father were to complete a parenting course and undergo testing for illicit substances. The expert recommended that all the adults undergo hair follicle testing given the allegations of illicit substance misuse against each party.
As to the re-establishment of the relationship between the father and child, the family consultant opined:
[The child] presented as reticent to commence spending time with [the father] and this appeared primarily due to [the father] being a stranger to him. While [the child] is of an age and stage development where he could spend time with new people, it is highly likely that consciously or unconsciously, [the child] fears that [the father] will want a more intimate relationship with him than he is willing to participate in at present merely because he is his biological father. It would be important for [the child] that he is given the opportunity to test out the possibilities of relationship with [the father] at a pace that is suitable to his psychological well-being and with appropriate support. Should [the child] be introduced to [the father], he will likely require emotional support from someone he had developed a relationship of trust with. If there is no suitable family member to provide this, the therapist may be able to take on this role, with any further time [the child] may spend with [the father] to occur at a contact centre in the interim.
The family consultant recommended that drug testing occur before family therapy commences given the child did not have an established relationship with the father that needed preserving.
The family consultant recommended that all of the adults and the child attend upon a therapist with experience in assisting high conflict families.
Departmental Records
The ICL also tendered documents produced by the Department of Communities and Services (“the Department”) (Exh “E”). Records produced by the Department record that the Department received several reports between January 2008 and August 2009 in relation to domestic violence incidents between the parents. In particular, a record from November 2010 records an incident of conflict between the mother and father:
The father turned up at the mother’s home today (19/11/2010) to pay child support money and to give the child a present. The parents had agreed to this. The father gave the mother a cheque. The parents started to argue over money as the father is behind in paying child support.
There is a history of DV between the parents. The last AVO expired at the beginning of 2009. The father has previously been charged with assaulting the mother approximately 2 years ago.
Because of the history of DV, the mother asked the father to leave numerous times but he refused. The mother then said that she had to leave and so got in the car with the child and drove off. The father then left. When the mother had noticed that the father had left, she returned home with the child. The father saw the mother return home and then he also returned to the home.
The father continued to bash on the door and he continued to call the mother. The mother was upstairs in the bedroom with her son. The front door was locked but the father was able to manipulate one of the doors near the adjoining garage. The father then entered the home. The mother saw the father standing at the bottom of the stairs and so she returned to the bedroom and locked herself in the room with the son. The father continued to yell and he made threats to take the child. The mother again phoned the police.
The father was arrested and he is currently in police custody. He may be given bail today. Police will apply for an AVO today and will attempt to have the father excluded from going within 100 metres of the mother.
The father’s criminal history
The father’s criminal history was tendered by the ICL (Exh “E”).
In January 2008 the father committed an offence for which he was later charged with common assault. In May 2008 he was sentenced and received a bond with 12 months supervision with conditions that he obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation (anger management and DV counselling). The ICL details that this conviction was in relation to an assault the father perpetrated towards the mother during which he strangled her, threw alcohol cans at her head and choked her.
For offences committed in November 2010 (which it seems relates to the November 2010 incident documented above in records produced by the Department) the father was charged with remain on prescribed premises without lawful excuse, enter dwelling with intent (not steal/destroy/damage), stalk/intimidate intend fear or physical/mental harm and break and enter intend to commit serious indictable offence. For the offence of remain on prescribed premises without lawful excuse he received a $200 fine and for the offence of stalk/intimidate intend fear of physical/mental harm he received a 12 month bond. The other charges were withdrawn.
During the time the father was on bail, it seems, for the aforementioned offences he was charged with breaching of bail conditions on several occasions and further bail orders were made in relation to these breaches.
The child’s health records
The ICL also relied on a number of records produced by the child’s treating psychologist in the proceedings (Exh “E”).
A letter written from the child’s psychologist, it seems, to the child’s general practitioner in November 2017 records:
…I have now seen [the child] for a total of 7 sessions under the Mental Health Care plan and 1 further session since my last communication with you.
There seems to have been some pleasing progress in [the child’s] ability to manage his emotions. Both [the child] and his mother reported noticing a reduction in the intensity and frequency of his angry outbursts. During the additional session that I spent with [the child] since my last letter, I continued to work with him using cognitive behaviour therapy. I also spent time with his mother discussing strategies to assist in supporting his emotional needs.
I would be happy to continue working with him and his parents in the future. Thank you for referring [the child].
A further letter from the child’s psychologist sent to the child’s general practitioner a year later (December 2018) relevantly provides:
[The child’s] anxiety has been significantly impacted by recent developments relating to possible changes in contact with his birth father. [The child] and his mother have attended court on a number of occasions and this has impacted [the child] and heightened his anxiety. The anxiety has related to the court process and having interviews with court personnel, and also to possible changes in contact with [the child’s] birth father. We have been able to focus on strategies to manage his anxiety and [the child] has engaged well with me and is effectively using the strategies that we have learnt in the session to help when his anxiety becomes heightened.
…
I have also worked with [the child’s] mother to assist her to support him, and she is to be commended for the way in which she is supporting his emotional needs. I have recommended that [the child] have a review with you…
Further records from the child’s psychological were also relied upon by the mother and step‑father in the proceedings. In a record dated 22 July 2020 it is recorded:
- Current concerns: anger outbursts
- social difficulties, doesn’t always read social cues or respond to friends in the appropriate way (gave example where friends asked him to come and ride bike and he told them to go home as they were talking about fortnite game and he is not allowed to play this)
- internalising emotions at school and can come home sullen and angry
- very particular about his belongings, the way his bed is at night, routines
- doesn’t like change
- …
- Dr has said traits of ASD and is considering following up on this with an assessment
- Anger often directed at mother- will say “I hate you” or “I hope you die”
- Still experiences anxiety- lifts, when out recently was scared that family would be in danger on rocks near beach
In a record dated 27 July 2020 it is recorded:
[The child] remembered previous therapy and reported that court proceedings are all over and pleased that he now has 2 names…but not seeing biological father
…
-has come back to therapy as gets angry easily
CBT- set goals together relating to anger, discussed triggers and [the child] was able to identify feeling stressed as trigger- when mother asks him to do too many things at once, sisters, science class at school, and friends arguing over lunchtime games
Records from August, September and October 2020 document ongoing treatment in relation to the child’s anger and social and emotional skill development. The record from the latest consultation records that the mother reported that she “has seen an improvement with his ability to manage emotions, specifically anxiety and anger”.
Leave to Adopt
Section 60G provides that this Court may grant leave for proceedings to be commenced for the adoption of a child by a “prescribed adopting parent”.
For the purposes of the Act, a “prescribed adopting parent” means:
(a)A parent of the child; or
(b)A spouse of or a person in a de facto relationship with a parent of the child; or
(c)A parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
The applicants are prescribed adopting parents for the purposes of the Act.
Should the applicants not have sought leave as in the present application they would not have been precluded from obtaining an adoption order in relation to the child.
However, the Act provides that an adoption order obtained with prior leave of the Court under s 60G of the Act:
(a)ends parental responsibility for the child or children of the parent who is not the adoptive parent (s 61E(2)); Thus any parental responsibility held by the respondent father would cease on adoption.
(b)renders the child the subject of the adoption order a child of the marriage of the adopting parents for the purposes of the Act (s 60F(4)(a)); and
(c)does not end the operation of any parenting order which was in force under the Act (s 65J(2)) as at the date of the adoption order. Thus the orders to be made in these proceedings for the applicants to have equal shared parental responsibility and for the child to live with them will survive the adoption orders and remain in force.
In proceedings for leave, the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above. This will be discussed below when exploring the primary and additional considerations for the purpose of determining whether the other orders sought by the mother and step-father are in the child’s best interests.
Parenting
What are the relevant matters in determining the child’s best interests?
In proceedings for leave the Court must consider whether granting leave would be in the child’s best interests having regard to the effect of an adoption order as set out above.
The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
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.
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.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)…
(c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
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.
The presumption of equal shared parental responsibility does not apply as the second applicant is not a parent. The issue is determined by the child’s best interests as between the applicants and the father.
The mother has at all times in the child’s life been responsible for the decision making in relation to the child in circumstances where the father has not availed himself of the opportunity to participate in decision making in relation to the child. Both parents reported to the family consultant that they have no capacity to communicate or cooperate regarding the child’s needs, and the father described the parental relationship as “quite toxic”. It is the mother’s undisputed evidence that the father has not been cooperative on the occasions she has required the father’s input, such as on an occasion where the child was prevented from travelling overseas for a family holiday after the father failed to sign the child’s passport application.
In contrast, the step-father has, since the mother and he commenced a relationship, taken an active role in relation to the child’s parenting, including decision making in relation to religious, educational and medical matters. The Court accepts the submission advanced by the applicants that the step-father’s involvement in the proceedings suggests the level of contribution he seeks to have in promoting the child’s welfare and making such decisions. In these circumstances, it is in the best interests of the child that the mother and step-father share parental responsibility for the child to the exclusion of the father.
Best Interests
The Primary Considerations: s 60CC(2)
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.
Section 60CC(2)(a) – “meaningful” relationship
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.
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…
The child has a significant and meaningful relationship with the mother who has been his primary carer and attachment throughout his entire life. The child also has a meaningful relationship with his step-father whom he refers to as his “dad”.
The child has not ever enjoyed a meaningful relationship with the father who has not availed himself of the opportunity to enjoy a relationship with his son, having not seen the child since late 2010 (when the child was only two years old). The father then failed to participate in family therapy as ordered in February 2019 to facilitate the reintroduction of the child to him for the purpose of re-establishing a relationship between them. The father’s failure to comply with orders in relation to family therapy and his overall disengagement in the proceedings can be taken to be a reflection of his level of interest in participating in the child’s life and having a relationship with his child.
Section 60CC(2)(b) – the need to protect
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
The applicant mother and step-father do not assert that there is any risk of physical harm arising from the child spending time with the father, even in circumstances where the father has perpetrated family violence towards the mother. However, given the mother’s assertions as to the father’s history of drug use and the father’s failure to comply with the ICL’s requests (pursuant to court orders and directed to the father’s then solicitor) that he participate in drug testing on several occasions (29 May 2019, 5 November 2019 and 13 January 2020), the Court cannot be satisfied that there is no level of risk of physical harm in the father’s care that may arise if the father’s drug use is ongoing.
The mother and step-father originally proposed that there be an order that the child spend no time with the father and submitted that there was an unacceptable risk of psychological harm to the child in spending time with the father. However, at the undefended hearing the mother and step-father adopted the position of the ICL that there should be an order that the child spend time with the father as agreed between the mother, step-father and father in writing. It is the position of the ICL that the mother and step-father are responsive to the child’s needs and that they are able to act protectively and appropriately such that they would be able to determine what time, if any, the child should spend with the father such that the child would not be placed at risk of harm.
It is clear that the child has significant emotional needs. It is also clear from the child’s medical records that the child’s anxiety was significantly impacted by the prospect of spending time with the father. The family consultant expressed the view that were the child to commence spending time with the father, it would need to be “at a pace that is suitable to his psychological well-being and with appropriate support”. The Court is satisfied, in align with the position of the ICL, that the mother and step-father are sufficiently protective parents such that they are capable of ensuring that if the child is to re-establish a relationship with the father in the future, this will occur in a way that the child is not exposed to an unacceptable risk of psychological harm.
The additional considerations: s 60CC(3)
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);
(iii)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.
Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole in support of the orders made.
The child has a close and loving relationship with the mother and step-father, describing the step-father as “really kind” to the family consultant and saying that “he always treats me like I’m his”. The child has at all times lived in the household with his three younger half siblings and shares a close sibling relationship with them.
The child has no relationship with the biological father and considers him a “stranger”, expressing the view to the family consultant that he would feel “scared” to spend time with him.
The father has failed to take the opportunity to participate in long term decision making in relation to the child and has failed to make any real effort since the child was very young to spend time and communicate with the child. As set out above, even when given the opportunity during these proceedings to rebuild his completely non-existent relationship with the child through family therapy, the father failed to participate in the process. The father can be taken from his complete disengagement in the proceedings to have forfeited his opportunity to participate in the child’s life.
The mother and step-father maintain the child by providing for him financially. While the father has in the past from time to time paid very minimal child support to the mother (assessed as being required to pay $20 a week), he is not currently paying any child support.
The orders proposed by the mother and step-father would see the continuation of what has been the child’s circumstances for several years.
The child has significant emotional needs. He has anger management issues for which the mother has facilitated his attendance upon a psychologist. The records outlined above from the child’s treating psychologist are indicative of the mother’s efforts to support the child’s emotional development in this regard.
School records relied upon by the mother (Exh “D”) shows that the child has a good level of attendance (with only three whole days absent and one partial absence in Semester 1, 2020). Further, the child is performing reasonably well at school and in 2019 was above the school average in all areas of the National Assessment program. From this objective material it can be inferred that the mother and step-father have the capacity to meet the child’s intellectual needs.
The father told the family consultant that he is of Country B descent and that he would like to teach the child about his Country B heritage. In circumstances where the father has ceased participating in the proceedings, there is limited evidence before the Court regarding this consideration and it cannot be attributed significant weight in the determination of the proceedings.
The mother has demonstrated an appropriate attitude to the responsibilities of parenthood having assumed all responsibilities in relation to the child since his birth. The step-father has also demonstrated a proper attitude to the responsibilities of parenthood in relation to this child, providing for the child financially, taking the child to school and sporting commitments and medical appointments and assuming an active role in his day-to-day care. The father on the other hand has abdicated his responsibilities in this regard.
As outlined above, the father perpetrated family violence towards the mother in the past which has resulted in ADVOs issuing for the mother’s protection from the father and criminal convictions.
The orders sought by the mother and step-father would be the least likely to lead to further proceedings given the father’s disengagement in the proceedings. The proceedings have been on foot for over two years and during this time the child has been required to attend interviews with the family consultant and most likely the ICL. It is clear from the child’s medical records that the child’s anxiety has heightened by the court process and for this reason it is preferable to make the orders as sought by the mother and step-father which will be the least likely to lead to further proceedings.
In circumstances where the applicants are most likely to be successful in an application for the adoption of the child, the Court is satisfied that it is in the best interests of the child that leave be granted having regard to the consequences of that leave being granted under the Act as referred to above. A consideration of the section 60CC factors also supports the making of the other orders sought by the mother and step-father and supported by the ICL.
Orders will be made accordingly.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 18 December 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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Standing
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