MURPHY & MENDOZA
[2017] FamCA 119
•3 March 2017
FAMILY COURT OF AUSTRALIA
| MURPHY & MENDOZA | [2017] FamCA 119 |
FAMILY LAW – CHILDREN – Best interests – parental responsibility - where the father no longer seeks to spend time or communicate with the child – where the mother seeks the child to live with her and the father’s time be reserved – where there is evidence to rebut the presumption of equal shared parental responsibility – where the father is an unacceptable risk to the child – order made for the father’s time with the child be reserved
FAMILY LAW – PRACTICE AND PROCEDURE – where the mother seeks to have the matter heard on an undefended basis in circumstances where the father has filed a Notice of Discontinuance
| Family Law Act 1975 (Cth)ss 60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 (Cth) r 10.11(3) Evidence Act 1995 (Cth) s 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 | ||
| APPLICANT: | Mr Murphy | |
| RESPONDENT: | Ms Mendoza |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Lynch |
| FILE NUMBER: | MLC | 570 | of | 2015 |
| DATE DELIVERED: | 3 March 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 13 February 2017 |
REPRESENTATION
| THE APPLICANT: | No Appearance |
| COUNSEL FOR THE RESPONDENT: | Ms Devine |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Peter Lynch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Lynch |
Orders
That all previous parenting orders be discharged.
That the mother have sole responsibility for making all decisions regarding the care, welfare and development of the child of the relationship, namely B born … 2014.
That the child live with the mother in Australia.
That the question of the father’s time with the child be reserved.
That the mother be at liberty to provide a copy of these orders and reasons for Judgment to the Department of Immigration.
That all extant parenting applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 Murphy & Mendoza 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 MELBOURNE |
FILE NUMBER: MLC 570 of 2015
| Mr Murphy |
Applicant
And
| Ms Mendoza |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parenting arrangements for the child B, who was born in 2014 and is now aged two years and nine months.
The father’s application for final orders with respect to parenting matters together with the mother’s response to that application were listed for a five day final hearing before me, commencing on 13 February 2017. A week prior to the hearing on 6 February 2017, the father filed a Notice of Discontinuance of his Initiating Application filed 16 September 2015.
Paragraph three of the Notice of Discontinuance confirms that the father seeks to discontinue all of his applications listed before the Court. In addition to the Notice of Discontinuance, the father filed on the same day an Affidavit sworn by him that day. The father deposed in that Affidavit as follows:-
1.I [Mr Murphy] the applicant in these matters, make no further applications to this Honourable Court. As I have explained in prior affidavits and in self-representation before Honourable Judge Bender, Senior Registrar Fitzgibbon. All I want is for the child and her mother to stay safe is [sic] Australia under Australian jurisdiction.
…
3.…I cannot and will not continue in this matter as I have no wish to denigrate or question Respondent Mothers [sic] ability and love for the child.
…
9.I abandon all application to the Honourable court for the reasons; financially I don’t have the funds to point [sic] counterpoint the views and opinions of experts about my suitability regarding further father-daughter relationship. As Honourable Justice Johns on the 5/12/2016 reminded me that I need to get legal advice. I have sought and received from lawyers stating that for me to continue in this matter is nonsensical and I quote them again “This would be a waste of money”.
10.I will follow the advice and guidance given and recommended by Melbourne Registry Family Consultant [Ms C] in an updated family report. In her report she suggests that I withdraw any applications before the courts until the child is older. I strongly agree and accept [Ms C’s] advice.
In the final paragraph of his Affidavit, the father deposed as follows:-
20.I became the applicant in this matter 29/01/2015 solely to protect the child from returning to a Non-Hague Convention country. As the matter grew in complexity due to Respondent Mother’s allegations. I repeat and reiterate that her allegations are not true. All of them have been investigated by The Victorian Police and Department of Human Services all with no further actions to be taken. At this stage I withdraw all applications to this Honourable Court and I stand down from this matter, for the reasons I have no money, no more emotional strength, or lawyers to continue. I love my daughter and I hope that that is understood by all in this matter. I am not a risk to her and hopefully one day in the near future, our father-daughter relationship; can continue.
The father appeared at the hearing before me on 1 September 2016 and was present when I made orders listing this matter for final hearing to commence on 13 February 2017. Hence, I am satisfied that the father is aware of the final hearing listed before me. The Notice of Discontinuance and Affidavit in support confirm that the father has elected not to participate in the final hearing.
The father was called at the commencement of the hearing. He did not answer the call.
Given the Notice of Discontinuance filed by the father, the matters contained in his Affidavit filed 6 February 2017 confirming his abandonment of his application and his failure to appear at the hearing, the mother seeks to have her application for final parenting orders heard and determined on an undefended basis. The refusal of the father to participate in the proceedings is not a bar to the mother’s application proceeding. Rule 10.11(3) of the Family Law Rules 2004 (Cth) provides as follows:-
Discontinuance of a case by a party does not discontinue any other party’s case.
The mother’s application to proceed on an undefended basis was supported by the Independent Children's Lawyer (“the ICL”). Having regard to the matters contained in the father’s Notice of Discontinuance and Affidavit filed in support, I am satisfied that the mother should be granted leave to proceed with her application in the father’s absence.
Material relied upon and orders sought by the mother
The mother, who was originally the respondent in the proceedings but by virtue of the father’s discontinuance is now the applicant, relied upon the following material:-
·Summary of argument filed 31 January 2017;
·Amended Response to Initiating Application filed 29 March 2016;
·Affidavit of the mother filed 16 May 2016;
·Affidavit of the mother filed 7 November 2016;
·Notice of Risk filed 2 June 2015;
·Notice of Risk filed 21 July 2015.
In addition to the material filed on behalf of the mother, she relied upon the following expert evidence:-
·Affidavits of Dr D filed 10 June 2016 and 28 August 2016;
·Family Reports dated 8 June 2016 and 2 December 2016.
The mother seeks orders in the following terms:-
1.That the mother have sole parental responsibility of the child B born in 2014;
2.That the child live with the mother in Australia;
3.That the father’s time with the child be reserved;
4.That the mother be granted leave to provide a copy of the final orders and Reasons for Judgment to the Department of Immigration.
Material relied upon and orders sought by the Independent Children's Lawyer
The ICL relied upon the following material:-
·Amended Case Summary document dated 9 February 2017;
·Family Report dated 8 June 2016;
·Family Report dated 2 December 2016;
·Affidavits of Dr D filed 10 June 2016 and 28 August 2016;
·Affidavit of Ms E filed 30 August 2016;
·Magellan report of Department of Health & Human Services.
The orders sought by the ICL are set out at Part A of the Amended Case Summary document. Those orders are identical in terms to those sought by the mother save that the ICL also sought an order that the father require leave of the Court before the issue of a further parenting application with respect to the child. However that part of the ICL’s application was not pressed at the hearing.
Background
The father is aged 54 years. He lives in Suburb F. He works in the transport industry and deposes at paragraph 11 of his Affidavit filed 6 February 2017 that he currently works two jobs.
The mother is aged 34 years. She resides in rental accommodation in Suburb G. Her occupation is home duties.
The parties commenced a relationship in Country H in 2013. The mother deposes that they lived together briefly in Country H until the father was deported to Australia in December 2013.
The child of the relationship, the child, was born in Country H in 2014.
The mother and the child travelled to Australia on 11 January 2015 and commenced living with the father from that date.
The parties separated in Australia approximately two months later in March 2015.
Within two weeks of the mother’s arrival in Australia, the father filed an Initiating Application in the Federal Circuit Court of Australia. That application filed 28 January 2015 sought orders that the mother and the father be restrained from removing the child from the Commonwealth of Australia and that the child be placed upon the Airport Watch List.
That application was listed before Judge Bender on 29 January 2015. That day, her Honour made ex parte orders restraining the parties from removing the child from the Commonwealth of Australia.
On 5 February 2015 orders were made by consent that the parties be restrained from removing the child from the Commonwealth of Australia and that she be placed on the Airport Watch List. Otherwise the parties’ applications were adjourned for further hearing to 23 March 2015.
On 2 June 2015 the mother filed a Notice of Risk alleging that the child was at risk of abuse by the father. The alleged abuse of the child included that the father had physically assaulted the child on 16 March 2015. Further it was alleged that the father abuses substances. The mother also alleged that the child has been exposed to the father’s physical and verbal abuse of the mother and had been distressed as a result.
On 7 July 2015 orders were made by Judge Bender transferring the proceedings to the Family Court of Australia.
On 21 July 2015 the mother filed a second Notice of Risk in which she alleged that on 15 March 2015 the father sexually abused the child, allowing the child to hold the father’s erect penis. The mother also alleged that she had been raped by the father and that the father had made threats to kill the mother and the child.
On 14 September 2015 orders were made by Registrar Field listing the matter for hearing before Senior Registrar FitzGibbon in the Magellan List. In addition, Registrar Field made orders for the appointment of the ICL.
The proceedings stood in the Senior Registrar’s Magellan List of cases for some months whilst Victoria Police conducted its investigation into the mother’s allegations against the father. In addition, during that period orders were made for the preparation and release of the Magellan Report and the first Family Report.
On 8 April 2016, following a contested interim hearing, Senior Registrar FitzGibbon made orders for the father to spend time with the child for up to two hours once a fortnight, such time to be supervised by a professional agency and that the father pay all costs of the supervision. Further orders were made for the mother and the father to undergo supervised drug screens within 24 hours of a written request by the ICL, and that the mother and the father attend upon Dr D, psychologist, for psychological assessment (with the father’s assessment to include psycho-sexual assessment).
On 1 September 2016 I made orders listing the matter for final hearing to commence on 13 February 2017. Directions were made that day for the preparation of the matter for final hearing. The father appeared in person at that hearing and the mother was represented by Counsel.
Relevant Legal Principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to those considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent’s family or family violence (s 61DA(2)). Further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for their parents to have equal shared parental responsibility for the child (s 61DA(4)). For the reasons set out hereunder, I am satisfied that the presumption is rebutted in this case, as an order that the parents have equal shared parental responsibility would be contrary to the child’s best interests.
As a result, I am not obliged to consider whether the child spending equal time with each parent would be in her best interests in accordance with the provisions of s 65DAA(1) of the Act. Similarly, I am not required to consider whether the child spending substantial and significant time is in her best interests in accordance with the provisions of s 65DAA(2).
The mother alleges that the father poses an unacceptable risk to the child due to the allegations that he has sexually abused her. Further, the mother alleges that the father’s violent conduct also poses an unacceptable risk of harm to the child.
The correct approach in considering allegations of sexual and by implication other types of abuse was considered by the High Court in M v M (1988) 166 CLR 69 (“M v M”). There, the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the Court, namely what is in the child’s best interests. The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of a child.
The High Court noted at page 77 that:
…There will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring …and assess the magnitude of that risk.
The High Court then considered how to define the magnitude of risk and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk” of abuse.
The “unacceptable risk” test is applied by the Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M v M at page 78). Thus where the Court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in permitting time spent out-weighs the potential benefit to that child of spending time with that parent.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:-
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Having regard to the serious implications that a finding of abuse has occurred, the Court should not make such finding that it has occurred unless it has been proven to this higher standard.
The relevant standard of proof is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof the Court must take into account the following:-
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
Although the father has elected to play no part in the final hearing that decision does not entitle me to make a parenting order as a result. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and it is evident how I have exercised and discharged the need to give consideration to the factors contained within s 60CC of the Act.
The Mother’s Evidence
The mother relied on her Trial Affidavit filed 16 May 2016. The mother was not required for cross-examination by counsel for the ICL and therefore her evidence is unchallenged.
In her Trial Affidavit she deposes as to her current living arrangements. During the course of submissions, I was informed that the mother has since the date of filing her Trial Affidavit relocated with the child to Suburb G. She does not work and is engaged in the full-time care of the child. She deposes that it is her intention to remain living in Australia with the child as she perceives that there are better opportunities here for the child.
Currently, the mother is in Australia on a Bridging Visa A and has made an application to the Department of Immigration for a protection visa. The mother is being assisted by the Refugee and Immigration Legal Centre.
The mother receives a Centrelink benefit in respect of the child, who is an Australian citizen. The mother also receives financial assistance from the Red Cross as an asylum-seeker. The mother receives no child support from the father.
The mother alleges at paragraphs 17 to 35 inclusive of her Trial Affidavit that she was subjected to family violence by the father; that violence included emotional, verbal, sexual and physical abuse by the father. The allegations by the mother include that the father:-
·Called the mother derogatory names;
·Physically abused her, including pushing her stomach when she was pregnant with the parties’ child, attempting to strangle her, and forcing her to have sex;
·That the father threatened to kill the mother;
·That the father verbally abused the mother.
The mother also alleges at paragraph 36 of her Trial Affidavit that she observed the father behaving in a sexually inappropriate manner towards the child on 15 March 2015 deposing as follows:-
On the 15 March 2015 I walked into the room and saw [Mr Murphy] lying on the floor with his pants down, allowing the child to hold his penis, which was erect. I was shocked and immediately removed the child from the situation.
At paragraph 39 of her Trial Affidavit the mother alleges that on 16 March 2015 the father argued with the mother. She deposes that the child was upset by the altercation and that the father pushed the child away and then picked her up and roughly threw her to the ground.
The mother made an application for an Intervention Order against the father on 10 April 2015. On 6 August 2015 she was granted a final Intervention Order for the protection of both she and the child in the Magistrates' Court of Victoria at Melbourne. That order expires on 5 August 2020.
The mother also alleges in her Trial Affidavit that the father smokes marijuana and drinks alcohol to excess.
The Father’s Evidence
The father provides a general denial of the mother’s allegations in his Affidavit filed 6 February 2017 where he deposes at paragraph 20 as follows:-
…I repeat and reiterate that [the mother’s] allegations are not true. All of them have been investigated by the Victorian Police and the Department of Human Services all with no further actions to be taken.
Otherwise, the father has not responded to the specific and detailed allegations made by the mother in her Trial Affidavit. He has elected not to participate in the proceedings and as a result his evidence has not been tested and the mother’s evidence is unchallenged.
The evidence of Dr D
Dr D is a clinical and forensic psychologist. Pursuant to Court order Dr D has sworn two affidavits in the proceedings, his Affidavits filed 10 June 2016 and 28 August 2016. Annexed to those Affidavits are his assessment and report with respect to both the father and the mother. Those reports are dated 31 May 2016 (annexure A to his Affidavit of 10 June 2016) and 22 August 2016 (annexure A to his Affidavit filed 28 August 2016).
Dr D has extensive experience in the preparation of reports in family law matters, including psycho-sexual and parental risk evaluations. His qualifications were not challenged during the course of these proceedings. Further, his evidence as contained in his Affidavits was not the subject of challenge. Dr D’s reports as to his interview and assessment of both parties were detailed and insightful. I accept his evidence.
In his report dated 22 August 2016 Dr D notes at paragraph 7 that there are allegations against the father with respect to his use of cannabis, methamphetamines and alcohol. Dr D reports that:-
[The father’s] account is that he used cannabis in his teens and intermittently since but not regularly. There was minimisation with respect to substance abuse in general. His account is that he is currently drinking one glass of wine per night, reporting that since he began taking medication he has reduced his alcohol. He denied being a big drinker although then contradicted himself, by saying apart from a period of six months ago when he was overwhelmed by the Family Court matters and also when he was in [Country H].
At paragraph 12 of his August 2016 report Dr D notes that:-
Mental health assessment is suggestive of substance abuse including alcohol abuse, probably up until recently. Additionally, there are questions about other substances such as ecstasy, considering his history.
I accept that evidence.
Dr D also notes the allegations against the father that he has sexually abused the mother and the child. He reports the father’s denial of those allegations. Having undertaken a psycho-sexual assessment of the father, in respect of those allegations Dr D concludes as follows:-
20.…In each aspect of sexual risk including Sexual Violence History, Psychological Adjustment, Mental Disorder, Social Adjustment and Manageability, there are difficulties identified. The allegations and the history in the context of the risk factors identified raise significant concerns in this matter. Due to the lack of collateral information, a formal estimate of risk is difficult. Nevertheless, it is concluded that there are significant risk factors which raise concerns about the potential for sexual violence.
Dr D also addresses the allegations of verbal and physical abuse by the husband in his two reports. In his report dated 31 May 2016, Dr D notes at paragraph 27 that the father acknowledged his verbal abuse of the mother. In his second report dated 22 August 2016 Dr D states at paragraph 24 that he has listened to the recording by the mother of a verbal altercation between she and the father. Dr D’s view of that exchange between the parties is as follows:-
This recording is clearly disturbing. [The father] was not able to adequately explain his behaviour regarding this recording. This information raises serious questions about his personality functioning, violence proneness, and tendency to use violence and control in his relationships.
As to the father’s functioning and risks that he poses to the child, Dr D concludes in his second report as follows:-
29. Overall, there were two evaluations with [the father] and that of the mother, which also raise serious questions about [the father’s] functioning over a longer period of time, suggesting personality difficulties that are unlikely to be addressed by his medication use. Overall, parental risk estimates a child in his care would be a moderate to high risk, with the note that there are limitations in the collateral information available in this matter.
30.To date, it would appear that the father’s treatment has been symptomatic with medication rather than addressing the more general personality functioning and as such, psychological or psychiatric assistance to deal with these issues over 2-3 years would be appropriate. Clearly these factors rest on the Court’s opinion regarding the materials before the Court.
It was submitted on behalf of the mother that the father poses an unacceptable risk to the child as a result of his propensity for violence towards the mother and the child, being both verbal and physical violence. I am satisfied, having regard to the unchallenged evidence of Dr D as to the father’s admission of verbal abuse, and his assessment of the father’s proneness to violence and the risks to the child in the father’s care, that there is much force in that submission and that there is an unacceptable risk of harm to the child in the father’s care.
The reports of the Family Consultant
The Family Consultant, Ms C has prepared two Family Reports in the proceedings, dated 8 June 2016 and 2 December 2016. During the preparation of those reports Ms C conducted interviews with the mother and the father and observed the child with the mother. Ms C also read material filed by the parties and the Independent Children's Lawyer to assist her in the preparation of the reports.
Ms C has a Bachelor of Social Work and has extensive experience as a Family Consultant. There was no challenge to her qualifications and Ms C was not required to give evidence in relation to her reports.
Both Family Reports are detailed and comprehensive. They provide a summary of the parties’ background and the relevant issues as they are likely to affect the child. There was no challenge by any party to the evidence of Ms C.
At the time of the preparation of the first Family Report, the father had not commenced spending time with the child. The Family Consultant recommended in the conclusion of the first Family Report that an updated report be prepared after the father has had the opportunity to spend time with the child in a professionally supervised setting. It is as a result of that recommendation that the second Family Report was ordered and prepared.
At the time of the preparation of the second Family Report, the father had spent professionally supervised time with the child on six occasions between 25 May 2016 and 3 August 2016. On 7 September 2016 the mother and the child relocated their home to I Town. As a consequence the father’s professionally supervised time ceased.
The Family Consultant’s observations of the mother were overwhelmingly positive, and she noted that the mother impressed at interview and during observation as:-
…resilient and determined to prioritise the well-being of and better future for the child and herself. She maintained eye-contact throughout and at no point became histrionic or aggressive. When she alluded to the child’s personality and progress, she broke out into a broad smile which impressed as genuine rather than manipulative of self-serving.[1]
[1] Paragraph 16 of the second Family Report dated 2 December 2016
Similarly the Family Consultant confirmed the mother’s assured and confident parenting capacity. At paragraph 27 of the second Family Report she observed that:-
…[The mother] was attentive to [the child] in settling her into the room and ensuring she had access to two bottles of milk but she did not excessively fuss over [the child]. She was confident that [the child] would integrate into the playroom without any separation anxiety and indeed [the child] was conspicuously self-reliant in the transition. Although her English was very limited, [the child] was resourceful and adaptable. When [the mother] returned to the playroom and prepared for [the child’s] departure, she affectionately patted [the child] on the head. She dressed her in a lovely, warm coat and appeared proud to observe [the child] all buttoned up.
In contrast, the Family Consultant observed the father to be “strident” in tone and that his views were “black and white”. He was observed to portray himself as a victim not only of the mother but of the Family Law system at large, which was his justification for embarking on self-represented litigation. [2]
[2] Paragraph 30 of the second Family Report dated 2 December 2016
The Family Consultant’s interview of the father disclosed an attitude which was largely self-focussed rather than child-focussed. For example, in response to an enquiry as to whether he was going to attend counselling with a psychologist for a two to three-year period as recommended by Dr D, the father’s response to the Family Consultant was “[t]hat’s his opinion; I’m not interested”.[3] When questioned as to the mother’s relocation to I Town, the father was indignant at the prospect of him having to travel for future supervised time. It was his proposal that the mother and the child should travel to a mid-point suburb for supervised time. Seemingly he had little regard or understanding as to the impact of such travel upon the child.[4]
[3] Paragraph 31 of the second Family Report dated 2 December 2016
[4] Paragraph 33 of the second Family Report dated 2 December 2016
As to the allegations of family violence, the father was observed to minimise and rationalise his behaviour to the Family Consultant. In the first Family Report he was observed to deny all allegations except for the verbal abuse in the weeks prior to the separation. The father displayed little self-awareness as to the impact of his own behaviour on others. The Family Consultant described the father’s presentation as highly animated, voluble and at times difficult to rein-in and indeed she twice had to request that the father lower his voice, noting that he appeared to have little insight as to his “imposing” presence.[5]
[5] Paragraph 36 of the first Family Report dated 8 June 2016
When questioned as to the mother’s allegations of his alcohol and drug abuse, the Family Consultant noted that the father was flippant about his alcohol use, conceding that he drinks alcohol when he gets home from work, citing “half a bottle of wine” on an average night.[6] Further, the Family Consultant reports the father’s concession that during the parties’ cohabitation in Melbourne he drank five to six cans of beer after work each night.[7] The father denied the mother’s allegations of drug use. The report of the Family Consultant into the father’s alcohol use highlights the limited insight the father has as to the impact of that behaviour upon the mother and the child. Seemingly, he has little appreciation as to the potential impact of his heavy consumption of alcohol on his behaviour or his parenting capacity more generally.
[6] Paragraph 40 of the first Family Report dated 8 June 2016
[7] Paragraph 40 of the first Family Report dated 8 June 2016
When discussing with the Family Consultant the prospect of spending supervised time with the child, the Family Consultant observed in the father the “conspicuous absence of any genuine enthusiasm, or any emotion about reacquainting himself with the child”.[8]
[8] Paragraph 42 of the first Family Report dated 8 June 2016
When questioned as to his ability to care for the child, given his employment circumstances, the father indicated that he would be relying upon the “five women” in his family to compensate for his absence.[9] Again, the father demonstrated little insight as to the potential impact upon the child of him being an absent father and having to call upon family members to fill the breach.
[9] Paragraph 43 of the first Family Report dated 8 June 2016
Given the uncertainty as to the mother’s application for permanent residency, the father was asked by the Family Consultant as to his vision for the child’s future if she were to remain in Australia. At paragraph 44 of the first Family Report the Family Consultant records the father’s response to that enquiry as follows:-
He foresees [the child’s] destiny being in either foster-care or his care. The two times he mentioned these alternative outcomes he presented them pragmatically side-by-side without any acknowledgement of the upheaval this would cause [the child].
Having regard to the father’s responses, the Family Consultant stated that it was her sense that the father did not have any inherent desire to actually parent the child.[10]
[10] Paragraph 45 of the first Family Report dated 8 June 2016
I accept the unchallenged observations of the Family Consultant with respect to the mother and the father.
SECTION 60CC CONSIDERATIONS
I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that decision her Honour concluded that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents, that is one that is important, significant and valuable as defined by her Honour. Her Honour observed that the word meaningful is a “qualitative adjective, not a strictly quantitative one”.
The Full Court considered the interpretation of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405. The Full Court agreed with Brown J’s observations as to the nature of a meaningful relationship and considered three possible approaches to s 60CC(2) at paragraph 118, they being:-
·The “prospective approach” which requires the Court to “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”;
·The “present relationship approach”, which involves making findings as to the nature of the child’s relationship with both of the child’s parents as at the date of the hearing; and
·The “presumption approach”, which requires a court to assume that there is a benefit to all children in having a meaningful relationship with both of their parents.
The Full Court at paragraph 119 concluded that the preferred approach to the interpretation of s 60CC(2)(a) is the prospective approach although acknowledged that the present relationship approach may also be relevant in determining the issue.
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. Sadly for the child, at this time, I am satisfied that there is no benefit to her in attempting to formulate orders to provide her with the opportunity of developing a meaningful relationship with the father as a result of the following matters.
The child has been in the mother’s sole care since separation in 2015, when she was then aged approximately 10 months. Since that time, the father has had only six occasions of supervised time. As noted above, the Family Consultant raises genuine concerns, which I accept, as to the father’s commitment to parent the child.
At paragraph 55 of the first Family Report the Family Consultant observed that:-
The available evidence, particularly [the father’s] presentation at interview, clearly indicates that he has no intention of seeking shared care, let alone primary care, providing the mother remains in Australia. His conception of ‘connecting’ with his daughter, initially in professionally supervised time and subsequently for short periods in the care of him and the paternal family impressed as more self-centred than child-focussed.
The Family Consultant questioned what value, if any, there is in the child being involved in an incremental program of spend time with the father having regard to those matters.
The reservations of the Family Consultant have largely been borne out by subsequent events, that is, the father’s decisions to cease spending supervised time with the child following the mother’s relocation to I Town and to discontinue his application.
The father deposes in his Affidavit filed 6 February 2017 of his desire to have a father-daughter relationship in the future. However at this time, it is difficult to envisage the development of such relationship, particularly in circumstances where the unchallenged evidence of the Family Consultant is that the father is dismissive of the advice and recommendations of both she and Dr D, including the recommendations that he engage in on-going psychological counselling.
Having regard to that evidence, I am satisfied that it would be contrary to the child’s best interests to attempt to formulate orders for her to spend time with the father in circumstances where he does not seek such orders and has shown little commitment to parenting the child.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Section 60CC(2A) of the Act requires the Court to give greater weight to the considerations set out in s 60CC(2)(b) of the Act. As noted earlier in this judgment, the mother has levelled serious allegations of family violence perpetrated by the father against both she and the child. The father admits that he has engaged in verbal abuse of the mother but otherwise denies the allegations.
As a result of the father’s alleged conduct, the mother applied for and obtained a final Intervention Order in the Magistrates' Court of Victoria which continues until 2020. Both the mother and the child are protected persons under that Intervention Order.
Whilst denying the allegations of violence (save for verbal abuse), the father is observed by the Family Consultant to raise his voice in interview requiring her to request that he modify his behaviour; the father appears to have little awareness of his own behaviour or insight as to the impact of that behaviour upon others in his sphere.
The mother also raises serious allegations that the father has sexually abused the child. Those allegations relate to her alleged observation of the father permitting the child to hold his erect penis when she was aged approximately 10 months. The father denied that allegation. Those matters, together with the mother’s allegations that the father physically abused the mother and the child were the subject of investigation by the Department of Health and Human Services. The Magellan report provided by the Department to the Court concludes that those allegations cannot be substantiated. In the circumstances, I am satisfied that it is neither possible nor necessary to make a finding that the father has sexually abused the child.
Nonetheless, I am satisfied on the balance of probabilities that there would be an unacceptable risk of harm to the child were she to spend time with the father. The evidence of Dr D as set out in his report dated 22 August 2016 (and referred to earlier in this judgment) is that the father presents a moderate to high risk to the child. He observes that the father has issues with his general personality functioning which require psychological or psychiatric assistance over a period of two to three years. Dr D raises concerns as to substance abuse and the potential for sexual violence by the father. Having regard to those matters, Dr D at that time recommended that supervision between the father and the child was reasonable. I accept that evidence.
I must now consider the additional considerations pursuant to s 60CC(3).
(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;
The child is aged 2 years and nine months. Given her age, the Family Consultant has not conducted an interview with her, and there is no evidence as to her 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);
In the first Family Report, the Family Consultant observed that the child has a secure attachment with her mother. the child was observed to gravitate towards her mother and to accept verbal and non-verbal cues. the child was also observed to venture away to play independently.[11] Similarly positive observations were made by the Family Consultant of the child’s relationship with the mother during interview for the second Family Report. At paragraph 46 of that report the Family Consultant observed that the mother:-
…continued to impress as entirely authentic in that she did not overstate or understate the wellbeing of either herself or the child. …Her spontaneous and broad smile when alluding to the pair of them frolicking in shallows at I Town during the recently inclement spring weather is suggestive of an ability to nurture the child. [The mother’s] description of the way she entertains the child impressed as authentic and there was nothing to suggest from her demeanour at interview or her interactions with the child to suggest poor parenting capacity.
[11] Paragraph 56 of the first Family Report dated 8 June 2016
Having regard to the evidence of the Family Consultant I am satisfied that the child shares a warm, positive and loving relationship with the mother.
The Family Consultant was not able to undertake an observation of the child with the father due to his failure to attend at interview for the second Family Report. Nonetheless, the Family Consultant was critical of the attitude and insight displayed by the father towards the child’s needs. At paragraph 49 of the second Family Report, the Family Consultant stated that it was her view that the father has failed to demonstrate any appreciation for the child’s current vulnerability, given her age or her developmental need to remain primarily in the care of her mother who is her sole attachment figure. At paragraph 50 of the report, the Family Consultant described the father’s “lack of attunement to the child”. It was observed by the Family Consultant that the father was more focussed on his sense of entitlement as the child is his only child, rather than the needs of either the child or the mother.
Further at paragraph 51 of the second Family Report, the Family Consultant describes the father’s attitude to his parenting responsibilities in the following terms:-
At no time did he discuss a genuine desire to actively parent her in the everyday sense (apart from fund school fees); rather, he consistently alluded to the paternal grandmother and aunts as likely to be crucial to any care to [the child] he provided. His statement that he continues to work a six-day week … indicated that he has personal and financial commitments beyond facilitating spend-time with [the child]. At age 53 years and 11 months, [the father] has reportedly no prior experience in raising children and judging from the personal history he provided to [Dr D], has had a peripatetic and arguably chaotic life to day [sic] which has included alcohol and perhaps illicit substance use. Regardless of any personality problems of background of dysfunction, [the father] has not sought shared care as a formalised parenting arrangement and this writer is of the view that he is not willing or able to provide a role which would ensure the key developmental requirements of stability, predictability and routine. In this regard, the Court may provide for [the mother] to have sole parental responsibility.
I accept the observations of the Family Consultant with respect to the father’s relationship with the child and his attitude to his parental responsibilities.
(c)the extent to which each of the child’s parent 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
As noted earlier, the mother has been the sole carer for the child since the parties’ separation in March 2015. All of the evidence supports a finding that the mother has provided for the child’s physical, intellectual and emotional needs.
Orders were made for the father to spend supervised time with the child in May 2016. Notwithstanding those orders, the father has spent time with the child on only six occasions. He last spent time with her in August 2016. The father’s position, as indicated in his Affidavit filed 6 February 2017, is that he no longer seeks any orders to spend time or communicate with 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;
The orders I will make will ensure that there is no change to the existing care arrangements for the child; her settled and established living arrangements with the mother will continue.
(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;
The mother lives in Region J and the father in Suburb F. Due to the mother’s relocation to supported accommodation in I Town, the father ceased spending time with the child. During the interview with the Family Consultant for the purposes of the preparation of the second Family Report, the father indicated a willingness to pay the round-trip taxi fare for the mother and the child to enable him to spend time with her in K Town.[12] Notwithstanding that proposal, the father has not pursued time with the child.
(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);
[12] Paragraph 33 of the second Family Report
to provide for the needs of the child, including emotional and intellectual needs:
(ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has had sole care of the child since March 2015. She has provided for all aspects of the child’s physical, emotional and intellectual needs since that time. The evidence of the Family Consultant indicates that the child is thriving in the mother’s care. I accept that evidence. Accordingly, I am satisfied that the mother is well-equipped to continue to meet all of the child’s emotional, intellectual and physical needs.
The father pays no child support. Notwithstanding statements made by him to the Family Consultant as to his willingness to meet costs associated with him spending time with the child and also to meet payment of private school fees for the child, he has provided no financial support to the mother. The father has informed the Family Consultant that he works six days per week. Notwithstanding his commitment to work the father has failed in his responsibilities to support the child.
Further, having regard to the circumstances in which the father ceased spending time with the child as set out in the second Family Report, I am satisfied that the father has shown little commitment to the development of his relationship with the child.
Whilst in his Affidavit filed 6 February 2017 the father declares his ambition to have a father-daughter relationship in the future, he has demonstrated little commitment to providing for the child’s needs at this crucial time in her life. The mother is reliant upon CentreLink benefits and support from other community services to provide for the child’s needs. The father has neglected his responsibilities to support the child. Seemingly, the father has prioritised his own needs over and above those of his young child.
(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;
To the extent that these matters are relevant they are referred to earlier in the judgment.
(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;
This consideration is not relevant to the matter.
(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;
I have addressed the issues with respect to family violence earlier in this judgment.
(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;
There can be no doubt as to the desirability of orders finalising the proceedings. Whilst the father has expressed a desire to pursue a relationship with the child in the future, the reality is that he has not participated in these proceedings and has invited the Court to make final orders confirming the child’s current living arrangements. In the circumstances I am satisfied that the orders sought by the mother and the ICL are likely to provide the child with stability and consistency of care absent any conflict between her parents. Accordingly, I am satisfied that the orders I make are in the child’s best interests.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
Conclusion
The first matter I am required to determine is the question of the allocation of parental responsibility for the child. The mother seeks an order that she have sole parental responsibility for all aspects of the child’s care. That application is supported by the ICL. I am satisfied that the presumption of equal shared parental responsibility is rebutted in circumstances where:-
·The father has made admissions to Dr D and the Family Consultant that he has verbally abused the mother;
·Dr D assesses that the father poses a moderate to high risk to the child and further that there are significant risk factors which raise concerns about the potential for sexual violence;
·The admissions made by the father as to his consumption of alcohol and the potential that has to impact upon his capacity to care for the child;
·The poor communication between the mother and the father which is evident by the allegations made by each against the other as to their conduct coupled with the father’s admissions of verbal abuse of the mother;
·The father’s withdrawal from these proceedings.
Accordingly, I am satisfied that it is in the child’s best interest that the mother have sole parental responsibility for all decisions regarding her care, welfare and development.
The mother also seeks orders that the child live with her. The father does not seek any orders to spend time with the child.
All of the evidence confirms that the child is settled and well cared for by the mother. Accordingly, I am satisfied that it is in the child’s best interests that I make orders for her to continue to live with the mother. The father proposed that any order for the child to live with her mother be an order requiring that the mother live with the child in Australia. The mother’s evidence indicates her strong desire to remain in Australia with the child and she is actively pursuing an application that she be permitted to do so. She consents to an order in the terms originally sought by the father and an order in those terms is supported by the ICL. Having regard to those matters I am satisfied that it is appropriate that the order be made in those terms.
Both the mother and the ICL sought that the question of the father’s time be reserved. The evidence of the Family Consultant indicates that currently she has significant reservations as to the father’s ability to care for the child. Indeed at paragraph 55 of the second Family Report she expressed the view that “there is an unacceptable risk of harm for the child if [the father] becomes more actively involved in [her] care”. She also raised concerns as to the father’s “lack of genuine child-focus”.[13] On that basis the Family Consultant expressed reservations as to the reinstatement of professionally supervised time particularly in circumstances where the father has expressed a strong resistance to any psychological or psychiatric treatment as recommended by Dr D in his assessment.
[13] Paragraph 59 of the second Family Report dated 2 December 2016
Having regard to the concerns raised by the Family Consultant, coupled with the decision of the father to discontinue his application before the Court, I am satisfied that it is in the child’s best interests that the father’s time with her be reserved.
The mother also seeks an order that she be permitted to provide a copy of these Reasons for Judgment to the Department of Immigration. The ICL supports an order in those terms. That order is sought on the basis that the Department of Immigration may be assisted in considering the mother’s Visa application if these Reasons for Judgment are provided. I am satisfied that it is appropriate and in the child’s best interests for my Reasons for Judgment to be made available to that Department; there can be no doubt in my mind that the expeditious processing of the mother’s application by the Department is in the child’s best interests.
Accordingly, the orders I make are as follows:-
1.That all previous parenting orders be discharged.
2.That the mother have sole responsibility for making all decisions regarding the care, welfare and development of the child of the relationship, namely B born … 2014.
3.That the child live with the mother in Australia.
4.That the question of the father’s time with the child be reserved.
5.That the mother be at liberty to provide a copy of these orders and reasons for Judgment to the Department of Immigration.
6.That all extant parenting applications be otherwise dismissed.
7.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 March 2017
Associate:
Date: 3 March 2017
Key Legal Topics
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Family Law
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