MONCREIFFE & LAXTON

[2013] FamCA 550

FAMILY COURT OF AUSTRALIA

MONCREIFFE & LAXTON [2013] FamCA 550

FAMILY LAW – CHILDREN – Best interests – Family violence orders against the respondent father for protection of the applicant mother – Respondent has history of drug and alcohol abuse – Respondent admitted to psychiatric facility after attempted suicide – Relationships between the respondent and the eldest two children not to be taken into consideration under s60CC(2)(a) of the Family Law Act 1975 (Cth) as he is not the biological father – Relationship between the respondent and the youngest child not meaningful – Children have meaningful relationships with the applicant.

FAMILY LAW – CHILDREN – With whom the children live – Children to live with the applicant – Wishes of the two eldest children given significant weight due to their age and maturity – Injunction made restraining the parties from causing or permitting the children from communicating or spending time with the respondent.

FAMILY LAW – CHILDREN – Parental responsibility – Equal shared parental responsibility could not be allocated for the eldest two children as their biological father is deceased – The presumption of equal shared parental responsibility in respect of the youngest child does not apply because of abuse and family violence committed by the respondent – Sole parental responsibility allocated to the applicant.

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38 and 42
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B,61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE AND 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Allesch v Maunz (2000) 203 CLR 172
Amador v Amador (2009) 43 Fam LR 268
B & B [2003] FamCA 274
B & K [2001] FamCA 880
Goode & Goode (2006) FLC 93-286
Khalil & Tahir-Ahmani (2012) FLC 93-506
Marriage of Blanch (1998) 24 Fam LR
Marriage of JG & BG (1994) 18 Fam LR 255
MRR v GR (2010) 240 CLR 461
Taylor v Taylor (1979) 143 CLR 1
U v U (2002) 211 CLR 238

APPLICANT: Ms Moncreiffe

RESPONDENT: Mr Laxton

FILE NUMBER: NCC 3374 of 2012

DATE DELIVERED: 18 July 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: AustinJ

HEARING DATE: 24 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Hamilton, Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. The applicant mother (“the mother”) shall have sole parental responsibility for the following children (“the children”):

   (a)W Moncreiffe, born in 1999;

   (b)J Moncreiffe, born in 2000; and

   (c)K Laxton, born in 2009.

2. The children shall live with the mother.

3. The parties are restrained from causing or permitting the children to spend time or communicate with the respondent father (“the father”).

4. Pursuant to s 68B of the Family Law Act1975 (Cth), the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school or pre-school attended by any of the children.

5. Leave is granted to the mother to provide a sealed copy of these orders to:

   (a)The principal of any school or pre-school attended by the children; and

   (b)The police, in circumstances of any alleged breach of Order 4 hereof by the father.

6. The Registrar of the Newcastle registry of the Court shall forthwith forward to the NSW Department of Family and Community Services:

   (a)A sealed copy of these orders;

   (b)A copy of the reasons published for the orders; and

   (c)A copy of the Family Report dated 21 March 2013.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3374 of 2012

Ms Moncreiffe

Applicant

And

Mr Laxton

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is the mother of three children.

2. The respondent is the father of only the youngest of those children.

3. The biological father of the two eldest children is deceased. He was the brother of the respondent. The two eldest children lived with the parties whilst they cohabited.

4. The parties’ cohabitation was characterised by gross family violence. Their relationship ended in August 2012 following the respondent’s arrest by police at the family home and his subsequent admission to a psychiatric facility.

5. But for one occasion several months later on which the respondent secretly arranged to meet with the second child, the children have not spent any time with the respondent since the parties’ separation.

6. The applicant seeks final parenting orders, the effect of which is to permanently eliminate the respondent from the children’s lives. Despite his awareness of the proceedings, the respondent failed to participate and did not therefore oppose the outcome sought by the applicant, which outcome was therefore inevitable.

Absence of the respondent

1. The applicant commenced these proceedings in December 2012. Her initial attempts to serve the respondent failed,[1] but were later successful.[2]

   [1] Notation A made on 20 December 2012; Mother’s affidavit, paras 92-96

   [2] Notations B-C made on 5 February 2013; Mother’s affidavit, paras 98-99

2. The respondent did not file any Response and did not appear at any Court event so the proceedings were fixed for undefended hearing on 24 June 2013. The respondent was served with the applicant’s affidavit and all interim and procedural orders of the Court. The documents were provided to his probation officer and passed on to him.[3]

   [3] Exhibit M5

3. The respondent was aware of the proposed hearing date, but he took no steps to re-list the matter to indicate his intention to participate and he failed to appear on the appointed hearing date, so the hearing proceeded in his absence.

4. The respondent was accorded procedural fairness. He cannot complain about any miscarriage of justice when he voluntarily abstained from participation in the proceedings. The court is not required to indefinitely delay a hearing merely because a party declines to appear and participate (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Applicant’s proposal and evidence

1. The applicant proposed that the Court convert the interim parenting orders, made earlier in the proceedings on 20 December 2012, into final orders. Those orders provided for her to have sole parental responsibility for the children and for the children to live with her. An injunction precluded their interaction with the respondent.

2. In support of that position the applicant relied upon her affidavit filed on 21 May 2013 and the Family Report dated 21 March 2013.[4]

   [4] Exhibit M6

3. The applicant gave some short supplementary evidence about circumstances which have changed since she filed her affidavit.

4. Neither the applicant nor the Family Consultant was cross-examined and so their unchallenged evidence is accepted as truthful and correct.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC). These proceedings were commenced on 17 December 2012 and so the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 now apply (see Schedule 1, items 44 and 45).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. The applicant has historically been the children’s primary carer. They have lived continuously with her.

2. It could hardly be doubted the children do, and will continue to, derive benefit from the meaningful relationships they each have with the applicant.

3. The respondent is not the father of the eldest two children so the nature of their relationships with him is not a consideration within the purview of s 60CC(2)(a) of the Act.

4. As for the youngest child, there is little evidence about the nature of her relationship with the respondent. The mother adduced no evidence of it and the youngest child was not observed with the respondent by the Family Consultant, since the respondent did not attend upon the Family Consultant.[5] All that can safely be inferred is that the youngest child’s relationship with the respondent is compromised, since she has not seen or heard from him for some nine months and she is still only three years of age.

   [5] Exhibit M6, paras 8, 33, 125

5. The evidence does not rationally permit a finding that the youngest child has a meaningful relationship with the respondent. Even if she does, it may be doubted that she did or will derive benefit from it.

6. The youngest child was reported to be easily startled and distressed. The applicant attributed that to her still being “very traumatised”, which I impute to be a reference to the trauma of her exposure to family violence.[6] Although the applicant does not have the expertise to reliably opine a nexus between the youngest child’s trauma and her exposure to family violence, her belief in the nexus is informative. The Family Consultant does have such expertise and was inclined to draw the nexus and furthermore explain how the child’s general development may have been compromised by her experiences.[7]

   [6] Exhibit M6, para 89

   [7] Exhibit M6, paras 128, 130

Section 60CC(2)(b)

1. The critical issue revealed in these proceedings is the need to protect the children from psychological harm they will inevitably suffer through their exposure and subjection to the respondent’s violence and aggression. Generally that conduct was directed towards the applicant, but sometimes even towards the children themselves.

2. The respondent’s violent domination of the applicant was a feature of their relationship and it was frequently witnessed by the children. The mother estimated a violent episode occurred on a weekly basis. On occasions the father needed to be quelled by police with capsicum spray and tasers. The mother’s reports of the family violence were corroborated by records of the NSW Department of Family and Community Services (“the Department”),[8] by the children,[9] and by the maternal grandparents.[10]

   [8] Exhibit M6, para 96

   [9] Exhibit M6, paras 122, 123, 127

   [10] Exhibit M6, para 65

3. Eventually the mother resolved to end the relationship. The catalyst for her decision was another incident of alarming violence. On 14 August 2012 the father was heavily intoxicated and began inflicting injuries upon his body with a knife. The police were summoned and once he was finally subdued he was conveyed to a psychiatric facility where he was treated for some months. The Family Consultant reports the hospital noted the respondent’s admission was “post homicidal ideation and suicide attempt”.[11]

   [11] Exhibit M6, para 101

4. The applicant regarded her relationship with the respondent as “definitely over” and she refused to allow the respondent to return to the family home upon his discharge from the psychiatric facility.[12]

   [12] Exhibit M6, paras 102-103

5. The respondent again attempted suicide in early November 2012 (by hanging) and in January 2013 (by suffocation) and was therefore again admitted to the psychiatric facility following those two incidents.[13]

   [13] Exhibit M6, paras 42-44, 117; Mother’s affidavit, paras 82-83

6. Apart from the respondent’s frightening and unpredictable violence, the applicant is concerned by the prospect of the respondent’s abduction of the children, which he has threatened on numerous occasions since their separation.[14]

   [14] Mother’s affidavit, para 80; Exhibit M6, para 104

7. The Department caseworkers believe “it is [not] in [the youngest child’s] best interest to have any form of contact with [the respondent]”. The caseworkers communicated that belief to the applicant and informed her that the youngest child may be removed from her care if she permits the youngest child to interact with the respondent.[15]

   [15] Exhibit M6, paras 9, 106, 118-119; Mother’s affidavit, paras 87, 91

8. The views of the Department caseworkers were endorsed by the Family Consultant, but in respect of all children not just the youngest child. The Family Consultant said “there would be a very high level of risk to the subject children and [the applicant] if they were to have any time or communication with [the respondent]”.[16]

   [16] Exhibit M6, paras 137-138

9. The applicant believes the respondent’s violent propensity is causally related to his intoxication with alcohol,[17] but that analysis is perhaps too superficial. Probably the explanation is more complicated.

   [17] Exhibit M6, paras 26, 94; Mother’s affidavit, para 78

10. The respondent experienced a disadvantaged upbringing. He witnessed gross domestic violence between his own parents and was subjected to horrific physical abuse by his mother. He ran away from home when only 12 years of age and was thereafter either homeless or living in foster care. He did not attend secondary school. The respondent’s parent’s and sister are deceased from alcohol-related illnesses and his brother (the father of the two eldest children) committed suicide.[18] The respondent’s older children from a prior relationship were placed into foster care years ago.[19]

    [18] Exhibit M6, paras 21, 36-37

    [19] Exhibit M6, paras 4, 110; Mother’s affidavit, paras 10-12

11. As might be expected in such adverse circumstances, the respondent has a very lengthy record of criminal convictions, many involving violence.[20] He was also diagnosed with “borderline personality disorder with anti-social traits, major depressive disorder, complex post traumatic stress disorder and alcohol abuse”.[21]

    [20] Exhibit M6, paras 38-39, 108; Mother’s affidavit, paras 67-73

    [21] Exhibit M6, para 44

12. The respondent’s illicit drug use extends back, on his own admission, to his early youth. However, there is no evidence to indicate whether his use of illicit drugs is current. The applicant’s speculation is not probative[22] and the respondent’s casual dismissal of the problem is not particularly comforting.[23]

    [22] Mother’s affidavit, para 79

    [23] Exhibit M6, paras 46-48

13. Similarly, the respondent’s use of alcohol extends back to his infancy, but it certainly is a current problem. Despite the unreliability of his reports, he recently admitted to consumption of more than one bottle of spirits each day.[24]

    [24] Exhibit M6, paras 45, 49-56

14. The respondent’s behaviour is likely related to the privations he has endured throughout his life, but his unfortunate history could only be an explanation for his behaviour, not a justification for it. Most importantly, there is no evidence to indicate the respondent’s acknowledgement of the complexity and depth of his problems, nor of his willingness to rehabilitate.

15. In such circumstances there is no option but to do as the Department caseworkers and Family Consultant do – assume the risk of harm posed by the respondent to the children remains as potent as ever.

16. Family violence notoriously has a pervasive effect upon children, whether they are involved directly as victims or indirectly as witnesses. It is insidious even if the children’s involvement is limited to awareness of its occurrence through a pattern of domination of one parent by another. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance, which is psychologically damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33-37]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmani (2012) FLC 93-506 at [189]).

17. The effects of such exposure are already apparent from the children’s behaviour, which is modelled upon what they have observed. The eldest child threatened to kill the second child and the second child held a knife to the eldest child’s throat.[25] The eldest child swears at school teachers and has trouble controlling his temper.[26] The second child has been so angered he has punched holes in walls.[27]

    [25] Exhibit M6, para 121

    [26] Exhibit M6, para 71

    [27] Exhibit M6, para 81

18. As the Family Consultant understandably observed, the children need a reparative environment in which to live and mature. That can only be ensured by the absence of the respondent from their lives.

Best interests of children – additional considerations

1. The applicant has the protection of an existing family violence order against the respondent.[28] Irrespective of whether the children are expressly named in the order as protected persons, their protection under the order arises from their residence with the applicant (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

   [28] Exhibit M6, paras 6, 107; Mother’s affidavit, para 88

1. The two eldest children have no wish to renew their acquaintance with the respondent.[29] I accept the Family Consultant’s opinion that their views should be given significant weight.[30] They are now aged 14 and 13 years respectively. Their relationships with the respondent are not positive.

   [29] Exhibit M6, paras 72, 85

   [30] Exhibit M6, paras 76, 86

2. The youngest child did not express any view about her living arrangements, but the Family Consultant would not have sought her views due to her tender age.[31] She is only three years of age.

   [31] Exhibit M6, para 91

3. The Family Consultant maintained some reservations about the parenting capacity of the applicant.[32] However, the applicant receives assistance from the maternal grandparents, who only live several doors away, and the children enjoy close relationships with them, so they provide a safety net of protection and support.[33] The maternal grandparents do not capitulate to the mother if they perceive the children’s best interests require them to withstand her demands, as occurred, for example, when they recently refused to send the eldest child back to live with the mother.[34] The eldest child has since voluntarily resumed residence with the applicant, but the maternal grandparents are not weak apologists for the applicant.

   [32] Exhibit M6, paras 130-136, 139

   [33] Mother’s affidavit, para 62; Exhibit M6, paras 64, 75

   [34] Exhibit M6, paras 31, 74

4. The applicant was receptive to and acted upon the recommendations of the Family Consultant,[35] which is a positive reflection upon her capacity for introspection about the need to improve her parenting performance. She consulted a domestic violence counsellor, engaged in counselling, enrolled herself to participate in the “Brighter Futures” parenting program, and arranged for the two eldest children to attend upon a psychiatrist.[36] The applicant also enrolled the two eldest children in a new school, where they are now receiving counselling.

   [35] Exhibit M6, paras 140, 147, 148

   [36] Mother’s affidavit, paras 63-66

5. The Family Consultant’s recommendations for the joinder of the maternal grandparents to the proceedings and for an order providing for at least the eldest child to live with them[37] were impossible to implement because the maternal grandparents declined to intervene in the proceedings.[38] In any event, the improvement in the applicant’s parenting capacity, as evidenced by the positive steps she has taken to solicit professional assistance for both her and the children, permits optimism about the children’s future. The eldest child’s recent decision to move back to the applicant’s home from the maternal grandparent’s home proves his perception about the improved environment afforded by the applicant.[39] The availability of the maternal grandparents to provide assistance when required is satisfactory insurance.

   [37] Exhibit M6, paras 132-133, 143-144

   [38] Notation E made on 8 April 2013

   [39] Exhibit M6, para 11; Mother’s affidavit, paras 60-61

Conclusions and orders

1. Equal shared parental responsibility cannot be allocated to the parents of the two eldest children because their father is deceased.

2. The presumption of equal shared parental responsibility in respect of the youngest child does not apply because of the clear evidence of abuse and family violence perpetrated by the respondent (s 61DA(2)).

3. The only tenable outcome is for the applicant to have sole parental responsibility for all three children.

4. That accords with the Family Consultant’s recommendation in respect of the two youngest children, but not the eldest child.[40] The Family Consultant’s recommendation in respect of the eldest child was influenced though by her recommendation for the child to live with the maternal grandparents, with whom he was living at the time the Family Report was compiled,[41] but no parental responsibility for any of the children could be allocated to the maternal grandparents when they were not parties to the proceedings.

   [40] Exhibit M6, paras 142, 144

   [41] Exhibit M6, para 144

5. Since sole parental responsibility for all children is allocated to the applicant, there is no need to follow the path dictated by s 65DAA of the Act. Rather, the parenting arrangements for the children are determined by considerations affecting their best interests.

6. It is recognised as self-evidently true that, apart from cases of abusive relationships, children generally benefit from the development of good relationships with both parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act (see U v U (2002) 211 CLR 238 at 285-286). However, this is a case in which the pre-eminent consideration is protection of the youngest child, and her siblings, from the risk of harm posed by the respondent.

7. The evidence demands a finding that the children’s best interests require them to live with the applicant and not to interact with the respondent at all for the foreseeable future, which conclusion accords with the opinion of the Family Consultant.[42]

   [42] Exhibit M6, para 145

8. The Family Consultant recommended the children instead live with the maternal grandparents if the applicant wavers and renews her relationship with the respondent or fails to comply with orders.[43] The applicant did not challenge the Family Consultant about the efficacy of that opinion, but it is impossible for the Court to make a prescriptive self-executing order to that effect on the available evidence. Nevertheless, to guard against the prospect of that eventuality an injunction is made prohibiting the applicant from causing or allowing the children to spend any time or to communicate with the respondent.

   [43] Exhibit M6, para 146

9. An additional injunction is made precluding the respondent from attending at the applicant’s home and the children’s schools.

10. The applicant is granted leave to provide a copy of the orders to the principals of the children’s schools and also to the police in the event the respondent violates the injunction.

11. An order is made requiring the registrar to provide to the Department copies of the orders, the reasons for the orders, and the Family Report. That order fulfils the Family Consultant’s recommendation[44] in a more comprehensive way.

    [44] Exhibit M6, para 150

12. The orders set out at the commencement of these reasons reflect the children’s best interests.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 July 2013.

Associate: 

Date:  18 July 2013