MORRISH & LUKESON

[2019] FamCA 239

FAMILY COURT OF AUSTRALIA

MORRISH & LUKESON [2019] FamCA 239

FAMILY LAW – CHILDREN – Final hearing – Undefended – With whom a child lives and spends time – Where the father has not participated in the proceedings – Where it is alleged that the father has perpetrated extensive family violence upon the mother – Where the children have been witness to incidents of family violence – Where the mother seeks that there be no orders for time between the children and the father – Where the children have not seen the father since April 2016 – Where the Independent Children’s Lawyer supports the finalisation of the proceedings – Orders made.

Family Law Act 1975 (Cth) ss60B, 60B(2), 60B(3), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 61DA(4)

Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-655
Sigley & Evor [2011] FamCAFC 22
Vasser & Taylor-Black (2007) FLC 93-329

APPLICANT: Mr Morrish

RESPONDENT: Ms Lukeson

INDEPENDENT CHILDREN’S LAWYER: Storey and Associates

FILE NUMBER: DNC 229 of 2017

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Barry

SOLICITOR FOR THE RESPONDENT: Darwin Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Holtham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Storey & Associates

Orders

1. That the mother have sole parental responsibility for the children X born … 2009 and Y born … 2011 (collectively “the children”).

2. That the children live with the mother.

3. That each parent shall immediately notify the other of any serious illness or injury or any other emergency involving the children, when the children are in their care.

4. That the mother is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the children X born … 2009 and Y born … 2011 and she shall exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 and the requirements of the Commonwealth Department of Foreign Affairs and Trade.

5. That a copy of these Orders will be provided to the Australian Passport Office and Foreign Affairs and Travel.

6. That the mother will be solely responsible for the costs of the children’s passport applications or VISA documents (if required).

7. The appointment of the Independent Children’s Lawyer be discharged.

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 Morrish & Lukeson 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 ADELAIDE

FILE NUMBER: DNC 229 of 2017

Mr Morrish

Applicant

And

Ms Lukeson

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The proceedings between Mr Morrish (“the father”) and Ms Lukeson (“the mother”) relate to the future parenting arrangements for X born … 2009 and Y born … 2011 (collectively “the children”).

2. The matter was first brought in Western Australia in December 2016 by the father and the Initiating Application was then transferred to the Federal Circuit Court of Australia (“FCC”) Darwin Registry on 22 May 2017.

3. The father has not engaged fulsomely in the matter. He has not filed any affidavit material to respond to the serious allegations of family violence made by the mother.

4. The matter was listed on 23 January 2019. There was no appearance by the father. The matter was then listed for a first day hearing on 11 April 2019.

5. The father did not attend the first day hearing on 11 April 2019 and in circumstances where the father has not engaged in the proceedings and there is a high level of urgency in relation to child protection I considered striking out the father’s initiating application and proceeding on an undefended basis.

6. The question was then whether to proceed to finality on 11 April 2019 or adjourn the matter for a short period to enable updated affidavit material to be filed.

7. I canvassed with counsel for the mother whether she wishes to provide updated trial affidavit material following the release of the family report. The mother is content to rely on two affidavits being the affidavits filed by the mother on 6 July 2017 and 21 August 2018.

8. The father had not spent time with the children since approximately April 2016. Counsel for the mother considered the circumstances as outlined in the two affidavits comprehensively addressed the matter.

9. The mother proposed that the matter could be dealt with on the basis of those affidavits and the family report. An oral application was made to expand the orders sought by the mother to include an order that the mother be able to apply for passports for the children without reference to the father.

10. The Independent Children’s Lawyer also sought that the matter be dealt with to finality.

11. Judgment was reserved at the conclusion of the hearing.

Background

1. The father was born in 1984. He is employed on a week on and week off basis in the mining industry in Western Australia.

2. The mother was born in 1988. She is employed as a public servant in the Northern Territory.

3. The parties were in an “on and off relationship” from 2006 until January 2016 when they separated on a final basis.

4. The mother says that separation occurred following a phone call where the father told her “get out of the house and leave before I return or I will kill you in front of the children”. He accused the mother of having an affair.

5. The mother and the children moved to Darwin in January 2016. The father would fly to Darwin to spend time with the children but the visits ceased as of April 2016 and he has not seen the children since that time.

6. The mother says the children were resistant to spending time with the father and would say things such as “mum I don’t want to see dad I’m too scared”.

7. Following six months of harassing telephone and text message communications the mother applied for and obtained a restraining order against the father on 29 July 2016.

8. The father initially commenced proceedings in Western Australia. Interim orders were made that the parties complete an induction at B Group so that the father could spend supervised time with the children. The matter was then transferred to the FCC in Darwin.

9. The parties completed the induction process, however visits did not proceed between the father and the children due to the reaction of the children.

Allegations with respect to family violence

1. During the course of the relationship the mother says the father “perpetrated highly violent acts against [her], often in front of the children.”

2. In January 2016 the parties separated following a phone call to the mother from the father in which he threatened to kill her in front of the children.

3. She details four incidents in her affidavit that she remembers “most clearly” and says there were “half a dozen or so other major violent incidents during the relationship.”

4. The mother recalls in her 6 June 2017 affidavit:

   14.In late 2015 when we were living in Perth, I went to the circus with [the father] and the kids. [The father] was tired and cranky, so we left the circus early, before the show had finished. We argued on the way home, I was upset about leaving the circus early, and said “why don’t you let us do anything fun together”. I was driving.

   a.When we pulled into the driveway at home, [the father] grabbed my hair and used it to bash my head on the steering wheel and gearstick of the car. He did this numerous times. The children were in the back of the car. [Y] was screaming. I was screaming to and [the father] was yelling at me, but I can’t remember what he yelled at me. At one point I grabbed him by the testicles, that I didn’t get a good enough grip and he kept bashing my head. Eventually he got out and I reversed out of the driveway, [the father] picked up a rock and threw it towards the car. …

   b. When I eventually returned home with the kids a few hours later, [the father] yelled and screamed at me in front of the kids, and slapped me across the face so hard it knocked me off balance and I fell sideways, after which [the father] stood over me and pushed and poked me. The children yelled and screamed “daddy stop it”. [The father] then stopped pushing and poking me but turned around and punched the door very hard, putting a hole in it. … I grabbed the kids and we took off again in the car for a couple of hours. The children were shaking and crying uncontrollably for half an hour or an hour until they fell asleep in the car. …

   …

   16. In Perth in November 2013 I was nightclubbing with [the father] and a friend. On the way home [the father] called me a slut. [The father] was driving. Whilst driving along, [the father] punched me in the side of the head. He then pulled over, and I jumped out of the car. [The father] got out of the car too and pushed me hard. I had had a few drinks, and I fell over, grazing and bruising one side of my body. Whilst I was down, [the father] kicked me in the rips (sic), causing further bruising. After I got up, [the father] slapped me across the face and punched me in the eye. On that occasion I got a bruised eye, busted lip, and I had marks around my neck and bruised ribs. The next day I was so badly bruised I could hardly walk – my ankle and kne (sic) on one leg was very badly bruised and swollen. I was working at the [Organisation D] at the time, and I had to take a week off work because I was so sore and immobile. 

5. In addition to incidents of physical violence, the mother recalls that the father would often subject her to emotional abuse and harassment. He would say things to the mother to the effect “you are a whore / dog / cunt / slut” and “you are fat and look like a whale with cellulite” and said these things in front of the children.

6. The father would tell her “if we separate I will take the kids off you, and you will never see them again”. The mother experiences an emotional reaction when she recalls the threats to take away the children.

7. The mother details some of the alleged abuse in her 6 June 2017 affidavit:

   24. [The father] would frequently be in a very bad mood, and lose control of his temper, often in front of the children. This would often happen a couple of times a week. Sometimes this would lead to [the father] being violent and / or smashing things, on other occasions he would yell loudly and me and / or the kids, terrifying us. He would often yell at the kids if they didn’t do what he asked. He would also often yell at the kids for leaving their toys around.

   25.[The father] would also constantly look at my mobile phone to see who I had been talking to, and question me about what I was doing and who my friends were. He would constantly test message me, and ask me who I was seeing. [The father] always earned more money than me, and he would control our money. Often he would not let me buy food without getting his permission, I often had to ask for his permission to drive the car, and I had to ask his permission to leave the house, or go out to activities such as the circus. If I upset him he would often threaten not to buy food, pay the rent or pay bills.

8. The children were often exposed to the verbal, emotional and physical abuse of the mother by the father.

9. The father filed an affidavit on 27 July 2018 in which he denied the allegations of family violence and asserted that the parties “argue like any normal couple would”.

10. The mother’s affidavit filed 21 August 2018 was made to “provide further evidence of [the father’s] violence.” A brief extract from her affidavit follows:

    9. On 18 June 2014 [the father] text messaged me “you fuckin wait til you get home slut face ….. I’m gonna break a chair on ur back wen you get here cunt” …

    …

    11. Around September 2014, [the father] text messaged me “Im telling you now im not gonna be nice wen I get home tonight ah.. everything going into bin tonight [Ms Lukeson] no one no one sleep im telling you know”…

    12. In 2014 [the father] text messaged me “… Cuse if u come running to me for held I will slap tha shit out of u true god im not paying for ne more bills. Now open ur mouth [for oral sex] bitch”.

    …

    18. On 10 January 2016, [the father] text messaged me “… wait til I get home cunt im gonna break my fist on ur face you wait cunt…. u go [Ms E’s] place or visit them again ur dead I swear on my life”…

    19. The following day on 10 January 2016, [the father] text messaged me “… when I ge hme [Ms Lukeson] I really lose it this time I won’t hold back my temper till see blood …. im shaking fuel with anger righ this msg I … … when get in ill kick ur head unconscious until till I see you shaking in a fit stage. You’ll see cunt”.

11. The mother maintains that she had to ask the father’s permission to leave the house, drive the car or go out to do activities. In her affidavit filed 21 August 2018 she says:

    25. Around October 2014 [the father] text messaged me “Walk to work tomorrow [Ms Lukeson]. I find out u use my car tomorrow ill kill u true god...” … On that same day I received 4 messages in a row “Don’t use my car today walk to work [Ms Lukeson]”, “don’t fucking use my car [Ms Lukeson] I mean it. Tell nums to pick u up ugly cunt.”, “… Tell her to pay rent to cunt. An use her car slut.”, “Don’t fucking use my car cunt walk to work ah.” …

12. The mother says that the father never hit the children. The father would yell at the children when he became upset and would should things at the children such as “you cunts shut the fuck up”.

13. The mother says that there were times when the father would display remorse and admit his behaviour, both by text message and verbally. The mother told the father that the children were scared of him. She told the father he was abusive and that he had hurt her. He replied “I can change”.

14. The abusive text messages continued well past separation and were in part what prompted the mother to apply for a restraining order in 2016.  

15. On 27 August 2018 Judge Young ordered the father to file an affidavit in response to the mothers affidavit filed 21 August 2018 with specific focus on the allegations of family violence and the veracity of the text messages annexed to the affidavit.

16. The father did file an affidavit, but it was not responsive to the issues.

17. On 19 November 2018 Judge Young ordered:

    6. That within seven (7) days of the date of this order the father comply with paragraph 18 of the orders made on 27 August 2018 and file and serve an affidavit in response to the mother’s affidavit filed on 21 August 2018 specially addressing the allegations of family violence and whether the text messages annexed to the affidavit are authentic.

18. On 19 December 2019 the father’s solicitor filed a notice of ceasing to act. The notice contained the next hearing date for the matter, being 23 January 2019.

19. The father did not appear at the 23 January 2019 hearing. The matter was adjourned to 11 April 2019 for a first day hearing.

20. The father did not comply with the orders requiring him to file an affidavit responsive to the issue of family violence or the abusive text messages.

The family assessment report

1. The family report was completed and released on 16 November 2018

2. The family consultant interviewed the mother and the children in person and the father by telephone. Observation of the mother’s interactions with the two children were conducted.

3. The parties’ characterisations of their relationship were at odds:

   10.[The mother] described a volatile relationship between her and [the father] that was fuelled by family violence. [The father] described a positive relationship for the most part of the ten years they were together and stated that the reason for the separation in his view was that he worked away from home, and that [the mother] struggled with the distant relationship.

4. The mother was concerned about the emotional wellbeing of the children if required to spend time with the father. The father described the mother as “a good mother” and said “I can’t fault her or say a bad word about her parenting skills”. He was concerned that the mother would not encourage or facilitate a relationship between him and the children.

5. X was nine years old at the time of the assessment. He presented as an “anxious and nervous” child. He did not want to speak to the family consultant alone and would not agree to be interviewed. He agreed to speak with the mother present, which resulted in a limited scope for the interview.

6. He sat close to the mother and would smile and speak to the family consultant about general things such as sports, his mother and his brother. He likes basketball and football.

7. His wish for his family is “to have mum and my brother”.

8. The family consultant attempted to ask X questions about his family:

   51.When I started to ask any questions about his family [X] became upset and he stated “I don’t want to be here” and he described the Court as a “scary place” and then he started to cry. Due to [X’s] emotional presentation I asked a few questions to explore why he was upset, however, he could not elaborate on why he was upset and he did not discuss anything with me that made him feel scared or worried.

9. The mother described X as “he’s a nut” and a child who is “intelligent, but at times lacks common sense”. He loves sports and enjoys basketball and football.

10. The father considered that the mother was controlling of the time he spent with the children and that he was prevented from “establishing a close bond” with them. He described X as a “very bright young fella” and a “very smart boy”.

11. Y was seven years old at the time of interview and also requested to have the mother present for the interview. He did not know why he was meeting the family consultant.

12. Y does not remember when his parents lived together but knows he last saw his father when he was four years old.

13. The mother described Y as a “silly child”, “bubbly” and a “prankster”. In contrast to X’s experience, the mother said that Y:

    [W]as raised in a “loving home” in comparison to [X’s] early childhood experiences and she said that Y has been able to enjoy socialising at School, and he makes friends easily. She also said he expresses his emotions and she hugs him when he needs comfort. … 

14. During the formal and informal interactions between the mother and the children the family consultant observed a “strong bond between them”.

15. The father is recorded at [65] of the report:

    [The father] stated that he does not know what the children are like now, and he stated that he used to love being greeted by the children when he returned home from work. He said that he has no knowledge of what the children have done in the past two years and he does not know what they look like.

16. Neither child spoke about the paternal family. The mother advised that the children have visited their paternal family in Queensland on one occasion.

17. The family consultant “was concerned about X’s presentation when discussing the court matter”. It was the family consultant’s view that “it is important to ascertain if a relationship with the father is in [the children’s] best interests and if it is possible to establish a relationship with the father.”

1. The family consultant succinctly highlighted the major difficulties in this matter:

   73.In my view the geographical distance between the parents is a major barrier to re-introducing the father to the children. However, the father has attended the [B Group] contact centre and made this effort, but the contact was not facilitated due to the children’s reaction. [X], in particular presented as extremely anxious during interview. This could be symptomatic of early years of trauma from witnessing family violence, which is the view of [the mother]. The mother’s account made distinctions between the children’s childhood experiences, and to me [Y] did present, as the mother stated, as the more resilient child and he had no real memories of his father or associated fear. [X] did not articulate what he was upset or anxious about, but he was visibly upset when I asked any questions about why he was meeting me. His emotional responses meant that I was not able to explore any feelings around his relationship with his father or memories of his father.

2. The report was limited due to the father’s non-attendance, “however if the father had attended … it is unlikely that an observation could have been completed, as the children would not speak to me alone”.

3. The family consultant considered the greatest limitation was that “the children were not able to express their views, wishes or fears about the father” making it difficult for the family consultant to assess a way to facilitate contact between the children and the father.

4. The family consultant made the following recommendations

   ·The children continue to live with the mother.

   ·The mother arrange for the father to have photographs of the children.

   ·Therapeutic support is provided for the children, to establish a relationship with the father with consideration being given for this to occur through an appropriate cultural service.

   ·The mother and children receive counselling in respect of safety planning if they have contact with the father.

   ·The matter be reviewed after the children have had at least six months of therapeutic support and/or have established contact with the father.

Principles relating to parenting

1. The children currently reside with the mother and spend no time with the father.

2. The evidence supports a finding that there was likely serious family violence inflicted upon the mother by the father and often in the presence or hearing of the children.

3. The mother seeks that she has have sole parental responsibility for the children.

4. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the children as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).

5. I am cognizant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).

6. I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that the father has engaged in serious family violence.

7. I propose to adopt the following approach:

   a)Give consideration to the proposal put forward by the mother;

   b)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);

   c)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   d)Have regard to the primary considerations under s 60CC(2), namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;

   e)Have regard to the additional considerations under s 60CC(3); and

   f)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.

Parenting considerations

Meaningful relationship

1. During the family assessment the children were not able to be observed with the father. Y could not comment on anything about his father when he spoke with the family consultant and responded to questions by saying “I don’t know” or “I can’t remember”.

2. The children have not had contact with the father for three years now.

3. In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at page 78,252:

   … that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.

4. In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at page 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’”

5. There is no apparent relationship between the father and the children.

6. X’s presentation when attempting to discuss the father was concerning to the family consultant. X was “extremely anxious” which could be symptoms relating to trauma from witnessing family violence.

7. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.

8. It is clear at this stage that the father and the children do not have a relationship, let alone a meaningful relationship.

9. It is concerning that the father has disengaged from the proceedings and has not responded to the extremely serious allegations of family violence that the mother has raised in her affidavits.

10. Turning to the primary considerations under s 60CC(2) of the Act, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Child’s wishes

1. X said his wish for his family is “to have mum and my brother”.

2. Y told the family consultant his one wish would be that “it was Christmas everyday”.

3. The children are relatively young. In the case of X’s wish I give his view some, but not great, weight. I do not attach any weight to Y’s expressed wish.

Allegations of family violence

1. The mother makes detailed allegations with respect to family violence perpetrated upon her by the father.

2. On 19 December 2019 the father’s solicitor filed a notice of ceasing to act.

3. The father appears to have disengaged from the proceedings.

4. The father did not comply with the orders made 27 August 2018 or 19 November 2018 requiring him to file an affidavit specifically responsive to the allegations of family violence and the abusive text messages.

5. The mother provides extensive uncontradicted evidence that the father has been the perpetrator of family violence against the mother throughout their entire relationship and that at times the children have been exposed to this violence.

6. The final orders the mother seeks are extreme in that they would result in no time between the children and the father. In my view this is necessary to protect the children from psychological harm in the care of the father.

Unacceptable risk

1. In M v M (1988) 166 CLR 69 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered at [19] treating an allegation of sexual abuse as the paramount consideration was an error.

2. In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.

3. The decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, assists at 82,713-4, where Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

4. In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:[1]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [1] As taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

5. I adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said at [39]:-

   Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. The children refused to engage with the father at the contact centre.

3. The father does not engage in the proceedings and there is no proposal before the Court for supervision of his time with the children.

Change in the children’s circumstances

1. The children currently spend no time with the father. The orders sought by the mother would not alter the current arrangement.

2. The orders that might arise from the family consultant’s recommendations would lead to a change in circumstances for the children. There would be a gradual process designed to re-introduce them to their father and re-establish contact.

3. There is no evidence to assist the Court with respect to how this may impact on the children, but in particular X who presents as extremely anxious in reference to the father.

Parental responsibility

1. The mother seeks an order for sole parental responsibility. The father is not heard in opposition. The determination of parental responsibility is to be considered by reference to s 60CC factors to determine what is in the child’s best interests.

2. Section 61DA of the Act provides that when making a parenting order in relation to a child, 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 for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

3. The father has engaged in family violence and is now no longer participating in the proceedings.

4. There is no relationship between the parties.

5. The mother has had the primary care of the children without involvement by the father since April 2016. The father has not presented evidence that would suggest the Court could have some confidence that the parties would be able to reach a consensus or indeed, even be able to communicate at a civil level.

6. The parties have not communicated with each other except via solicitors since the restraining order was put in place in 2016.

7. The stability of the children, which entails a clear understanding of the ability of the party who has the primary care to be able to make important decisions as to the children’s ongoing health, education, welfare and development, is important.

8. I am obliged to err on the side of caution and accordingly I consider that it is in the best interests of the children for the mother to have sole parental responsibility.

PASSPORT TO ISSUE

1. In circumstances where no evidence was presented by the father to speak against the mother’s application for permission to apply for a passport to issue for the children, I consider that the mother’s application has merit. I am satisfied that the mother has clear and strong connection within the Commonwealth of Australia and that any intention to travel with the children overseas would be for the purpose of a family holiday and in any event, would be a temporary removal from the jurisdiction.

Conclusion

1. The evidence before me, in the absence of any response by the father, supports a finding that the father presents an unacceptable risk to the children.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 April 2019.

Associate: 

Date:  17 April 2019