Millen and Tanner
[2018] FCCA 654
•16 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLEN & TANNER | [2018] FCCA 654 |
| Catchwords: FAMILY LAW – Parenting – application by the Father to spend time with the child – little contact with the child for several years – serious family violence – drug and alcohol abuse – unacceptable risk – no time with the Father. |
| Legislation: Family Law Act 1975, ss.60CC(2), 60CC(3), 61DA Federal Circuit Court Rules 2001, r.16.05 |
| Applicant: | MR MILLEN |
| Respondent: | MS TANNER |
| File Number: | MLC 3958 of 2011 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 7, 8 & 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 16 March 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr Puckey |
| Solicitors for the Respondent: | Morrison & Sawers |
| Counsel for the Independent Children’s Lawyer: | Ms McNamee |
| Solicitors for the Independent Children’s Lawyer: | Joliman Lawyers |
ORDERS
All previous parenting orders in relation to the child [X] born 2009 (“[X]”) be and are hereby discharged.
The Mother have sole parental responsibility for [X].
[X] live with the Mother.
The Father have no contact with [X].
The Father by himself, by himself or his servants and/or agents, and save as is otherwise provided in these orders, be and is hereby restrained from:-
(a)contacting or attempting to contact [X] or the Mother, whether face-to-face or by any electronic means of whatsoever nature and kind;
(b)being with, in the presence of, or within 50 metres of [X] or her school on any school day between 8.00am and 6.00pm, or any other place where [X] lives or frequents from time to time;
(c)being at or within 100 metres of the Mother and [X]’s home or any place where the Mother works or frequents from time to time; and
(d)remaining in the presence of [X] in the event that for any reason, the Father and [X] may come into contact;
and this order is made pursuant to section 68B of the Family Law Act 1975 and is for the personal protection of [X] and the Mother.
The Mother be at liberty to provide a copy of these orders to any of the following:-
(a)any school at which [X] may attend from time to time;
(b)any medical professional, counsellor or other like health professional upon which [X] or the Mother may attend from time to time;
(c)Victoria Police and/or the State Magistrates’ Court; and
(d)the Department of Health and Human Services.
The Father be at liberty to provide a copy of these orders to any counsellor or like health professional he may attend from time to time.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B 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 the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Millen & Tanner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SHEPPARTON |
MLC 3958 of 2011
| MR MILLEN |
Applicant
And
| MS TANNER |
Respondent
REASONS FOR JUDGMENT
In 2013, orders were made on an undefended basis with respect to [X]. At that time [X] was four years old. [X] is now eight years old and has not spent any significant time with her Father since prior to those orders being made. Recently, the Father has seen her at school and at a (hobby omitted event). There has been no scheduled time that [X] spends with her Father for a number of years. The orders that his Honour Judge McGuire made in 2013 provided for [X] to live with the Mother and for the Mother to have sole parental responsibility in relation to [X]. The Father’s time with [X] was “reserved” and liberty was reserved to the Father to apply “in respect of his time with the child”.
Four years later, in April 2017, the Father made an application to this Court to spend time with [X]. Although he had not seen [X] in any significant way from ages four to seven, he sought orders for alternate weekend time from Friday to Monday, alternate weekday time from Wednesday to Thursday, half of school term and long summer holidays and special days. He also wants to communicate with [X] by telephone and sought a number of other orders to involve him in all aspects of [X]’s life.
The Mother and the Independent Children's Lawyer resist the Father’s application. At first they sought that the Father’s application be summarily dismissed, either pursuant to the Federal Circuit Court Rules 2001 (“the Rules”) or on the basis that there had been no change of circumstances sufficient to warrant revisiting aspects of [X]’s care beyond the orders previously made.
Given the circumstances of this case, which I shall come to shortly, I can understand why they made that application. However, ultimately I formed the view that it was not appropriate to deal summarily with the Father’s application. Quite clearly the Father was granted liberty to apply. Furthermore, the orders were made in the Father’s absence and it would seem to me that Rule 16.05 of the Rules would apply. Finally, as in any parenting case, the Father is able to have [X]’s best interests assessed by the Court as at the date of hearing. To summarily dismiss his application would be to fail to assess [X]’s best interests going forward. [X] is no longer a toddler but a young girl. She has not seen her Father at all for some time, save for in the most limited and inappropriate way. [X] is aware of his existence, and there is some evidence that she responds positively to him and the idea of him. Accordingly, I formed the view that the matter should proceed in to evidence, over the objection of the Mother and the Independent Children's Lawyer. Ultimately, and appropriately, the Mother and the Independent Children's Lawyer abandoned their applications for “summary dismissal” in favour of the more expansive assessment of [X]’s interests and welfare.
There have been many matters referred to the by the parties in these proceedings. I have not been able to include every piece of evidence I heard, or on which there was evidence, in these reasons. Just because I have not mentioned something in these reasons does not mean that I did not have regard to it. I have taken all of the evidence into account.
In these reasons, unless it is clear from the context that this is not so, a statement of fact is a finding of fact.
Background
The Father is 39 years old and the Mother is 34 years old. The Father is a (occupation omitted) and the Mother is engaged in full time home duties. The parties commenced their relationship in around 2007 and initially separated in November 2010. [X] was born 2009 and was an infant when the parties separated. The parties appear to have reconciled briefly in 2011, with the Father making promises to change his lifestyle involving drugs and alcohol and receive counselling with respect to anger management. It would seem that the reconciliation failed as the Father failed to live up to his promises to change and further family violence occurred.
Following separation [X] remained in her Mother’s care.
The Father has a son [A] who lives with his mother and is now around 16 years old. [A] does not spend time with the Father as he has “not been permitted to spend time with [A] by [his] mother”. The Mother has another daughter [B] who is now around 15 years old. [B]’s living arrangements have varied between the Mother and [B]’s father. There had been orders that [B] live with the Mother and spend time with her father on a regular alternate weekend basis. [B] had requested to live with her father and now does so by agreement between her parents. The Mother spends time with [B] in accordance with [B]’s wishes which is usually two or three nights per week.
On 9 November 2011, final orders were made by consent for [X] to spend time with the Father on alternate weekends from Saturday to Sunday. This time was to proceed on the condition that an interlock alcohol detection device, (which had been installed in the Father’s vehicle due to a conviction of driving with a blood alcohol reading in excess of 0.05), did not show a positive reading for alcohol. There were also various injunctions made pertaining to both parents, including an injunction prohibiting the Father from consuming drugs or alcohol 24 hours prior to and during any time [X] spent time with him. Upon the Father demonstrating compliance with alcohol abstinence, the time that he was to spend with [X] would increase.
The Father initially refused to spend time with [X] but eventually did so. The Father proved unable to abide by the orders to abstain from drinking and his time with [X] ceased. At Christmas time in 2011 the Father threatened to withhold [X] and sent text messages to the Mother saying he was taking [X] to Melbourne and he was going to drink alcohol and smoke ice with her in his care.
It would seem that following the breakdown of the time regime the Father saw [X] once in 2012 around her birthday in a park. He spent time and had lunch with her, [B] and the Mother. Following that, the Father sought the consent of the Mother by text to speak to [X] at Christmas time in 2013 which was refused. On [X]’s birthday in 2014, the Father requested time or communication with [X] which did not occur.
The Father had solicitors acting for him when he filed his Initiating Application in April 2017. Unsurprisingly, his affidavit in support of that Initiating Application, sworn on 31 March 2017, dealt with the reasons why the Father did not attend the 2013 hearing. He set out at paragraph 10 of his affidavit sworn on 31 March 2017 as follows:-
That I did not attend the final hearing and seek to provide the following explanation for my absence:
At the time of the final hearing, I was suffering from depression and stress. I had been struggling with depression for some time but regrettably and foolishly, I did not seek assistance. Rather, I self-medicated by consuming excessive alcohol and illicit drugs.
I was embroiled in family law proceedings in which Ms Tanner who was seeking to limit my time with [X]. [sic] I continued to drink heavily as I felt that I was losing my daughter and my relationship with Ms Tanner was very poor.
I was already depressed over the amount of time I was spending with my son [A].
As both mothers of my children were removing my parental responsibilities, I felt lost and confused.
I fell deeper into depression and consumed more alcohol to deaden the emotional pain I was feeling.
I continued to use illicit drugs predominately marijuana but I also commenced using “ice”.
I was a very depressed, very angry person and continued to drink heavily.
I appreciate that Federal Magistrate McGuire as he was then, had no alternative in the circumstances, but to reserve my time with my daughter.
He says at paragraph 11:-
That I was in a bad space at the time and not emotionally capable of dealing with the proceedings.
Further, at paragraphs 16 and 17 he says as follows:-
That I realised that I had to prove that I was a worthy father. I decided that before I could attempt to bring the matter back to Court, I needed to get my life sorted out.
That finally committed to significantly modifying my consumption of alcohol and cease using illicit drugs. [sic]
With the assistance of close friends and my current partner I gradually managed to limit my alcohol consumption to either a Friday or Saturday evening, when I would consume between two to four cans of alcohol.
I have now reached the point where I do no drink at all and have not done so twelve months. [sic]
I have no inclination to resume drinking alcohol.
I have also totally ceased using marijuana.
I do not use any other illicit drugs.
The Father’s March 2017 affidavit also contained other references to illicit drug use in his life.
The Father’s application set into motion a series of procedural events. On 22 May 2017, orders were made by consent for the parties to engage with the Berry Street Children’s Contact Centre in (town omitted) (“Berry Street”) for supervised time between [X] and the Father, and for the father to undertake supervised urine drug screens. The matter returned to Court in August and was simply adjourned to November 2017.
In November the Father was initially not in attendance and orders were made striking out his application. When the Father arrived late those initial orders were vacated. The Father came prepared with an unsworn affidavit which he adopted in evidence on that day. Orders were then made by the Court suspending the order for time at Berry Street, appointing an Independent Children's Lawyer and amending the order for urine drug screens to be at the request of the Independent Children's Lawyer. The proceedings were then listed:-
…for hearing with cross examination on 7 March 2018 at 10.00am in the Shepparton sittings of this Court (“the hearing date”) to determine whether the Father has a prima facie case to proceed to spending time with [X].
The matter proceeded to a hearing last week. As a self-represented litigant, when the Father gave evidence I asked him at first instance whether his first affidavit was true and correct. At this point the Father alleged that the solicitor acting on his behalf at the time the first affidavit was sworn had not acted on his instructions when he had sworn the document. He declined to agree that the contents were true and correct, and disavowed large portions of it, most notably his explanations as to why he had failed to appear in 2013, and a complete denial of his use of illicit drugs. He did accept that he had previously had a problem with alcohol abuse but said he had not had a drink for around four years.
This leaves the Court in the curious position of having no explanation as to his failure to appear. Ultimately, this becomes a moot point as I do not accept his denials of drug use and violence, and the decision I have made is on a substantive basis as to what is in [X]’s best interests moving forward, rather than being delicately balanced around legal technicalities.
On 15 November 2017 the Father no longer had legal representation. As I have set out, the Father attended at Court late, after orders had been made in his absence. These orders were subsequently vacated and he gave evidence that the contents of an unsworn affidavit prepared by him were true and correct. This was marked as ‘Exhibit F1’ of the proceedings on 15 November 2017. In that document, and in accordance with his evidence at the hearing he said:-
That I’ve provided on many occasions important information which my previous Lawyer JOE MAMMONE [sic] has failed to take into account [sic], attached hereto and marked with the letter “E” is a true copy of a [sic] E-mail sent to my previous lawyer JOE MAMMONE [sic] in 2015.
That I have been let down and misrepresented by my previous lawyer JOE MAMONE and I believe he is guilty of negligence by failing to exercise a proper degree of skill, and not preparing my case to a proper standard and not including important facts, using false documents that incriminates myself.
…
The Father supplied this information in support of his refusal to undertake supervised urine drug analysis screens which had been ordered on two occasions, firstly by consent on 22 May 2017 (to be at the request of the solicitor for the Mother), and by the Court on 15 November 2017 (to be at the request of the Independent Children's Lawyer, who was appointed on that day). The Father had been requested to undertake no less than six, and possibly seven urine drug screens throughout 2017 and has failed to comply with those requests, notwithstanding he had been ordered to do so.
Thus, in the sense of an ability to assess the Father’s involvement with illicit drugs, the Court is left with the Father’s own evidence at first instance that he had very real difficulties with the use or misuse of illicit substances. His evidence at first instance was that his drug use and other factors were of such significance that he was unable to engage with the Court process or pursue a relationship with his daughter at that time or for the next four years. His failure to even allow the Court to assess his denial of the use of illicit drugs via the provision of urine screen results is concerning. If I accept the Father’s refusal to undertake the screens was because illicit drugs were not an issue for him, and that he had provided urine analysis screens in previous proceedings, his position in failing to provide more recent screens is foolhardy and self-destructive. Considering the evidence contained in the Father’s affidavit of November 2017 and hearing the Father give evidence, it would seem that he has taken a combative and belligerent stand against what he said were slanderous, harsh and abusive lies said about him and his partner by the Mother.
I do not accept that the Father swore a false document at first instance. It seems ludicrous that he could be forced to sign a document with that level of particularity in circumstances where the evidence was false. In any event, he did not say that he was forced to sign but rather his lawyer was negligent in preparing the document, as if to suggest that he had no part in how the document came to form part of the evidence in the proceedings. I find his evidence surrounding this issue to be quite unbelievable. The significance of this is twofold.
First, it impacts on the Father’s credit in relation to this and numerous other issues in the proceedings which are particularly pertinent to [X]’s welfare. For instance, it impacts on my assessment of the evidence with respect to serious family violence alleged by the Mother, both historically and more recently. It also impacts on whether I assess the Father’s parental capacity as being impaired by illicit drug use. I find it difficult to accept the Father’s evidence when it is in conflict with the evidence of the Mother. Therefore, when the Mother alleges that the Father had “significant drug and alcohol abuse problems” throughout their relationship and that [X] was exposed to this, I accept her evidence. I have less confidence in the Mother’s assertion that, during a violent incident which occurred on 21 December 2015, that she was “confident he was also using ice”, but nevertheless regard the possibility of the Father’s ongoing drug use as an unacceptable risk to [X]’s welfare if the Father were to have unsupervised time with her.
Second, in circumstances where the Father has likely made false denials with respect to serious welfare issue for [X], particularly drug use and violence, it is difficult to see how the Father could ever present as someone who could be a stable and predictable person to be involved in [X]’s life. He fails to acknowledge his own deficits.
Family violence
Family violence is the significant issue in these proceedings. The family violence which is alleged is serious and has endured over many years both before and after the parties’ relationship.
The Mother describes years of violence, drug abuse by the Father, alcohol abuse by the Father, property damage by the Father, behaviour of the Father designed to intimidate the Mother, threats, and emotional abuse. She said, for instance, that:-
a)the Father smashed possessions in their home;
b)the Father sent threatening messages to her on her phone;
c)the Father was charged with criminal damage following an incident where he picked up a coffee table and held it above the Mother’s head, before smashing the table on the floor in front of her. The Mother subsequently obtained an Intervention Order;
d)the Father pushed the Mother which sent her across the floor;
e)the Father kicked and punched the Mother’s car;
f)in 2011 the Father assaulted the Mother in the presence of [X] and was arrested and charged with breach of the Intervention Order and assault; and
g)in 2011 he sent the following two text messages to the Mother:-
you wana be a fukn lowlife dog about it well I’ll have [X] in 2 weeks goin straight back to melb and gettn on the ice/alcohol an maybe acid so fuck u and the aint nothing u can do about it and prove it ha ha ha ha ha ha
[sic]
gotta go got the pipe to smoke ha ha
[sic]
Because not all of these allegations were explored in detail during the hearing, it is impossible to safely make individual findings in relation to each of them. However, what is clear is that the Mother alleges these issues and the Father denies them. I accept in a general sense that the Mother has been the victim of family violence and that the Father is the perpetrator of that violence.
On a more particular level there were further issues demonstrating family violence which were explored in more detail during the hearing.
The first concerns an allegation that the Father assaulted [X] in 2011 by hitting [X]’s head against a wall. During this hearing the Father sought to deny that he had assaulted [X] and suggested that the Mother had fabricated the allegation seizing upon a medical problem [X] had with her eye which caused it to be red.
The Father was charged in relation to that incident and agreed that he had ultimately entered a plea of guilty in relation to those offences and received a three month suspended sentence as a penalty. The Father’s denial of any violence towards [X] does not sit well with his plea of guilty.
The assault of a child is serious and I accept that on the balance of probabilities, even having regard to the serious nature of the allegation, that the Father has directly hurt [X]. I do not accept the Father’s statement that “I did not assault my daughter”.
In 2013 during interviews for the preparation of a Family Report the Father said to the Family Report Writer “It gets so frustrating. I just want to go round and stab them”, referring to the Mother and the maternal grandmother. The Father agreed that he had said those words to the Family Report Writer but denied that he had meant that he would actually do that. Within weeks of that Family Report, the final orders were made on an undefended basis by Judge McGuire. I regard the Father’s words as threatening to and frightening for the Mother. In the context of this case and the circumstances of this family, it is disingenuous of the Father to suggest that his words did not contain a veiled threat. Even if I did accept the Father’s position that he did not intend to threaten, which I do not, I cannot ignore the impact of the statement upon the Mother when she read them in the Family Report and subsequently the Father’s failure to participate in the proceedings. In the context of the Father’s propensity to commit acts of family violence, drug and alcohol misuse and lack of containment, the statement and his non-attendance at the hearing would have resulted in fear and uncertainty for the Mother as to her personal safety and the safety of [X].
Nevertheless, things remained relatively calm until a further violent incident which occurred just under three years later on 21 December 2015. Each of the parties agreed that the Father attended at the Mother’s address. The Mother does not know how the Father knew where she was living. The Father said that he was driving by and happened to see [X] in the front yard of the property.
On the Mother’s version of events there then followed a most terrifying incident which had come unexpectedly on that afternoon. She said that the Father came in through the front door. The Mother says she told [B] to call her father and ask him to collect [B] and [X] straight away as they had planned to go to (activity omitted) that night. That occurred and [X] and [B] did not witness what then occurred. The Mother said that the Father was visibly intoxicated, erratic and aggressive, and she thought he had been using ice. The Mother then said at paragraph 19 of her affidavit sworn on 19 May 2017 that the following ensued:-
Mr Millen pushed me onto the floor and around the kitchen. He pinned me down and was shouting at me that [B]’s father had provided him with my address. He threatened to burn my eye with the lit cigarette he had in his hand. He yelled at me that he was going to kill me. Mr Millen got up after a while and left. I did not call the Police as I have lost faith in them since they failed to protect me from Mr Millen when I previously called them reporting breaches of the Intervention Order I had against him.
The Father agreed that he was at the home. He said that on that day he had a “few drinks”; evidencing the falsity of his previous statement in his November 2017 affidavit that he “gave up drinking alcohol 4 years ago”. He told me that the remainder of the Mother’s evidence was false and a fabrication, and in fact, even goes so far as to suggest that he was concerned about the Mother’s mental health in making such false allegations.
In 2016 the Father’s home which he shared with his partner and her two daughters was destroyed by fire. The incident was reported in the (town omitted) newspaper. In an online comment section of the newspaper’s Facebook page the Mother commented as follows:-
Hey mate I'm Mr Millen fiancé we’ve been Apart for 6 years the little cutie in the pic is his daughter. his unable to see both his children due to all the beating’s he even put that beautiful baby in hospital from smashing her up at 2 yrs old. he tried to burn my house down smashed in both my cars wrecked all my furniture the lis goes on it cost me thousands of dollars to fix and replace everything while trying to keep a well adjusted daughter who had been thro hell and back.. Christmas was the last time he found us 3 yrs later and I had to get the kids out of the house and I got smashed around my own house and threatened to get killed then I had him on top of me trying to burn my eyeball out with a ciggy.. I’m not snipping I’m in general conern for Ms M’s children as I know the both of them are on crack and alcoholics she has told me herself how bad it is, the children’s father has them now and he will provide for his daughters so them asking for donation’s and using those poor girls as pawns is disgusting.. cheers Ms Tanner
[sic]
The Father was anxious that I look at this entry on the basis that it reflected badly on the Mother’s mental health and was a cruel and malicious response to an undoubtedly traumatic event in the lives of the Father and his family. Although I agree that the Mother could have refrained from making the comment in such a public forum, it is not lost on me that the Mother has referred to the December incident in terms which are largely corroborative of her version of events. Her reference to the incident is made in the absence of any Court proceedings and at that stage the prospect of future proceedings did not seem likely. At that stage the Father had not seen [X] for three years, save for the December 2015 incident, and had not made any application to the Court. I cannot accept that the Mother would have had the foresight or the sophistication to elaborately describe a violent event which was completely fabricated; yet that is what the Father would have me believe.
I do not accept the Father’s denial of this violent event. I am satisfied that on 21 December 2015 the Father attended the Mother’s home after a period of no or limited contact between them and in circumstances where the Mother was unaware that he knew where she lived. I am satisfied that:-
a)he had been consuming alcohol on that occasion;
b)he entered the Mother’s home uninvited in an aggressive and erratic state;
c)he pushed the Mother to the floor and pushed her around the kitchen;
d)he restrained the Mother by pinning her down; and
e)he shouted at the Mother, threatened to kill her and threatened to burn her eye with a lit cigarette which he was holding in his hand.
This was a serious violent event. It was unprovoked and unexpected. It is indicative of serious angry and disinhibited behaviour by the Father which is directed towards the Mother and has endured for many years. The Father falsely denies his violent acts. Axiomatically, it is therefore impossible for the Father to sincerely accept his responsibility and culpability for serious family violence in the relationship. On an assessment of this incident alone, I assess the Father as having no capacity to change. When considered with the history of violence in the relationship as described by the Mother, the Mother’s safety is at risk.
On one occasion the Father has assaulted [X] and placed her at personal risk of harm. [X] is at an unacceptable risk of harm both directly, and from being exposed to family violence because her Mother’s safety is compromised. The Mother’s safety is central to [X]’s welfare, as the Mother has been [X]’s primary, predictable and stable carer. At age eight, [X] is entirely dependent on her Mother for her physical, emotional and psychological wellbeing. This is the nature of their Mother and daughter relationship.
Even allowing for the Father’s position as a self-represented litigant his attempts to distract from the real and significant issues in this case by criticising the nature of the Mother’s care for [X] does him no credit at all. If I put his criticisms at their highest and accept that the Mother’s parenting skills need attention, particularly surrounding an unacceptably high level of absenteeism from school, these issues hardly advance the Father’s case in the circumstances.
The Father’s insistent criticisms of the Mother were expressed in tempered tones in the Court room, but his text message to the Mother on 30 March 2017 exhibit the true nature of his feelings on this issue. These texts read as follows:-
See you in court you low heartless piece of shit!!! Stop using [X] as a tool to get back at me … you’re a gutless using shit mother and the court will soon see…
[X] says to me she’s been crying a lot cause she misses me… and you go and do this ….. and to try and blame your shit parenting on me …it’s your fault and your shit life you have dragged [X] threw [sic]….and all the people you rip out of [X]’s life … her dad,her sister, her cousins.. words cannot describe how much I despise you shit cunt of a mother
The Mother presented as timid and frightened by the Father. I had the valuable opportunity to observe her give evidence and I accept that her fear and anxiety were genuine. Counsel for the Mother tried to resist the Mother being cross examined, however I declined that application. As the matter proceeded on Circuit, I could do little more than adjust the physical nature of the courtroom to accommodate the family violence concerns in this case. The Father was polite to the Mother and adhered to my directions as to how the cross examination would proceed. That is to his credit, however, in my view, his presentation in the Court room belies his true nature.
The Father’s unauthorised contact with [X]
On the Father’s evidence since the 2013 orders, his time with [X] had been contained to a limited few occasions. The Father says that:-
a)he attended at [X]’s school on 15 March 2017 and spent approximately 10 minutes with [X];
b)he attended at [X]’s school (hobby omitted) on 29 March 2017. He asserts that [X] was pleased to see him and requested him to follow her back to the school at the conclusion of the event which he did. She then further requested that he walk her to her classroom, which he was unable to do, but told [X] that he would see her the following day; and
c)the Father attended at the school the next day with the intention of leaving photographs from the previous day for [X], but was advised when he arrived that he could no longer attend there.
Further, in relation to his attendance at these events, he asserted that he had been invited to attend, either by [X] or the school, and denied any wrongdoing in relation to this. His approaches to [X] without the consent of the Mother are inappropriate, lack insight and were in the face of his own belief that he was not permitted to do so.
The Mother sets out the Father’s recent time with [X], in summary, as follows:-
a)in early March 2017, [X] had returned home from school and informed the Mother that she had seen the Father. The Mother contacted the school and told them that pursuant to Court orders, [X] was not to spend time with her Father. The school informed the Mother that they required a copy of the orders to enforce this, so when the Mother could not find a copy she endeavoured to obtain same from the Court. She asked the school to contact her if the Father attended again;
b)on 2017 the school called the Mother to inform her that the Father had attended and wished to remove [X] from school to celebrate [A]’s birthday. The school informed the Mother that they had not permitted this to occur;
c)on 28 March 2017 the Father attended at the (hobby omitted). The Mother obtained a copy of the Court orders that day and provided same to the school; and
d)the Mother understands that the Father also attended at the school the following day and was told by the school that he had to leave.
The Law
Parental responsibility
At first instance I should note that little has changed to warrant revisiting the sole parental responsibility order made by Judge McGuire in 2013. Nevertheless, the Father retains his rights pursuant to Rule 16.05 of the Rules, and on that basis alone a consideration of parental responsibility should take place.
The Mother, supported by the Independent Children's Lawyer, seeks an order for sole parental responsibility. The Father seeks to have equal shared parental responsibility with the Mother.
Section 61DA of the Family Law Act 1975 (“the Act”) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility.
Parental responsibility in relation to children means all duties, powers, responsibilities and authority which by law parents have in relation to children.
When two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make decisions in relation to their children jointly. The concept of shared parental responsibility carries with it the requirement to consult the other parent in relation to decisions to be made and to make a genuine effort to come to a joint decision about that issue. This means that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
In these proceedings the presumption that it is in the best interests of [X] that her parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)if the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family; and
b)where evidence is adduced, upon which the Court is satisfied that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children.
For the reasons I have set out, the presumption of equal shared parental responsibility does not apply to [X] due to issues of family violence. Furthermore, [X]’s welfare dictates that her Mother should have sole parental responsibility.
In the circumstances of this case, it would be impossible and untenable for the Mother to be required to deal with the Father in any co-operative sense. She is anxious and apprehensive about [X]’s welfare in circumstances where the Father lacks any capacity to reflect on his behaviour and acknowledge that his violent acts have occurred at all. The Mother is genuinely fearful for her own safety and the safety of [X]. It would be unreasonable and untenable to expect the Mother to be required to share parental responsibility with the Father given the necessary communication, co-operation and interaction such an order entails.
In this matter the Mother shall have sole parental responsibility for [X].
The primary considerations
I turn now to the legislative pathway, which will assist me in the ultimate outcome of these proceedings. The best interests of [X] are paramount in these proceedings. In determining the best interests of the child there are two primary matters or considerations and several additional matters or considerations to take into account.
The primary considerations are set out in section 60CC(2) of the Act and accordingly I must consider:-
a)the benefit to [X] in having a meaningful relationship with both of her parents; and
b)the need to protect [X] from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am to give greater weight to the latter consideration and in this case the weight I give to the latter becomes a predominant issue. For the reasons I have set out, I regard [X] to be at risk of harm were the Father to have any time with her. The Father’s application for unsupervised and extensive time with [X] cannot be supported. The only conceivable way forward in this matter would be for [X] to have ongoing supervised time with the Father. The supervision would need to be stringent and conducted by either a paid supervisor or at a contact centre. Putting aside practical aspects of availability and cost, which are in and of themselves serious issues, I am not convinced that reintroducing the Father into [X]’s life is in her long term interests. Any time that [X] spends with her Father would be incapable of progressing beyond the structures and impediments of supervision, because the Father cannot acknowledge that his behaviour is unacceptable.
It is difficult to imagine the Father being capable of effecting the requisite changes necessary to progress his relationship with his daughter. If he were able to acknowledge that he has subjected the Mother and [X] to family violence and indulged in drug abuse, he would need to engage in numerous counselling and healing processes to establish abstinence and change. He would certainly need to adhere to drug testing, including hair follicle testing. Even if this occurred, and I think it highly unlikely that it will, that is only one side of the equation. The Mother is a victim of serious family violence and it has both damaged her and impacted upon [X].
These orders will not provide for a meaningful relationship between [X] and her Father. As a result of the Father’s actions, he has deprived [X] of the benefit of having him involved in her life. In isolation, I accept that the Father would have much to offer [X] as a presence in her life. However, she will now be deprived of not only the Father’s company but of all of those in the paternal family, except perhaps [A], who she sees on occasion. Not only will she be deprived of their company in a physical sense but she will be denied the full emotional and psychological benefits of having relatives who are knowledgeable about her life and circumstances in the caring and nurturing way that only a family can provide. It is likely that she will experience this as a loss as she moves through her life. It is possible that she will idealise the Father and the paternal family. I accept the Father’s evidence that on the few occasions he has seen her she has enjoyed his company. I accept that if asked, [X] would likely say that she would like a continuing relationship with her Dad.
As a result of the Father’s actions, he now exposes her to the well documented psychological impacts for individuals who are deprived of a meaningful relationship with each of their parents. It is not an easy decision to deprive a child of a relationship with one of her parents, but in my view it is necessary in this case.
The additional factors pursuant to section 60CC(3) of the Act
In a sense it is the primary considerations which are determinative of this case. Nevertheless, the additional considerations must be factored in to the assessment and provide a richer factual matrix upon which the decision is based.
[X]’s views
As I have said, I accept that [X] would likely say that she would like to spend time with the Father. In the circumstances of this case, [X]’s views cannot be persuasive or determinative of the substantive outcome.
The nature of [X]’s relationships
As I have discussed, [X] has a primary relationship with her Mother and is totally reliant on her Mother for her needs. This relationship needs to be protected and supported.
[X] is aware of her Father and knows that she has a Father. However, their relationship has been distanced by a lack of time spent together in circumstances that have been warranted to protect [X]. It is unlikely that the Father has any intimate or real knowledge about [X]. The Father’s lack of insight with respect to [X] and her needs, and what I perceived to be an egocentric view of his rights as they pertain to [X], is perhaps explicable due to a lack of constant and intimate understanding of her. Notwithstanding the lack of contact between the Father and [X], the Father elevated his role in [X]’s life to a level that in my view was unwarranted and not objectively realistic.
[X] has a relationship with her brother [A], which is facilitated by the Mother. [X] also has a relationship with her sister [B]. [B] is also reliant on the Mother, but to a lesser extent, and on that basis the Mother’s safety is crucial to maintain the integrity of the sibling relationship. Although not a replacement, I would hope that an enduring sibling relationship with both [B] and [A] will provide [X] with some ameliorating factors to offset not having her Father in her life.
The participation of [X]’s parents in her life
For many years, the Father has failed to participate in [X]’s life, as I have set out. It is the Mother who has had to make the decisions in relation to [X]’s welfare. Although the Father sets out his attempts to contact and spend time with [X], those attempts have been sporadic.
I do accept that the Father’s desire to have [X] in his life is genuine and desperate. Nevertheless, the Father on numerous occasions has failed to engage with [X], and failed to attend to drug screens which may have put him in a position to participate more fully in her life, (although not guaranteed to have done so).
If the Father’s lack of participation had been the only issue in this case of significance, then I would not regard this factor is an insurmountable obstacle to him spending time with his daughter.
There can be no criticism of the Mother in relation to this issue.
The extent to which each of [X]’s parents have fulfilled or failed to fulfil his or her obligations to maintain [X]
The Mother has fulfilled her obligations to maintain [X] and provide to her needs. I am unaware whether the Father provides any assistance in that regard.
The likely effect of any changes in [X]’s circumstances
The orders will largely give effect to maintaining [X]’s current circumstances as they have existed over the last four or five years. There will be little change for her except that she will no longer experience the Father attending her school and activities on an informal and inappropriate basis.
The practical difficulty and expense associated with face to face time and/or communication with the other parent
Although the parties live in close proximity to each other, in my view the only realistic way for the Father to spend time with [X] would be under paid or structured supervision. This presents significant practical difficulties in the longer term and cost issues ongoing. I have considered whether [X] should be able to see her Father on around two occasions per year but have rejected that partly on the basis that it would seem to be a meagre offering for her, particularly when she seems to enjoy her Father’s company.
The capacity of the parents to meet [X]’s needs
The Mother has demonstrated adequate capacity to meet [X]’s needs and she is the only viable candidate to do so. Although I have noted the Father’s criticisms of her parenting skills, the reality is that she has been good enough. Any deficits in her capacity cannot be dealt with in this application. There is insufficient evidence to establish whether her parenting capacity has been impaired as a result of family violence, but to my own observation she presented as damaged and fragile. The Mother could barely look up when giving evidence, spoke in a timid voice and only when necessary, and seemed flat and tearful.
Even if there are deficits in the Mother’s parental capacity that does not impact on the outcome of this case. I would hope that the orders I make alleviate the Mother’s concerns and anxieties regarding [X]’s safety and perhaps make her responsibilities to care for [X] a little easier.
I have dealt in detail with my concerns regarding the parenting capacity of the Father. He devoted considerable thought in his presentation of these proceedings in establishing his good citizenship within the community and his good character. I accept that he presents to many others as an upstanding member of the community. Those issues pale into insignificance when considering his conduct towards the Mother and [X].
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
These will be final orders.
I have set out previously the issues which, in my view, the Father would need to address in order to found a renewed application to see [X]. My comments are my opinion and should not be viewed as hampering any future consideration. Ultimately, the issue of whether or not a change of circumstances has occurred will need to be considered by any judicial officer hearing the matter at that time.
The Father will be given permission to provide these reasons to any counsellor or health professional he may see from time to time.
Other factors in section 60CC(3) of the Act
The other factors contained in section 60CC(3) of the Act are either irrelevant or have been dealt with elsewhere in these reasons. I have considered all of the additional factors in coming to my decision.
Other matters
The Mother will be given permission to provide a copy of these orders to any school at which [X] attends, to the police and to the State Magistrate’s Court. She should be able to access any resources necessary to implement the intention of these orders.
The Mother will be given permission to provide these reasons to any counsellor or health professional that she or [X] may attend upon from time to time.
The Mother will also be given permission to provide these reasons to any government body, including the Department of Health and Human Services.
I have considered whether the Father should be permitted to send gifts and cards to [X] and receive her school reports. I can see a benefit to [X] in the sense of her sense of worth as a person of value to her Father and allowing a sense of connection if ultimately she seeks the Father out. Nevertheless, I am ultimately of the view that there is a risk that the Father may use such orders to criticise and harass the Mother as the only remaining vestige of connection between he and [X]. I will therefore not make those orders.
In these proceedings there will be an order for no contact between the Father and [X]. For the reasons that I have set out, I regard that order to be in her best interests.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 16 March 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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