Morley and Risdale
[2018] FamCA 940
•16 November 2018
FAMILY COURT OF AUSTRALIA
| MORLEY & RISDALE | [2018] FamCA 940 |
| FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at Court event and Notice of Ceasing to Act filed by his solicitors – Where appropriate that matter proceed on an undefended basis – Where the mother suffers from post-traumatic stress disorder – Where the child has sensory processing disorder and autism – Where consideration of child’s best interests – Where orders are made as sought by the mother and supported by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Farmer & Rogers [2010] FamCAFC 253 Goode and Goode (2006) FLC 93-286 In the Marriage of George and Radford (1976) FLC 90-060 Jarrah & Fadel [2014] FamCAFC 14 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 Reynolds & Sherman [2016] FamCAFC 240 |
| APPLICANT: | Mr Morley |
| RESPONDENT: | Ms Risdale |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Soliman |
| FILE NUMBER: | PAC | 4259 | of | 2013 |
| DATE DELIVERED: | 16 November 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 10 September 2018 |
REPRESENTATION
THE APPLICANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Ghobrial Legal |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That mother have sole parental responsibility for the child X born … 2013 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as agreed and in default of agreement as follows:
(a) Each alternate Saturday from 9.30 am to 1.30 pm;
(b) Commencing in 2019
(i)Each alternate Saturday from 9.30 am to 2.30 pm;
(c) Commencing in 2020
(i)Each alternate Saturday from 9.30 am to 3.30 pm;
(d) Commencing in 2021
(i)Each alternate Saturday from 9.30 am to 4.30 pm;
(e) Commencing in 2022
(i)Each alternate Saturday from 9.30 am to 4.30 pm;
(ii)Each other Saturday from 10.00 am Saturday to 10.00 am Sunday;
(f) Commencing in 2023
(i)Each alternate weekend from 10.00 am Saturday to 10.00 am Sunday.
Specific occasions:
(a)That the child’s time with the father is suspended on the Mother’s Day weekend;
(b)That on Father’s Day the child will spend time with the father for a period of three hours;
(c)That if the father’s birthday falls on a school day the child will spend two hours with the father after school at a time agreed between the parties;
(d)That if the father’s birthday falls on a weekend the child will spend time with the father for a period of three hours if the child is not, otherwise, spending time with him;
(e) On Easter Sunday the child shall spend three hours with the father;
(f) On Christmas Day the child shall spend three hours with the father;
(g)During Terms 1, 2 and 3 of the NSW gazetted school holidays the child’s time with the father shall be suspended for the first week of each holiday period;
(h)During the Christmas school holiday period the child’s time with the father shall be suspended for the first two weeks immediately after Christmas Day and up until 8 January each year.
That if the child is invited to parties or has sporting events both parties are to ensure the child has the opportunity for full participation with the party who is spending time with the child being responsible to assist the child in attending these events.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morley & Risdale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC4259 of 2013
| Mr Morley |
Applicant
And
| Ms Risdale |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by the applicant father by Initiating Application filed 5 November 2013.
The application concerns five year old X (“the child”).
The father has three children from a previous relationship: 17 year old W, 11 year old Y and nine year old Z.
The mother has a child from a previous relationship: 15 year old V.
Context
The parties commenced a relationship in May 2012 and separated shortly after the birth of the child in 2013.
In the months following separation the father spent time with the child for short periods of time, as agreed between the parties.
The parties signed interim consent orders in December 2013 for the father to spend two hours per week with the child to be supervised by members of the maternal family. After four weeks the father’s time was graduated to unsupervised time.
In 2016 the child was diagnosed with sensory processing disorder and more recently has been diagnosed as having Autism Spectrum Disorder.
The child currently spends time with the father each alternate Friday from 1.00 pm to 5.00 pm and each alternate Saturday thereafter from 9.00 am to 4.00 pm in accordance with the interim consent orders made on 15 March 2018.
The proceedings
On 9 December 2013 the Court made interim consent orders for the father to spend time with the child for two hours per week to be supervised by members of the maternal family. After four weeks the father’s time was graduated to unsupervised time.
On 13 February 2014 the parties attended upon a Family Consultant for the purposes of participating in the Child Responsive Program.
On 10 March 2014 the interim orders were varied so that the child’s time with the father would be supervised by a nominated contact centre and orders were made appointing an Independent Children’s Lawyer (“ICL”).
On 29 April 2014 the parties entered into consent orders for the appointment of a single expert witness, Dr B to prepare a report in these proceedings and trial directions were made. Dr B’s report was received in August 2014.
On 23 March 2015 the father attended in person and trial dates were confirmed.
On 20 April 2015 the matter was listed for a final hearing. On the first day of the final hearing interim consent orders were made in summary:
a)For the mother to have sole parental responsibility;
b)For the child to live with the mother and the child to spend time with the father for two hours each week, with orders for the time to increase each six months until January 2017 when the father would spend four hours each Tuesday with the child, and each alternate Friday from 11.00 am to 3.00 pm and each alternate Saturday from 9.00 am to 4.00 pm;
c)Proceedings were adjourned for judicial case management to 6 February 2017.
On 6 February 2017 there was no appearance by or on behalf of the father and the matter was adjourned to 16 May 2017 on the basis that in default of the father’s appearance directions would be made for the mother’s application to proceed to an undefended final hearing.
On 16 May 2017 the father attended in person and orders were made for the preparation of an updating Family Report. The updating Family Report was released to the parties in late January 2018
On 15 March 2018 the parties entered into further interim consent orders that the child spend time with the father on nominated dates and from 22 June 2018 onwards each alternate Friday from 1.00 pm to 5.00 pm and each alternate Saturday thereafter from 9.00 am to 4.00 pm. It was also noted that the parties would undertake COMP mediation to try and resolve the matter. The matter did not resolve.
On 22 May 2018 the Court made further trial directions.
On 23 August 2018 there was no appearance by or on behalf of the father at the Registrar’s Compliance Check and had not complied with the trial directions as to the filing of his affidavit material.
On 10 September 2018 the there was no appearance by or on behalf of the father. It was noted that his previous solicitors had file a Notice of Ceasing to Act. The father had been informed of the listing date by the mother’s solicitors and he had been served with the mother’s Amended Response and trial Affidavit.
The matter proceeded to an undefended hearing.
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.
(3)…
In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother and father’s involvement and leave uncertain the circumstances of the children.
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 Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
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 who has briefed, at cost to the taxpayers, Counsel.
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the case presently for consideration.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197.In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; e.g. it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
The Court was satisfied that all appropriate attempts had been made to notify the father and that he had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis.
The mother’s documents
The mother relied upon the following documents:
a)Her Amended Response to Initiating Application filed 17 August 2018.
b)Her affidavits filed 20 April 2015 and 23 August 2018.
The mother sought orders, in summary, as follows:
(1) That she have sole parental responsibility for the child.
(2) That the child live with her.
(3) That the child spend time with the father as follows:
(a)Saturday fortnightly from 9.30 am to 1.30 pm;
(b)Beginning in 2019,
(i)Each alternate Saturday from 9.30 am to 2.30 pm;
(c)Beginning in 2020,
(i)Saturday fortnightly from 9.30 am to 3.30 pm;
(d)Beginning in 2021
(i)Saturday fortnightly from 9.30 am to 4.30 pm;
(e)Beginning in 2022
(i)Saturday fortnightly from 9.30 am to 4.30 pm;
(ii)And alternate to the weekend noted in 3(e)(i) Saturday 10.00 am to Sunday 10.00 am;
(f)Beginning in 2023
(i)Each alternate Saturday from 10.00 am to Sunday 10.00 am.
(4) Special occasions
(a)Mother’s Day – father’s time is suspended should this time correspond on Mother’s Day;
(b)Father’s Day – each year the father will spend time with the child on the Sunday for a period of three hours – to be agreed between the parties;
(c)Father’s birthday – if it falls on a school day the father will spend two hours with the child after school between the hours as agreed by the parties. If it falls on a weekend the father will spend time with the child for a period of three hours;
(d)Good Friday to Easter Sunday; Easter weekend – the child will spend three hours with the father on Easter Sunday;
(e)Christmas – the father will spend time three hours with the child on Christmas Day;
(f)School holidays – father’s time suspended on the first week of each school holiday period;
(g)The father’s time shall be further suspended for the first two weeks immediately after Christmas up until 8 January each year;
(h)If the child is participating in sporting events or invited to parties while in each parent’s care, the parent is responsible for ensuring the child fully participates in that activity.
The evidence
The mother, who is 43 and the father, who is 41 met on an internet dating website in February 2012 and commenced a relationship in May 2012.
The father moved into the mother’s home and his three daughters from a previous relationship would frequently spend time with him there. The mother had a child, V aged 10 from an earlier relationship.
On 23 April 2013 the mother became aware that the father’s daughters from a previous relationship had found naked photos of the father on the father’s iPad and they had shown them to the child V. This had caused the mother to be very concerned that the children had been exposed to inappropriate images. The father has since denied the existence of these images.
During the course of their relationship the mother asserts that the father treated V more harshly than he did his own children.
On 11 June 2013 while heavily pregnant with the child, the father sexually assaulted the mother by forcibly having sex with her despite being repeatedly asked to stop.
The parties’ child X was born in 2013.
Four weeks after giving birth the father again sexually assaulted the mother by having sex with her without her consent.
In the weeks following the birth of the child, the mother became depressed and exhausted from the pressures of looking after a new baby, her 11 year old daughter and the father’s three daughters who frequently stayed in the home.
On 25 July 2013 the parties’ separated on a final basis when the mother asked the father to leave her home.
Following separation the mother contacted the Police and discussed her fear of the father. The police referred her to a Domestic Violence Support Officer who advised the mother to not be alone. The mother also attended upon a rape crisis counsellor for therapy and has been diagnosed with Post-Traumatic Stress Disorder, depression and anxiety.
On 25 January 2014 the father was spending time with the child in the home of the maternal grandparents in accordance with the interim consent orders of 9 December 2013. While in the father’s care the child began crying uncontrollably.
When the child returned to the mother’s care she noticed red swelling and a bruise on the child’s head. She took the child to the doctor who said that it appeared that the child had hit his head on something hard. The father denied any knowledge of the injury and this gave the mother serious concerns regarding the child’s welfare in the father’s care. She made a report to the Department of Family and Community Services (“the department”) and ceased making the child available to the father until interim orders were made in March 2014.
Following the March 2014 interim orders the father and the child spent regular time with each other at a contact centre.
Following the March 2018 interim consent orders the child has shown trepidation and anxiety when anticipating spending time with his father. The child is attending occupational therapy sessions due to his autism and sensory processing disorder. The occupational therapist has been working with the child to assist him in adjusting to spending time with the father without the mother present. The child is also attending upon a child psychologist.
In May 2018 the child became so distressed before a visit with the father that he began hitting, screaming, throwing objects and head butting the wall.
In June 2018 following a visit with the father the child became very distressed, he cried and told the mother he did not want to spend time with the father anymore. He also wet the bed and would not leave the house on the following day.
In July 2018 there was an incident in which the child became emotional and angry in an appointment with the occupational therapist insisting that he did not want to see his dad. He began hitting his grandmother and vomiting. As a result the mother cancelled the child’s next visit with the father.
More recently the child has had positive interactions with the father and has reported to the mother that he had fun and appeared happy following visits. The orders sought by the mother seek an appropriate cautious progression of the child’s time with the father.
The Expert Report
In July and August 2014 the parties, the children and the maternal and paternal grandparents were interviewed by Dr B (“the expert”), a child, family and adult psychologist for the purposes of the preparation of a Single Expert Report.
In his Report dated 13 August 2014 the Expert made the following comments about the mother:
[The mother] was seen to have prioritised her children’s developmental experience. She was reassured after observing the child’s evident delight and comfort in the care of his father. She was motivated to support the child’s relationship with his father, yet was anxious and hypervigilant given her alleged experience of abuse.
In his Report the Expert made the following comments about the father:
[The father] was observed to have excellent parenting skills in the observed interactions with his son, the child. He was seen to be highly attuned the child’s experience, responding in a thoughtful and appropriate manner during the three hours of observed interactions… there was no evidence of a significant Psychiatric Disorder or Personality Disorder.
…
Questions were raised with regard to the father’s ability to prioritise the children’s developmental needs. It was evident that he had failed to protect them from exposure to inappropriate material accessed via his iPad photo collection. There was no indication that he had done so in a purposeful manner. … I did not form the view that the father had placed the children at risk or was likely to do so in the future.
The Family Report
Due to the elapsed time between the preparation of the Expert Report and the proceedings being listed for a final hearing a Family Report was ordered by the Court. On 10 November 2017 the parties, the maternal grandmother and the child attended upon a Family Consultant for the purposes of the preparation of a Family Report.
In her Report dated 16 January 2018 the Family Consultant made the following comments about the child:
[The child’s] attitude to [the father] and to [Z] and [Y] appeared ambivalent. On one hand, he was heard to growl when he saw them; on the other hand he settled to play quickly and happily with both [the father] and then [Z] and [Y] when they entered the room. [the mother’s] and [the maternal grandmother’s] account suggest that the child’s behaviour alters significantly both before and after visiting [the father] such that he appears significantly distressed. There are a number of possibilities surrounding this apparent contradiction.
One possibility may lie in the child’s Autism Spectrum Disorder diagnosis. While [the father] has requested a second opinion on this point, it may be that the child is more susceptible to any change in his usual arrangements than neurotypical children and that the process of change is anxiety provoking for him. [The mother] indicated that she has attempted to provide visual supports around the child’s visits to [the father] and that she has tried to give him as much predictability as possible, however the shift from one home to another may be extremely difficult for [the child]. If this were the case, then measures to minimise the possibility of anxiety for the child may be necessary. These measures could include spending time with [the father] in a setting which is both inviting for [the child] and which minimises any anxiety he may experience.
Another possibility may be that [the child] is highly attuned to [the mother’s] distress around her relationship with [the father]. It also appears that [the maternal grandmother] and [the maternal grandfather] do not entertain a positive attitude towards [the father], and the child may be experiencing contradictory parental perspectives so that he is unable to cope with the loyalty conflicts involved. This situation would constitute a risk to the child and is correlated with an increased likelihood of psychological and behavioural difficulties later in life. Likely responses from the child may be a resistance to spending time with one parent and a possible tendency to perceive the situation in ‘black and white’ terms. This tendency may be further exacerbated if he has ASD.
Yet another possibility may be that [the father] is not able to support the child in a way which allows him to feel comfortable when he is spending time with him. The child certainly appeared less than enthusiastic in approaching [the father] and his interactions with [the father], while engaged, were not as animated as those with [the mother]. However, [the father] appeared able to respond to [the child] in a child-focussed manner that was responsive to his cues.
As to the father the Family Consultant opined:
There were no significant concerns identified about [the father’s] general capacity to appropriately meet [the child’s] needs; however arrangements which involve substantial time with each parent may be contra-indicated in situations of high parental conflict or fearfulness on the part of one parent. …
[The father] denied any safety issues for [the child] when he is with him. He said that the child appears happy and playful in his company and he would never do anything to jeopardize his safety. When [the father] was asked about allegations of exposure of children to nude pictures of him he said that “the kids didn’t see anything because there was nothing to see.”
When [the father] was asked about any reluctance to spend time with him on [the child’s] part, he said that the child always appeared happy to be with him and that he did not believe that [the child] was being traumatised by spending time with him.
As to the mother the Family Consultant opined:
[The mother] became very emotional when asked questions regarding family violence. She found it difficult to speak and eventually said that “he never hit me.” [The mother] said that [the father] was “very controlling” in that he stopped her from seeing friends and family by being critical of them and telling her that none of them liked him. …
[The mother] said that she does not have a clear understanding of why she is frightened of [the father] but thinks that she may have “a lot of the signs of Aspergers” herself which heightens her anxiety around situations. She said that she does not trust [the father] and that [the child’s] reactions to seeing [the father], and his behaviour after seeing [the father], have supported this feeling….
[The mother’s] presenting emotional state and mental health issues were likely exacerbated by the requirement to discuss past difficulties during the assessment, however they may impact on [the child] in terms of the development of his emotional resilience and his ability to enjoy his relationship with [the father]. Children can become acutely sensitive to their principal caregiver’s emotions and this can lead to a situation where they feel obliged to ‘protect’ this person by ensuring that a situation which causes them to feel distress is avoided. It may assist [the mother] if she were to engage with a therapist who is experienced in assisting parents in her situation.
As to the parents’ co-parenting relationship the Family Consultant states:
[The mother’s] account of her experience of violence and conflict in the relationship, if shown to have veracity, would make it extremely difficult for her to trust [the father] and maintain a co-parenting relationship with him. The exercise of shared parental responsibility, in the face of this mistrust, may only serve to increase conflict between the parents and would not be in [the child’s] best interest. Even if violence is not found to have occurred, the capacity of [the mother] to participate in joint decision-making with [the father] is in doubt. Her perceptions of criticism by [the father] and her interpretation of the child’s responses would make it difficult for her to maintain the relationship required for shared parental responsibility. Given the apparent lack of trust or ability to communicate between the parties, then sole parental responsibility may be the most viable arrangement.
Parenting
What are the relevant matters in determining the child’s best interests?
The relevant principles in relation to parenting and interim 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.
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.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
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…
It is readily apparent that the child’s ongoing relationship with the mother as his primary carer is important, significant and valuable.
The Family Consultant observed that the child experienced significant distress before and after spending time with the father. However, when the child was observed with the father the child engaged quickly and happily with the father in play. Both the Family Consultant and Expert opined that the father was child focused in his approach to his son. The orders sought by the mother will ensure that the child receives the benefit of a continued meaningful relationship with the father.
Section 60CC(2)(b) – need to protect
There is some concern regarding risk to the child in the father’s care. He failed to protect his children from a previous relationship from exposure to inappropriate images on his iPad. There is nothing to suggest that this was a deliberate act and it is unlikely to pose a risk to the child.
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);
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.
The child has expressed negative views of the father to the Family Consultant. Given the age of the child, his autism spectrum disorder and the fact that he was observed to happily play with the father, his views should be given little weight.
The child has had regular time with his father since the parties’ separation when he was just six weeks old. Although the child has demonstrated heightened anxiety and distress before and after spending time with the father, the family consultant observed a positive and warm relationship between the child and the father.
The child’s relationship with the mother is a strong and positive one. The mother has been the child’s primary caregiver since birth. Although the mother suffers from PTSD and anxiety related to the father she has attempted to protect the child from her negative views by engaging him with a psychologist and occupational therapy.
Until recently, when the father disengaged from proceedings, the father has consistently sought orders that would facilitate him spending time with the child. The father has demonstrated a reasonably positive attitude to the responsibilities of parenthood. He has attempted to work cooperatively with the mother to ease the child’s anxiety and distress when in the father’s care.
The father currently pays $137.03 in child support per fortnight. He is currently $427.16 in arrears.
The parties have entrenched conflict and there has been an irrevocable loss of trust between the mother and the father, as a result of the father’s sexual abuse of the mother. The Family Consultant is of the view, which the Court accepts, that the parties do not have the capacity to share parental responsibility. Any attempt at joint decision making would increase the conflict between the parties and may have a detrimental effect on the child. As the child will live with the mother it is in his best interests that the mother have sole parental responsibility.
The orders sought by the mother will not, see a significant change in the child’s circumstances. The child’s time with the father will initially be reduced and will gradually increase over the next five years until the child is spending overnight time with the father. The gradual increase in the father’s time with the child is in accordance with the recommendations of the Family Consultant and entirely appropriate given the child’s complicated needs related to his autism diagnosis. There is no practical difficulty or expense associated with those orders.
The father’s behaviour, particularly his perpetrating of sexual abuse against the mother, raises concerns about his capacity to care for the child. Despite this the Family Consultant did not hold concerns regarding the father’s parenting capacity and ability to meet the child’s complex needs. Any potential risks posed by the father can be mitigated by the fact that his time with the child is restricted and will only increase very gradually.
All of the aforementioned relevant considerations are indicative of orders being made in the best interests of the child as sought by the mother.
Orders will accordingly be made as set out at the forefront of these reasons for judgment.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 16 November 2018.
Associate:
Date: 16 November 2018
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