Morton and Quigley

[2017] FamCA 1078

FAMILY COURT OF AUSTRALIA

MORTON & QUIGLEY [2017] FamCA 1078

FAMILY LAW – CHILDREN – Final orders – parental responsibility – Where the mother seeks sole parental responsibility of the child – Where there is no appearance by or on behalf of the father – Consideration best interests to the child – Order made for the mother to have sole parental responsibility – Spend time with – Consideration of the child spending substantial and significant time with the father – Whether the father poses any physical or psychological harm to the child – Order made for no time between the child and the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69ZN

Rice & Aspland [1978] FamCA 84
APPLICANT:	Mr Morton

RESPONDENT: Ms Quigley

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2282 of 2010

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms James

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

INDEPENDENT CHILDREN’S LAWYER:

Franklin Legal

Ms Horvat

Legal Services Commission of SA

Orders

1. That the Amended Initiating Application of the father filed 16 October 2015 be struck out for want of prosecution.

2. That the mother do have the sole parental responsibility for the child B born … 2010 (“the child”).

3. That the child live with the mother;

4. That the father be restrained and an injunction be granted restraining the father from being in the company of or spending time with the child;

5. That the father be restrained and injunction be granted restraining him from approaching, harassing, assaulting or threatening the mother or the child.

6. That the order appointing the Independent Children’s Lawyer be discharged.

7. That the proceedings be removed from the active pending list of cases.

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 Morton & Quigley 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: ADC 2282 of 2010

Mr Morton

Applicant

And

Ms Quigley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the ongoing parenting arrangements in respect of the child B born in 2010 (“the child”).  The child is aged seven years and as at the current time resides in the primary care of Ms Quigley (“the mother”).  The father is Mr Morton (“the father”).

2. Orders were made by Judge Cole on 30 May 2016 for the preparation of a family assessment report, the parties to enrol in the Suburb C Children’s Contact Service for supervised contact arrangements to be made and for the matter to be transferred to the Magellan Registrar of the Family Court of Australia on a date to be fixed.  It was for the Registrar to consider the inclusion of this matter in the Magellan list.

3. Registrar Paxton has managed the matter in anticipation of it being included in the trial list and gaining a date for trial.  Orders were made for the preparation of family assessment report and various subpoena to issue to CPS, SAPOL and other organisations who have information in respect of the mother, the father and in respect of the child. 

4. The matter came before me on 16 November 2017.  There was no appearance by the father or his legal representative.  Ms James appeared for the mother and Ms Horvat of counsel appeared for the Independent Children’s Lawyer        (“ICL”).  The first day hearing which had been listed for that day was adjourned to give the father an opportunity to attend.  I did not consider that it was appropriate to list the matter for trial in circumstances where there was uncertainty as to the father’s circumstances, whether he would remain a self-represented litigant, whether he would be represented, and if represented, whether the potential timetable in respect of a final hearing would be convenient to his legal representatives.  I also ordered that the mother file an amended response setting out the orders that she now seeks. 

5. The matter comes on today for a first day hearing.  The father is not present.  I am satisfied that all reasonable steps have been taken to call the name of the father in the precincts of the Court. 

6. It is possible that the answer to the father’s non-attendance can be seen or better understood from an affidavit recently filed by the mother of 6 December 2017, which suggests that the father may well be incarcerated arising out of a criminal charge and/or an investigation.

7. Whether the affidavit of the mother accurately sets out the father’s circumstances or whether there be other issues that impede the father’s attendance at Court today, I consider that he is aware of the proceedings.  Orders have been forwarded to him, information has been provided and I am satisfied that the amended response filed by the mother as a result of my orders has also been brought to his attention.

8. Demonstrably the father is not present.  I consider that whilst it is important for the proper administration of justice that a court offer all reasonable opportunity for parties to be heard, that does not mean that the matter cannot progress unless a party is heard.  What it means is that there has to be a proper opportunity for the party to be heard.  I consider that the father not attending on the last two occasions satisfies the Court’s obligation to provide the father with all reasonable opportunity. 

9. It is entirely possible for the father to have provided information to the Court via the registry of any personal difficulty or impediment which would prevent him from being in Court.  If that information had been provided or had been received, then clearly the Court would be receptive to the difficulties that parties may face from time to time.  That however is not the situation in this case.  The father has been engaged in these proceedings over many years, noting that the mother first filed an application on 15 June 2010.  Whilst there have been periods of lull in the litigation, in a general sense the litigation has been ongoing now for the last seven years.  I consider that the interests of this child need to be considered above those circumstances of the mother and those circumstances of the father.

10. The Full Court decision of Rice & Aspland [1978] FamCA 84, well known to practitioners who appear in this Court, but less well known to parties, is a decision of the Court that has been relied upon often to determine when and in what circumstances it is appropriate for the Court to reopen or allow the relitigation of parenting considerations in proceedings once litigation has been resolved and a final order has been made.

11. The underlying fundamental principle however is that litigation is never in the best interests of a child or children and the longer litigation is ongoing the greater the potential for the litigation itself, as well motivated as the parties and the Court may be, for the child to be in an abusive circumstance of having to be involved in the proceedings and undergoing constant and regular assessment. That, of course is magnified in this case where there are matters relating to grievous and serious child protection matters.

12. The father relies on his Amended Initiating Application filed 16 October 2015 being document 39 on the Court file.  He seeks that the parties have equal-shared parental responsibility for the child, that the child live with the mother but spend time with the father on a graduating basis commencing with each alternate weekend from 10 am Saturday until 4 pm Sunday, and increasing to equal time. 

13. The orders sought by the father provide alternatives if the father resides in E Town or Adelaide.  He seeks orders for special occasions, arrangements in respect of handovers, the child’s health, travel and injunctions preventing the mother from bringing the child into contact with the maternal aunt and various former partners including the maternal uncle.

14. The mother by order, filed an Amended Response on 6 December 2017 being document 51 on the Court file and seeks orders that she have sole parental responsibility, that the child live with her and spend no time with the father.  The mother relies upon her Affidavit filed 6 December 2017 in which she deposes that the father’s daughter D was the subject of misadventure at the hands of the father.

15. The father was born in 1989, the mother in 1992.  The parties had a brief relationship and separated in December 2012.  As indicated, the proceedings have a long history originating in 2015.  The father’s affidavit of 29 January 2015 being document 23 states that he had not seen the child since April 2014 following consent orders that were reached by the parties in February of that year.  It is the father’s position that the mother unilaterally withheld the child from him after he disclosed that the child told the paternal grandmother that she had been the subject of sexual abuse.

16. From April 2015 the father’s time with the child was supervised by the paternal grandmother.  The father subsequently applied for a grant of Legal Aid and was unsuccessful in respect of the contraventions by the mother, but that he had been approved to file an initiating application seeking orders to spend time with the child. 

17. The mother’s Affidavit filed in support of her Response dated 27 April 2015, being document 28 on the Court file alleges that the father has assaulted the child.  She reports that the child returned from visits with the father, had bruising and that the child was reluctant to return to the father and was upset and distressed at the thought of seeing the father if required to do so.

18. The mother’s further Affidavit dated 30 June 2015 being document 37 alleges that on 27 June 2015 the child soiled herself whilst in the care of the father and that the father had hit the child on the child’s genitals.  The child was taken to an appointment at Relationships Australia and then to Suburb C Police, where on both occasions it was allegedly demonstrated by the child how she had been the subject of sexual assault by the father.

19. On 10 December 2015, being document 41, the mother’s solicitor filed an Affidavit in support of the mother’s position that the child was sexually abused by the father.  She confirms a telephone conversation with a worker from the child abuse section of the Suburb F Police Station which confirmed the same.  The child was to be interviewed by the Child Protection Services.  A social worker from Families SA informed her that a notification against the father had been made by a family member.

20. Whilst in the ordinary course of events it would be unwise for a solicitor to embark upon that level of inquiry, then to be included in an affidavit of that solicitor in circumstances where the matters the subject of deposition potentially would be matters of contest and therefore would present to the mother’s solicitor a potential for conflict of interest, nonetheless, in the circumstances of this case there is no challenge to the conduct of the mother’s solicitor and I accept that in a general sense the information obtained by the mother’s solicitor is corroborative of other information that is clearly present on the Court file.

21. On 18 December 2015 the father’s time with the child was suspended.  Annexed to the Affidavit of the ICL filed 17 May 2016, being document 45 is a report by Child Protection Services of 16 March 2016.  In that report, the child discloses to the worker of being smacked by the father and a person called Mr G on the genitals and the bottom on at least two occasions by the father, both over the child’s clothes and under her clothes.  She further disclosed that the father had taken photos of her without her clothes on.  The case worker was satisfied with the apparent veracity of the child’s recollections in regard to the father and Mr G smacking her and considered that it was highly likely she had experienced abusive behaviour by her father at her father’s hands or at the instigation of the father.

22. By order Mr H, a family consultant, conducted a family assessment. His report is annexed to the affidavit of the IC L dated 25 July 2016 being document 49 on the Court file.  The father was interviewed and denied ever abusing the child and referred to the Child Protection Services report as “bullshit”, noting that in his opinion, any disclosure by the child or allegation of sexual abuse or assault by the child had no basis in reality but rather, was as a result of the mother coaching the child.  It is recorded that he currently lived in a two-bedroom unit in E Town and had a child from a subsequent relationship who he alleged sees on an equal-time basis.  The paternal grandmother was also involved and presented as sensible, reasonable and intelligent.

23. The mother was interviewed and it was her position that while she wanted the child to have a relationship with the father she was concerned at matters relating to the risk that the father may present to the child, but, nonetheless, providing it was taken in what might be considered a measured and graduated process she was prepared for the child to spend time with the father.

24. Having viewed the CPS report, the mother’s current position, or renewed position, was that the child should not spend time with the father.  Whilst the child was the subject of interview, and without there being any assertion as to the extent of the weight that should be attributed to any wishes or views of the child, the child is recorded as having indicated that she likes her father only a little bit, and that when on visits with the father, he smacked her on the bottom, the family consultant recommended that the child live with the mother and spend no time with the father.

25. In the current circumstances, the father is not present and I consider that he has had every opportunity to be heard.  As a result of his non-attendance, it is appropriate that the matter proceed to a resolution.  I do so because of the interests of this child and the concern that I have that any further expansion or elongation of these proceedings may yet again involve the child in further assessment.  Clearly all of those who have had anything to do with the child are of the view that the proceedings need to be brought to an end and that the child has been involved in more than enough litigation and the personal conflict as between the parties.

26. There has been little activity by the father in respect of the proceedings and accordingly, I consider it as appropriate in all the circumstances to strike out the Amended Initiating Application filed by the father on 16 October 2015.

27. It may be of course that the father is interested in the proceedings and that his personal circumstances are such that he would be able to engage himself in the proceedings without any other outside or extraneous impediment.  If that is the case, then of course it is a matter for the father to bring such an application seeking to explain his absence and to seek leave to relist his now-struck-out application.

28. That then leaves the Court to consider the orders that should be made in respect of the child and a focus on the amended response.  The mother’s position is clear in that is she seeks sole parental responsibility for the child;  that the child live with her; that the child spend no time with the father and that the father be restrained and an injunction granted restraining him from approaching, harassing, threatening or assaulting the mother or the child.

29. As has often been discussed, it is not simply a matter of this Court making an order by default. I am obliged to apply the provision of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) in respect to the method and manner by which I conduct child-related proceedings and in particular, as a guiding principle, the various principles are set out in s 69ZN. I am also obliged to consider the provisions of Part VII of the Act in order to determine what is in the best interests of the child.

30. In considering any application relating to children’s matters, I have regard to s 60B of the Act which sets out the objects and principles underlying Part VII relating to children’s matters. I bring to account that s 60CA requires the Court to make orders that are in the best interests of the child and that such a test is the paramount consideration in making an order and in circumstances where the issue of parental responsibility is to be considered, if no order is made in relation to parental responsibility the presumption is that the parties would have equal shared parental responsibility.

31. If such an order is made or indeed, if the parties consent to such an order then the provisions of s 65DAA need to be considered, and in circumstances where the Court would need to have regard to whether it would be in the best interests of the child to have equal time with each of the child’s parents, but, if not equal time, then significant and substantial time, and if not that then whatever order would be appropriate in the circumstances of this case.

32. The presumption however can be rebutted and in the circumstances of this case where there have been significant allegations of domestic violence, serious allegations relating to the potential for the father to have engaged in the sexual assault of the child, and now the very real circumstance where the father is incarcerated and is being investigated in respect of the potential death of a child of some 42 days, the basis is clearly made out for the rebuttal of any presumption and/or the support of the mother’s application of sole parental responsibility.

33. In the circumstances of this case, I consider that the appropriate order that should be made is an order for sole parental responsibility.  In making that decision, I have regard to the provisions of s 60CC.  The issue is not just the parenting arrangements in respect of the child, but also matters relating to parental responsibility, are always to be guided by the best interests test and s 60CC sets out how a Court should determine what is in a child’s best interests.  Some cases are difficult and require a detailed and careful consideration.  Other cases have more clarity about them and require only a consideration of certain parts of s 60CC to determine whether parental responsibility should be sole parental responsibility or equal shared parental responsibility.

34. The answer to that in this case can easily be found by considering the primary considerations.  Section 60CC(2) provides that the benefit to the child of having a meaningful relationship with both of the child’s parents is a relevant consideration, but must be tempered by the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence. 

35. It is noted in this case that, clearly, there is no determination as to whether the father is or is not implicated in the death of another child.  It is not however a matter for this Court to decide, on the balance of probabilities, that a particular event has or has not occurred.  This is not a Court about guilt or innocence.  The task is to consider what is in the best interests of the child and accordingly, the Court is required to consider whether there is a risk to a child arising from the behaviour or conduct of his or her parent or parents and if there is a risk assessed, whether it is an unacceptable risk and then whether that risk can in some way be tempered in such a way that there might be the advantage to the child of retaining a relationship, but remaining safe.

1. I consider the risks to this child presented by the father are manifest.  He presents, on the evidence, as an unacceptable risk and in coming to that determination, I have regard to the Child Protection Services report, the affidavits of the mother that I have referred to and the report of the family consultant Mr H.

2. Section 60CC(2)(a) requires that the Court is to give greater weight to the considerations of s 60CC(2)(b) namely, the need to protect the child.  I bring to account s 60CC(2)(a) in this case.  To some extent, indeed, to a very large extent, the additional considerations in respect of s 60CC(3) now need to be given less weight.  I have however considered each and every of the additional considerations and it is true that some ought to be given some consideration. 

3. I consider the issue of family violence in coming to my decision and the attitude to the child and the responsibility of parenthood demonstrated by each of the child’s parents.  The mother is able to provide a protective environment for the child;  the father is not.

4. Importantly, I also consider whether it would be preferable to make orders today that would be least likely to lead to the institution of further proceedings in relation to the child.  As I have indicated, it may well be the case that the father may feel a significant injustice has been occasioned to him by the Court proceeding to resolve and deal with the matters to finality in circumstances where he might consider he has not had an opportunity to be heard.  In indicating to counsel for the mother and to counsel for the ICL my intention to proceed today to finality, the position adopted by counsel was not to speak against that approach. 

5. By necessary implication, it is the mother’s position and the position of the    ICL that they consider it is to the best interests of this child for the proceedings to be brought to an end at this stage, even if there is the possibility or the potential for them to be revisited upon an application by the father for the Court to give the matter further consideration.  In any event, I am prepared to fall in with that approach.

6. For those reasons, and taking into account the information that is available to me, I have determined that orders should be made in terms of the final orders sought in the Amended Response to the Initiating Application filed 6 December 2017.

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

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 December 2017.

Associate: 

Date:  21 December 2017