MURNANE & MURNANE

[2018] FamCA 819

FAMILY COURT OF AUSTRALIA

MURNANE & MURNANE [2018] FamCA 819

FAMILY LAW – CHILDREN – Undefended final parenting hearing – Where the father disengaged from proceedings – Where the mother seeks sole parental responsibility and for the child to live with her – Where the mother seeks for the child to spend no time and not communicate with the father – Where there are allegations that the child has been sexually abused – Where the child spent time in Out of Home Care – Where the mother has been the child’s full time carer since leaving Out of Home Care – Where the father has not taken the opportunity to spend supervised time with the child – Where the Court is not satisfied that the father received adequate notice of the order sought by the Independent Children’s Lawyers – Court deals with the mother’s application on an undefended basis – Orders made for the mother to have sole parental responsibility and for the child to live with the mother – Orders made that the child to spend no time with the father.

FAMILY LAW – FAMILY VIOLENCE – Where the mother makes allegations of family violence against the father – Where an Intervention Order was in place against the father for the protection of the mother and the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms Murnane

RESPONDENT: Mr Murnane

INDEPENDENT CHILDREN’S LAWYER: Sofra Solicitors

FILE NUMBER: MLC 6094 of 2016

DATE DELIVERED: 8 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 18 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Kildea
SOLICITOR FOR THE APPLICANT:	Victorian Aboriginal Legal Service

THE RESPONDENT: There was no appearance by or on behalf of the father

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Nicholson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sofra Solicitors

Orders

1. All existing orders in relation to the child X born on … 2009 ("the child") are discharged.

2. The mother has sole parental responsibility for the child.

3. the child will spend no time nor communicate with the father.

4. The father is restrained from attending the child's school and her primary place of residence.

5. The mother has sole responsibility for and is authorised to do all things and execute all documents necessary to obtain a passport for the child.

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 Murnane & Murnane 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 SYDNEY

FILE NUMBER: MLC 6094 of 2016

Ms Murnane

Applicant

And

Mr Murnane

Respondent

And

Sofra Solicitors

Independent Children's Lawyer

REASONS FOR JUDGMENT

The proceedings

1. Ms Murnane and Mr Murnane are the parents of X, who was born in 2009 and currently is eight years of age.  These proceedings concern parenting orders in respect of the child.

2. The mother commenced the proceedings by an Initiating Application filed on 30 June 2016 in the Federal Circuit Court.  She filed an Amended Initiating Application on 5 July 2018 by which she sought the following orders:

   1.That the Mother have sole parental responsibility for the child of the relationship, namely X born … 2009.

   2.That the Child lives with the Mother.

   3.That the Child spend no time and not communicate with the Father.

   4.The Father is hereby restrained from attending the Child's school and primary place of residence.

   5.That the Mother shall be solely responsible for all necessary acts and arrangements and sign all necessary documents that may be required when applying for a passport for the Child.

   6.Each party be restrained by injunction by himself or herself and their respective servants or agents from the following:

   a.Committing any act of family violence against the other parent as defined in the Family Law Act 1975;

   b.        Communicating with each other or contacting each other.

   7.That all previous orders be discharged.

   8.That all extant parenting applications be otherwise dismissed."

3. The father filed a Response on 24 November 2016, by which he sought orders which may be summarised as follows:

   1.The parties have equal shared parental responsibility for the child the child.

   2.The child live with the mother.

   3.The child spend time with the father on each alternate weekend; for half of all school holidays and on special occasions.

   4.Each of the parties advise the other of his and her residential address; of any serious injury or illness to the child and authorise provision of information to the other by the child's treating health care professionals and school staff.

   5.The father be at liberty to attend all school functions and sporting events.

   6.Each of the parties is restrained from harassing or assaulting the other party; denigrating the other party in the presence of the child; discussing these proceedings in the presence of the child and telephoning the other party save for an emergency concerning the child or to discuss parenting arrangements.

4. The father filed an affidavit on 22 November 2016 and otherwise submitted no written evidence.  He was legally represented in these proceedings until his solicitor filed a Notice of Ceasing to Act on 14 September 2017.

5. On 29 November 2016 orders were made by consent in the Federal Circuit Court which provided inter alia:

   1.The father participate in a psychosexual assessment.

   2.The parties forthwith do all things necessary to cause the child to begin spending supervised time with the father at a contact centre.

6. On 23 May 2017 the proceedings were transferred to the Family Court of Australia.  There was no appearance of or on behalf of the father at a callover on 7 June 2018, when there were proceedings were listed for trial before me on 18 and 19 September 2018.  The father did not appear at a telephone mention of the proceedings before a Registrar on 31 August 2018.

7. There was no appearance of or on behalf of the father on 18 September 2018 and the mother and the Independent Children's Lawyer ("the ICL") sought that the matter be finalised on an undefended basis.  In an Outline of Case document filed on 4 September 2018 the ICL proposed the following orders:

   "1.The Husband's Response filed 24 November 2016 be struck out.

   2.The Applicant Wife and the Independent Children's Lawyer have leave to proceed on an undefended basis.

   3.The Husband have no right of cross-examination of any of the parties or any witnesses in the proceeding.

   4.All previous orders in relation to the child [X] born … 2009 (hereinafter referred to as "the child") be and are hereby discharged.

   5.The Mother have sole parental responsibility for the child.

   6.The child live with the Mother.

   7.The Father spend no time with the children [sic].

   8.The Father be and is hereby restrained by injunction pursuant to s 68B of the Family Law Act ("the Act") from communicating with or attending at or within 200 metres of the residence, place of work (whether paid or unpaid) or tuition of;-

   a.        the Mother;  and/or

   b.        the child;

   and for the avoidance of doubt this injunction is for the personal protection of the mother, and/or the child referred to in this Order and a power of arrest, without a warrant, attach to this injunction pursuant to s 68C(1) of the Act.

   9.It being the case that paragraph 8 of this Order is an injunction made against the Ffather [sic] under section 68B of the Act, if a police officer believes, on reasonable grounds, that the father has breached the injunctions (or any of them), the police officer may arrest the father without warrant and the father be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Act, or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.

   10.The Mother be and is hereby restrained from bringing the child into contact with the Father.

   11.The Independent Child Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:

   a.the Principal or delegate of the Principal of the school attended from time to time by the child;

   b.any Medical Practitioner and/or allied health professional attending upon the child and/or the Mother;  and

   c.the relevant Regional Director of the Department of Human Services (Victoria) or Child and Family Services (New South Wales).

   12.The Order appointing the Independent Children's Lawyer be discharged."

8. The solicitor for the mother, Ms B, swore an affidavit on 7 September 2018 in which she deposed that she emailed the mother's Amended Initiating Application and her affidavit of 3 July 2018 to the father on 6 July 2018.  Ms B deposed further that she emailed to the father on 6 July 2018 the exhibits to the mother's affidavit.  Ms B further deposed that on 6 September 2018 she emailed the father and confirmed his non-appearance on 7 June 2018 and 31 August 2018.  She deposed further that she advised the father that counsel for the mother would seek orders in accordance with her Amended Initiating Application on an undefended basis at trial.  Ms B deposed also that she advised the father that her emailed letter would be posted to his residential address.

9. Ms B deposed that her employer, the Victorian Aboriginal Legal Service, has received no communication from the father since 31 May 2018.  She stated that the father then indicated that he would not appear at the callover on 7 June 2018 and would seek an adjournment of the proceedings until he could obtain legal assistance.  No such application has ever been made by or on behalf of the father.

10. The ICL, Ms Kristine Medson, swore two affidavits on 6 September 2018.  She deposed that she emailed the father on 14 June 2018, enclosing a copy of the orders made on 7 June 2018.  Ms Medson deposed further that she advised the father that she would request that the matter proceed in his absence, in the event that he failed to comply with the trial directions and/or did not appear on 18 September 2018.  Ms Medson indicated that a hard copy of this correspondence was sent to the father at his residential address.  She deposed further that she emailed a copy of the Case Outline of the ICL to the father on 5 September 2018.

11. In her second affidavit of 6 September 2018 Ms Medson deposed to a telephone conversation with the father on the same date.  Ms Medson set out this conversation in the following terms:

    5.At approximately 12.25pm on 6 September 2018, I received a telephone call from the Respondent Father.  He informed me that he had received some e-mails over the last few days and that he was "peeved by what has been going on here".

    6.He went on to say words to the effect that "There is continuation of the allegations sexual abuse allegations.  None of it has been proved to a Court."

    7.I asked the Father whether he is intending to participate in the proceedings.  He responded with words to the effect "I am sick of the lies that have happened."

    8.I then asked him "Are you intending to come to the hearing on 18 September 2018?" and he responded with words to the effect "Is she (the Mother) going to turn up to the hearing?"  I responded "I believe so.  But that is irrelevant."

    9.The Father responded with words to the effect "I am not going to put up with this shit from you, the Court or my ex-partner.  Running my name into the ground.  I don't appreciate my name being slandered into the ground.  I know that I have not done anything to my daughter.  How would you feel if I took your children (if you have any) off you?  You do not have the right to stop me from seeing my daughter.  That is my blood.  It is evil and barbaric what you are doing.  And you should be reprimanded for it too.  I will be going down the legal process to sue you, and I have the money to do it and I will go to the media.  I already have a politician on my side, who is trying to help me get my daughter back."

    10.I said to the Father "You have an opportunity to attend Court on 18 September 2018 and explain your position to the Judge.  If you do not attend Court on 18 September 2018, the matter will proceed in your absence."

    11.The Father responded with words to the effect "How can it proceed in my absence?  It is illegal to do so."

    12.I responded with words to the effect "It is not illegal, and I suggest that you get some legal advice in relation to that."

    13.The Father responded with words to the effect "I have had legal advice, and it is illegal.  I am telling you that.  If I don't get my daughter back or get access to her, I will go down a legal path and splash your name and your firms name all over the media."

    14.I told [Mr Murnane] that that was okay and that it had been a pleasure speaking to him and said goodbye and hung up."

12. Against this background, I determined to deal with the application of the mother on an undefended basis.  The ICL sought orders in accordance with the Minute contained in her Application in a Case and the mother supported this proposal.  In my view, however, there was some doubt that the father had received adequate notice of these proposed orders.  The father did not refer specifically to the Outline of Case of the ICL in his conversation with her on 6 September 2018.

13. Accordingly, I will deal with the Amended Initiating Application of the mother filed on 7 July 2018 on an undefended basis.  This Application was served upon the father in accordance with directions made by Johns J on 7 June 2018.

Background

1. The father and the mother, who are aged 36 and 29 respectively, met online in May 2007 and began to live together in July 2007.  They married in 2009 and separated on 18 April 2015.

2. In 2002 the father pleaded guilty to child pornography offences and received a two and-a-half years suspended sentence.  He was placed upon the Sex Offenders Register for a period of 15 years, which expires in 2019.

3. In November 2013 the Department of Health and Human Services ("DHHS") received notifications of alleged sexual assault of the parties' child X, who was then almost four years of age.  The mother informed departmental officers that she believed the perpetrator was a "phantom" rather than the father.  She alleged that she did so because she was afraid of the father.

4. On 27 March 2014 the Children's Court made an Interim Accommodation Order to Out-Of-Home Care ("IAO") in relation to the child.  These orders provided that the child have regular supervised contact with the father and the mother.  The orders provided further that the father attend upon a psychologist for a risk assessment in relation to the child.

5. In her affidavit of 3 July 2018 the mother deposed that the father declined to complete the forensic psychological assessment which had been ordered by the Children's Court.  The mother stated:

   "25.... When [Mr Murnane] was asked to complete a forensic assessment and a cognitive assessment, he was hesitant to do so as he considered it "too babyish" and I heard him say that he "was done".  The examiner also tried to reason with [Mr Murnane] to stay and complete the assessment but he had said to me that he was going to leave me in Melbourne if I didn't follow him to the car, as I was still living with him.  I had contemplated separating from [Mr Murnane] at this time as I was scared to be around him ..."

6. On 18 April 2015 the mother ended the marriage and left the parties' home.  She maintained that the father physically evicted her from the premises.  On 5 May 2015 an interim family violence intervention order was made for the protection of the mother and the child.

7. After the separation the mother attended all scheduled contact visits with the child, which occurred twice weekly.  The mother deposed that these visits were unsupervised and occurred at a library, in parks and at cinemas.  The mother maintained that the father did not attend his scheduled visits.

8. The mother participated in various programs implemented by Departmental officers to assist the child with fine motor skills and her need for structure and routine.  She deposed that the child was diagnosed with autism on 20 September 2013.

9. In December 2015 the mother moved into a house at C Town.  On 18 December 2015 the Children's Court adjourned the IAO proceedings for six weeks so as to enable a gradual transition of the child into the full-time care of the mother.  This process was completed on 28 January 2016 and the child has since remained in the full-time care of the mother.

10. On 16 May 2016 an officer of DHHS wrote to the mother's solicitor and advised that the Children's Court proceedings would be withdrawn by the Department, once the mother commenced a family law application for the child to spend only supervised time with the father.  The mother filed such an application on 30 June 2016.

11. The child last spent time with the father, under supervision, on 27 June 2016.  The mother deposed that the father had not attended most scheduled supervised contact visits prior to that date.

12. The mother deposed that on 25 July 2016 the father attended her home and demanded to spend time with the child.  She maintained that the father banged on the windows and doors of the premises and that she called the police.  On 1 August 2016 the mother applied for an interim intervention order, listing herself and the child as affected persons.  A final order was granted on 8 March 2017 and expired on 8 March 2018.

13. The mother deposed that the child the child was very frightened by the incident on 25 July 2016 and thereafter she suffered nightmares about "scary monsters".  She deposed that the child continues to have nightmares but indicated that the cause may be in part also that she is bullied at school.

14. The mother deposed that the child has a structured routine, which includes exercises recommended by an occupational therapist.  She indicated that the child suffers "meltdowns", which can be triggered by seemingly minor matters.  She deposed that she follows professional advice in managing the child's special needs which arise from her autistic condition and that she utilises respite care services.

15. The mother identifies as an Aboriginal person and she and the child participate in cultural events in the C Town area.  The mother deposed that she has a close family unit, who provide regular support to her although they live in Sydney.

Evidence

1. The mother relied on her affidavits affirmed on 27 June 2016, 1 August 2017 and 5 July 2018.  She also relied upon the affidavit of her solicitor Ms B affirmed on 7 September 2018.

2. A single expert, Dr D, prepared two psychosexual assessment reports in relation to the father dated 27 February 2017 and 16 May 2017.  The latter report placed reliance on material prepared by other practitioners in the course of the Children's Court proceedings.  I am conscious that none of this material, nor the opinions and assessments of Dr D, have been tested by cross-examination.

Consideration

Primary considerations

1. The mother has been the primary carer of the child since she was restored to her full-time care in January 2016.  In my view, it is reasonable to infer that she has a close and loving relationship with the mother.

2. The child has spent no time with the father since June 2016 and witnessed the incident at the home of the mother on 25 July 2016.  The mother deposed that the child says to her friends when they ask about her father "I don't have one."  The mother deposed further that she provided an opportunity for the child to contact him on Father's Day and she replied "you are my mum dad".

3. The father has not taken the opportunity to spend time with the child at a supervised contact centre following the orders of 29 November 2016.  The mother deposed that the father has not contacted her or her solicitor to enquire about the child's health, education or general well-being.

4. Reference has been made above to the mother's evidence in relation to the incident at her home on 25 July 2016, which resulted in an IVO for the protection of herself and the child.  I have no reason to doubt the mother's evidence that the child was very frightened by this incident and experienced nightmares after these events.

5. The historical sexual abuse allegations against the father remain undetermined and no findings can be made in the context of this undefended hearing.  Nevertheless, I take into account the assessment of risk set out by Dr D in his second report.

6. Dr D opined inter alia as follows:

   17.As such, assuming the information provided in the collateral material is correct, [Mr Murnane] has likely minimised and altered historical information relating to both his offences and the nature of personal risk factors that are relevant in this matter.  Based on these factors, in conjunction with previous factors identified, including the fact that [Mr Murnane] has had a previous charge and conviction of possession of child pornography, these factors raise further concerns about [Mr Murnane's] propensity towards offending.  His lack of transparency and lack of insight into these difficulties raises further concerns.  It is likely for this reason, that if his psychosexual risk of offending is at least Moderate, he requires intervention with a clinical and/or forensic psychologist to address issues of offending risk.  Normally, it is possible to be specific regarding risk, identifying the likely context and/or target group.  Due to [Mr Murnane's] lack of transparency, there is generally a need for greater caution, to prevent the possibility of offending.

7. Dr D made the following recommendations:

   18.It would be beneficial for [Mr Murnane] to be involved in a group program to address same, although such a program is probably not available.  Similarly, it is likely that individual clinicians are available in the Melbourne metropolitan area.  Subsequently, [Mr Murnane] should then be seen by another independent clinician (not the current clinician) to ensure independence, to reassess him following intervention over a period of 12-18 months to address sexual offending risk.

   19.While it is appropriate that there is time between the father and the child, in the meantime this time should be supervised until it is clearly identified that offending risk has reduced to the point that time could move to alternatives, such as an adult in attendance."

8. There was no evidence to suggest that Mr Murnane has taken any steps to implement these recommendations of Dr D.  It has been open to him to do so since the release of the second report of Dr D in May 2017.  It was open to the father to participate in the proceedings and test the evidence of Dr D at trial by way of cross-examination.

Additional considerations

1. There was no independent evidence of the views of the child.  I have referred above to the mother's evidence the effect that the child appears to believe that she does not have a father.

2. The father has not pursued opportunities to spend supervised time with the child.  As noted, on 25 July 2016 the father attended the mother's home without her invitation or consent and demanded to spend time with the child.  Accordingly, I conclude that the father has failed to take appropriate steps to foster the relationship between the child and himself.

3. I have referred to the mother's evidence in relation to the child's autism and her need for structure and routine.  There was no expert evidence as to the likely effect upon the child of a significant change to her routine by way of the introduction of time with the father.  He has been absent from her life for more than two years.

4. The parties live approximately one hour's driving time apart and the mother is reliant upon public transport.  I accept her evidence that she would experience considerable difficulty in taking the child to E Town, which is the home of the father, to spend time with him.

5. As noted above, the mother has engaged support services in C Town to assist her in caring for the child and meeting her special needs.  There was no evidence as to the extent of the father's understanding and knowledge of the child's condition and his ability to address her special needs.

6. I have referred above to the incident in July 2016 which resulted in an IVO for the protection of the mother and the child.  The mother made allegations that the father subjected her to "intimidating and aggressive behaviour" but did not particularise his purported conduct.  These allegations are untested but I take into account the fact that the mother and the child have been the subject of a final IVO for their protection.

7. The mother deposed that:

   56.I have also not seen or spoken to [Mr Murnane] since August 2016 and I don't feel like I would be able to properly communicate or negotiate with him about the child's needs, as I also remain fearful of him to this day, believing that he may try and stalk the child and me."

   I have no reason to doubt this evidence of the mother.

Conclusion

1. The mother is the unchallenged primary carer for the child and a significant consideration is her ongoing capacity to meet the needs of the child.  The mother gave uncontradicted evidence to the effect that she remains fearful of the father and believes that she could not enter into a co-parenting arrangement with him.  I accept that protection of the mother's capacity to provide for the child's needs should play a prominent role in the determination of these proceedings.

2. In my view, another significant consideration is the likely impact upon the child of the introduction of time with the father.  There was no expert evidence of the mother as to the child's diagnosis of autism and her need for structure and routine.  It may well be that this significant change could have an adverse impact upon the child.

3. There was no evidence that the father has taken any steps to implement the recommendations of Dr D, despite his report being available since May 2017.  In my view, the father could have demonstrated a commitment to his relationship with the child by taking these steps.  The same observation can be made in relation to the father's failure to spend supervised time with the child, by arrangement with DHHS and pursuant to the orders of November 2016.

4. In these circumstances I am not prepared to make any orders for the child to spend time with the father, even on a supervised basis.  I will accede largely to the Amended Initiating Application of the mother filed on 5 July 2018.

5. I will not make proposed order 6, which sought restraints on the parties from contacting or imposing acts of family violence upon each other. The mother is at liberty to refrain from initiating communication with the father and she has resort to state legislation, in the event of inappropriate contact from him. I doubt that the father would appreciate the meaning of an order framed in terms of "any act of family violence ... as defined in the Family Law Act 1975." Accordingly, such an order would appear to lack utility.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 October 2018.

Associate:

Date:  8 October 2018