NASHI & SHONA
[2016] FamCA 291
•28 April 2016
FAMILY COURT OF AUSTRALIA
| NASHI & SHONA | [2016] FamCA 291 |
| FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Parental responsibility – Best interests of the child – No participation by the father – Issues of family violence – Issues of the father’s mental health – Unacceptable risk of harm – Need to protect the child from harm – Nature of the child’s relationship with each parent – Capacity of each parent to provide for the child’s needs – Attitude to the child and responsibilities of parenthood – Travel FAMILY LAW – PRACTICE AND PROCEDURE - Non-appearance of a party – Undefended final hearing. |
| Evidence Act 1995 (Cth) s 140. Deiter & Deiter [2011] FamCAFC 82. |
| APPLICANT: | Ms Nashi |
| RESPONDENT: | Mr Shona |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Reeve |
| FILE NUMBER: | PAC | 3419 | of | 2013 |
| DATE DELIVERED: | 28 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 15 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Weaver |
| SOLICITOR FOR THE APPLICANT: | Mahony Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
Orders
(1)That the mother shall have sole parental responsibility for the child the child B born … 2007 (“the child”).
(2)That the child shall live with his mother.
(3)That the child shall not spend any time or communicate with his father.
(4)That pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and the child B, the father shall:
(a)Be restrained and prohibited from removing or attempting to remove the child from the mother’s care, and
(b)Be restrained from approaching the mother or the child, attending at or being within 100 metres of the mother’s residence or place of employment or attending at or being within 100 metres of the child’s school.
(5)The injunctions referred to in Order (4) are orders to which the power of arrest under s 68C of the Family Law Act 1975 (Cth) applies.
(6)IT IS FURTHER NOTED that Order 1 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the child travelling overseas without first notifying or obtaining the consent of the father.
(7)Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother shall be authorised and entitled to remove the child from the Commonwealth of Australia for the purpose of travel at her discretion.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nashi & Shona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3419 of 2013
| Ms Nashi |
Applicant
And
| Mr Shona |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of an eight year old boy, the child, the only child of Mr Shona (“the father”) and Ms Nashi (“the mother”).
The parents commenced a relationship in 1998 and separated in September 2012. In August 2013, the mother commenced parenting proceedings in this Court. On 15 December 2015 the matter was listed for undefended hearing. The father did not attend and did not comply with directions to file documents and the matter proceeded to final hearing on an undefended basis.
The mother seeks orders that she have sole parental responsibility for the child, the child live with her and not spend any time with the father, and the father be restrained from approaching the mother or child or coming within 100m of their place of residence or employment.
In his last filed Response to Initiating Application in 2014, the father sought that the mother’s application be dismissed. He did not propose any parenting orders for the child.
The Independent Children’s Lawyer (ICL) supports the orders proposed by the mother.
On 15 December 2015 the matter was listed for undefended hearing. The father did not attend and did not comply with trial directions. The matter proceeded to final hearing on an undefended basis. On 15 December I made orders as sought by the mother and supported by the ICL and indicated I would deliver my reasons at a later date. These are those Reasons.
The father’s non-attendance
The proceedings were initiated by the mother in August 2013 and allocated to the Magellan program in September 2013.
It was noted by the registrar in October 2013 that the father faced criminal proceedings which were listed at the E Centre in early February 2014.
When the matter next came before the Court on 18 February 2014, it was noted that the father’s criminal proceedings were not concluded as anticipated and by consent the parenting proceedings were adjourned for further case management to May 2014.
In March 2014 the mother filed an Application in a Case seeking orders to facilitate the child obtaining a passport and allowing her to travel to Country D with the child in 2014. In May 2014, the father filed a Response to an Initiating Application, Response to an Application in a Case and affidavit.
In August 2014 the father filed a Notice of Address for Service.
On 18 August 2014, the registrar noted that the father’s criminal proceedings were continuing as the father had been found guilty but had subsequently appealed. The matter was transferred to Foster J for hearing of the mother’s application to travel with the child to Country D.
On 18 August 2014, Foster J heard the mother’s application. In his Reasons for Judgment[1], Foster J discusses that the father sought to have the mother’s application adjourned on the basis that he was unwilling to file an affidavit in the proceedings by reason of the pending criminal proceedings. Foster J dismissed that the father’s application for an adjournment and made orders permitting the child to travel internationally.
[1]Nashi & Shona [2014] FamCA 706
On 11 November 2014 the matter was listed for directions before a registrar with an appearance on behalf of the father. The father has not appeared in the proceedings since November 2014 or filed any documents since August 2014.
In March 2015, the father did not attend interviews with the family consultant for the purposes of preparation of a Magellan Family Report. It is noted by the family consultant that attempts were made to contact the father by telephone, email and letter to advise the father of the appointment.
On 14 July 2015, Foster J noted that the Magellan Family Report and Orders had been sent to the father at his address for service but had been returned to the sender. The ICL was ordered to send the Report and orders to the email address on the father’s Notice of Address for Service and inform the father that in the absence of an appearance by or on his behalf on 11 August 2015 consideration will be given to the proceedings being listed on an undefended basis. A letter was located on the court file from the ICL addressed to the father’s email address enclosing the orders, report and informing the father that “if you do not attend on this occasion Her Honour Justice Hannam will give consideration to the proceedings being listed on an undefended basis”.
On 10 August 2015, an affidavit was filed on behalf of the mother’s solicitor detailing that the mother’s trial affidavit had been served upon the father’s email address.
On 11 August 2015, there was no appearance by the father and the matter was adjourned to 15 December 2015 for undefended hearing and directions were made in relation to the filing of material. These orders were posted by the Court to the father’s Address for Service.
On 15 December 2015, there was no appearance by or on behalf of the father.
At the hearing, the mother tendered a letter dated 11 November 2015 sent to the father’s address for service enclosing by way of service the mother’s Amended Initiating Application filed 11 November 2015 (Exhibit 1). The Amended Initiating Application notes the court date of 15 December 2015. The letter and enclosures were returned to the sender. The address on the letter reads “Also by email: [father’s email address]” and it can be assumed that the letter and application were also sent by email.
As noted the father has not participated in the proceedings since November 2014.
Given the father’s earlier engagement in the proceedings, the father is clearly aware that there are proceedings on foot. The mother’s trial affidavit was served on the father’s email address on his Notice of Address for Service. The court orders of 11 August 2015 listing the matter for undefended hearing on 15 December 2015 were posted to the father’s address for service. The father has been posted the mother’s Amended Initiating Application (which notes the court date) and it appears the application has also been emailed to him.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
On 15 December 2015, the mother and ICL sought that the Court proceed to deal with the matter to finality in the absence of the father. In the event that the Court was not disposed to apply the provisions of r 16.07, an adjournment of the proceedings would have been necessitated.
Counsel for the mother raised that the father’s criminal proceedings may have been listed on the same date. However, the father has not made any attempt to contact the Court, to vacate the hearing or explain the circumstances in which his criminal proceedings came to be listed on the same date.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[2], and to the principles for the conduct of child-related proceedings[3], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father. The father has disengaged from the proceedings, has failed to comply with directions and I am satisfied he is on notice that the proceedings may be dealt with to finality in his absence.
[2] [2014] FamCAFC 14
[3] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Background
The father, who is currently 58 years old, and the mother who is 40 years old, met in 1998 when the mother was an au-pair for the father’s children from a previous relationship. The parents commenced a relationship in 1999 and separated in September 2012.
Both parents are of Country D background. The mother was born in Country D and is currently a permanent resident in Australia. She was assisted by a Country D interpreter in the hearing.
As detailed later in these Reasons, the mother says she was subjected to verbal abuse, physical violence and controlling behaviour by the father for most of the relationship.
The mother says that she was required to work for the father’s business during the relationship from the family home and was not permitted by the father to gain independent employment during the relationship other than from 2006 to 2007 to support her application for a skilled permanent residency visa.
The parties’ only child, B, was born in 2007.
The mother was the child’s primary carer during the relationship with the father occasionally assisting with the child’s care.
The mother and child left the family home on 12 September 2012. The child continued to live with the mother and spent time with the father informally as arranged between the parents.
The father has not spent time with the child since June 2013, that is, for more than two and a half years. At no time has he sought any form of interim orders to spend time with the child.
In August 2013, the mother initiated proceedings in this Court.
Family violence
The mother describes a long history of physically violent, abusive and controlling behaviour towards her and towards the child.
The mother details a number of verbally and physically abusive incidents in 2010, 2011, 2012 and 2013.
The mother deposes to the father threatening to kill her or himself on a number of occasions. On 27 January 2011 the father threatened that if the mother left or fought with him he would kill himself in front of her family’s business so that her family would be shamed. On 19 October 2011 he said to the mother “Why did you give birth to the child? We all have to kill ourselves. [Ms Nashi] you are a devil” and “I make everyone of your family died miserable way and make your relative live in shame (sic)”. In September 2012 when the parties were separating the father told her that they should commit suicide together as a family by asking her “How do you want to die”. The mother states that on 25 February 2013 the father threatened to kill himself at the child’s school stating “if you don’t want to kill me, I’ll kill myself here. I will get all the students here and show them how painful I am and give them trauma”. The incidents in January 2011, September 2012 and February 2013 were reported to NSW Police and to the Department of Family and Community Services in June 2013.
In her affidavit, the mother details specific incidents in 2010 where the father kicked her arm while yelling at her and another incident where he hit her with force on her ear while she was holding the child, affecting her hearing.
The mother further details in 2011 incidents where the father told her she should not have “should not be born” in front of the child, hit her face repeatedly in front of the child, threatened to “make a mess with everyone of [her] family” if she ran away, grabbed her hair and hit her in the face and head.
On 19 May 2014 at the Local Court, the father was found guilty of two counts of common assault and stalking/intimidating with intent to cause fear of physical or mental harm on 11 September 2012 and sentenced to a s 10 bond for 18 months (Exhibit 2). Unfortunately the facts on which the father was sentenced are not available. In her Statement to Police in relation to the incidents on 11 September 2012, the mother details that while the child was in the room:
…[the father] asked me to take some Photographs of his left hand…Whilst I was taking the photographs he told me that I was taking the photographs wrong… As I was about to press the camera button he said “its to late” and hit me several times in the back of the head with his open palm. [The father] then said “I am going to start hitting you know (sic) it’s too late, it’s too late. Stupid. Fingers are wrong.” [The father] has then hit me again in the back of the head with his open palm. [The father] has then verbally abused me and told me I bring out the ugliness of him and he has then hit me again with an open palm.
The mother says that she recorded this incident and provided a copy of the recording to the police on 26 June 2013 (the same date as her Statement) and on 31 July 2015. The mother also includes a transcription of the recording in her affidavit, although the recording itself was not tendered in Court.
A final Apprehended Violence Order (AVO) for the protection of the mother was also made on 19 May 2014, restraining the father coming within 200m of the mother’s premises, from approaching or contacting the mother except through his legal representative or from approaching the school that the mother may attend for the purposes of child care or education. This AVO expired in May 2015.
Community Services records include a report on 18 June 2013 by an unidentified caller who appears to be associated with the child’s school. The caller reported that:
…[at the child’s school] [Mr Shona] [the father] was paranoid so he took [Ms Nashi] [the mother] and the child behind his car for 20 minutes where they were arguing. Caller saw [Mr Shona] grab [Ms Nashi] by the shoulder and shake her in front of the child. Then [Mr Shona] tried to push the child into the car…
The mother also states that the father perpetrated coercive and controlling behaviour against her. She says that he controlled her movements and demanded that she ask for his permission before she left the home. She says that for most of the relationship she was not permitted to seek employment outside of the home and was not permitted to travel to Country D to see her family. The mother annexes text messages and emails from the father post-separation as evidence of the father’s controlling behaviour. In a text message the mother says was sent on 26 October 2012 the father demands that the mother send him “few photos to prove you are taking my son to playgroup…you and the child have to be in the photos. There also must be some evidence to prove they are new photos.” In an email sent on 23 June 2013, the father writes “You have not reported the child’s daily activities properly. “[Country D school]” is not a report. The daily report ended up being a daily food menu. There is also no photos to support the diet.” In an email sent on 24 June 2013, the father wrote “If you are scared, it was because you knew you have been hurting many people… I have the responsibility to stop you from hurting others and yourself. If you behave, there is nothing to be scared”.
Given the unchallenged detailed evidence of the mother, the finding of guilt in criminal proceedings, Police and Community Services’ records and the father’s communication to the mother, I am satisfied that the father has perpetrated family violence against the mother.
Child abuse
The mother also says that the father employed frequent excessive discipline against the child and was psychologically abusive of towards the child, primarily between 2009 and 2012.
The mother states the father hit the child on the face and legs as punishment, including when the child was crying or when he came to the mother’s aid, although she does not provide details of specific instances.
The mother also states that the father encouraged the child to kill animals when camping or made the child watch violent anime cartoons from the age of four but provides no specific details or incidents.
The mother reports that from 2010 the father would bring the child into the room when he assaulted her so that the child would watch and be taught “how you treat women”.
It is detailed in the Family Report dated 2 April 2015 that the child said:
…his father punched him but when asked if he remembers his father doing that he said “no, but my mum said so”…
He said that he can remember seeing “Dad pull Mum’s hair”. the child said that he cannot remember any happy time when he lived with both his mother and his father.
It is later opined:
[The mother] said that [the father] was violent towards the child and although the child said his father used to punch him, he also said he could not remember it. There are a number of possible reasons for this. For example, it might not have happened or, the child may have been physically assaulted by his father and the resulting trauma has impacted his long-term memory.
[B] did say that he can remember his father pulling his mother’s hair…
The family consultant concluded that orders for the child to spend time with the father would be distressing for the child.
Mental health
In this matter there are significant concerns about the father’s mental health. Due to the father’s disengagement with the proceedings, there was no psychological or psychiatric assessment of the father available to the Court to mitigate these concerns.
In the transcript of the District Court proceedings, counsel for the father told the bench that the father had been initially assessed by Dr F who provided a preliminary report, tendered in the Local Court. In that report Dr F was said to have opined that the father was a candidate for a s 32 application under the Mental Health (Forensic Provisions) Act 1990 (NSW). The Court was also told that the father was subsequently assessed by a forensic psychiatrist Dr G, who scheduled the father “under the mental health legislation and he was involuntarily hospitalised.” It appears that by 2 June 2015, Dr F had indicated that a s 32 application “could not proceed”, although no further detail is provided (Exhibit 7).
NSW Police records provide some further detail. In a COPS event on 19 November 2014, it is recorded:
The [father] saw the DOC in relation to a mental health assessment for an upcoming Court appearance whereby the [father] has been charged with assault. In brief, he presented as psychotic. He was labile in mood. He was thought disordered with marked tangentiality. He spoke about various pseudoscientific themes, described himself as a ‘DNA researcher’, and alluded to various ‘experiments’ he had conducted from a young age … He spoke about suicide in a thought disordered fashion when the DOC explained the rationale for input from mental services, but during the assessment denied any specific ideas of harming himself or others.
It is recorded that the doctor asked the father to remain in his office for an ambulance to convey him to hospital for further assessment however the father left. The doctor completed a schedule 1 and forwarded it to police. The police then located the father when at a hospital for an unrelated matter and forwarded the schedule 1 to the treating doctor (Exhibit 3).
The father’s preoccupation with DNA and scientific experiments is reflected in an email to the mother on 23 June 2013 in which the father stated:
Instead of being negative, I am further convinced that I need to devote more efforts on DNA.
Let’s solve this problem with science.
Human mind is still a challenging subject. Let’s volunteer ourselves to scientific experiments. Let’s turn a bad thing into a beautiful one.
Shall we have the courage and wisdom to do that, it will be a beautiful gift to the child and the society.
This is the creation of a beautiful DNA. My self-discipline of turning a bad experience into a good one…
In a Community Services’ record of a report on 18 June 2013 by a caller who it is inferred is associated with the child’s school, it is detailed that:
Caller stated on Thursday afternoon there was a school meeting with the Classroom Teacher, Assistant Principal, [the father], [the mother], the child… [the father] said that the child was not to get any praise or to be given any award. [The father] had weird ideas saying he was doing DNA research and is doing an experiment involving the child.
…
Caller stated that today… [the father] was unstable and that he has been over the last few days. Caller asked the father to put on a P badge (Parent’s Badge) and he said he did not think he could do this. [The father] said that at 1:30pm today he emailed caller in regards to the child’s attendance… [the father] went ballistic because the caller did not reply immediately. Caller asked who “we” was in this email and [the father] said that [we] is himself and his Research Team. Then [the father] started speaking harshly in [Country D] to the Principal and was telling the caller to get out of the room…. Caller described [the father] as “psychotic” but said he has no known diagnosis. (Exhibit 5)
While the father did not participate in the Family Report interviews, the family consultant opined that the description given by the mother of the father’s behaviour “raises concerns about his mental health. She described narcissistic personality traits, including feelings of entitlement and lack of empathy for others”. It is noted however that this is not an expert opinion.
While there is no clinical assessment or diagnosis of the father available to the Court, in circumstances where the father has recently been scheduled under mental health legislation and involuntarily hospitalised, his erratic behaviour and his “experiments” involving the child, there are very significant concerns about the father’s mental health.
Discussion of risk of harm
In M v M[4], the High Court said at [24]-[25]:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[4] (1988) 166 CLR 69; [1988] HCA 68.
In Deiter & Deiter[5], a case which dealt with an assessment of risk in interim hearings the Full Court said at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
[5] [2011] FamCAFC 82.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[6] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[6] [2007] FamCA 1235 at [72].
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[7].
[7] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
For the reasons given previously I am satisfied that the father has perpetrated family violence against the mother to which the child was exposed and that there are very significant concerns about the father’s mental health and behaviour. The father has not engaged with the proceedings and has not provided any information about his mental health or treatment.
In the Family Report, the family consultant relevantly opined that:
Children can be adversely affected through ongoing contact with a person who perpetrates family violence (including the exercise of controlling behaviour and psychological abuse) in a number of ways. For example, a higher risk of being the victim of violence, exposure to ongoing undermining of the other parent’s role as a parent and that parents’ relationships with the child, increased exposure to threats or actual violence against the other parent, increased risk of psychological abuse and manipulation of the child and increased risk of exposure to neglectful or irresponsible parenting.
I attach significant weight to the opinion of the family consultant.
The father makes no proposal to mitigate the risk to the child. In these circumstances I am satisfied that there is an unacceptable risk of the child being exposed to family violence or being subjected to psychological abuse by the father, and suffering serious psychological harm.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that 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.
The principles underlying these objects 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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Greater weight is to be given to the need to protect the child from harm.
The benefit of a meaningful relationship
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[8] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[9] and has also agreed with the reasoning of Bennett J in G & C[10]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[8] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[9] (2007) Fam LR 518
[10] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The child has always lived with his mother and it is inferred that his relationship with his mother is important and significant. The family consultant observed the child with his mother upon their arrival and departure for assessment and there was “nothing remarkable about the observation”.
In the Family Report, the family consultant was “unable to assess any potentially positive aspects of a future relationship” between the child and the father.
The child has not spent time with the father for more than two and half years, and given his young age it may be inferred that any relationship has been significantly damaged. In any event, given the father’s behaviour and the risk of harm it is difficult to see that the child will benefit from a significant relationship with the father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This consideration is of great significance in this matter.
The mother deposes to a long history of controlling and violent behaviour perpetrated by the father against her and the child. It was also submitted on behalf of the mother that documents indicated the father suffered from a mental health condition, the assessment or treatment of which is unknown.
For the reasons given I am satisfied that the father has perpetrated family violence, to which the child was exposed, and that there are significant concerns about the father’s mental health. For the reasons given I am also satisfied that there is an unacceptable risk of the child being exposed to family violence or being subjected to psychological abuse by the father, and suffering serious psychological harm.
In my view the mother’s proposed orders under which the child lives with her and there is an injunction restraining contact between the child and the father gives appropriate weight to this consideration.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
The family consultant details in the Family Report that the child expressed that “he does not remember when he saw his father and said that he does not miss him.” He described the father as “scary” and said that he is often “angry”. The child said that he did not want to see his father on the day of the interviews and that he might recognise his father if he saw him on the street and that he would run away if he did.
The family consultant is of the opinion that orders for the child to spend time with the father would be distressing for the child.
Given the child’s age, limited weight is attached to his views, except to the extent that spending time with the father would likely cause the child distress.
Nature of the child’s relationship with each parent and other significant persons
As indicated, it can be inferred that the child has an important and significant relationship with the mother. It was noted by the family consultant that there was “nothing remarkable” in her limited observation of the child and the mother and that there was “no information to indicate that the child is, or feels unsafe in her care”.
While the family consultant’s assessment is limited by the inability to interview the father or observe him with the child, given the length of time since the child has seen the father and his reported views of the father it is inferred that there is no existing positive relationship between the child and the father.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
The mother has made the decisions in relation to the child’s education and health since at least June 2013.
The father spent time with the child and was involved in his education after separation, although he appears to have done so on some occasions by turning up unannounced at the child’s school and inappropriately engaging with staff at the child’s school. The father has not spent time with or communicated with the child since June 2013, although it may be inferred the mother has not made the child available. The father has not however made any proposal or engaged with the parenting proceedings to spend time with the child. He proposed in his Response that the mother’s application be dismissed and did not seek any orders for time with the child.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother solely maintains the child. The mother gives unchallenged evidence that the father does not pay child support or provide financial assistance for the child’s care.
Likely effect of change in the child’s circumstances
The orders proposed by the mother would not change the current circumstances of the child.
If the Court made orders for the child to spend time with the father, the family consultant was of the opinion that the child would find this distressing.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Any practical difficulty or expense associated with the child spending time with the father is unknown.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
The mother appears to be meeting the child’s needs. The child expressed to the family consultant that he was happy at school, talked about his friends and playing football. The mother says that the child is in good health.
There are serious concerns about the father’s mental health and his parenting capacity. In particular, the exposure of the child to family violence and the report to Community Services that the father told the caller (who appears to be associated with the child’s school) “[The child] was not to get any praise or to be given any award” and that he was “doing an experiment involving the child” suggest serious limitations in the father’s reflective capacity and capacity to meet the child’s emotional and intellectual needs.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Both parents are of Country D background. Pursuant to orders in August 2014, the mother travelled to Country D with the child to visit her extended family. The mother seeks particular orders permitting her to apply for a passport for the child and to travel overseas with her without obtaining the consent of the father. Travel to Country D would enhance the child’s opportunity to enjoy his culture.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The mother has demonstrated a proper attitude to the child and to her responsibilities of parenthood.
The father has demonstrated a poor attitude to the child and his responsibilities in exposing the child to family violence and in his disengagement in these proceedings to determine the parenting arrangements for these children. Further, the father’s email to the mother to “volunteer ourselves to scientific experiments” and the report of Community Services that the father told the caller he was “doing an experiment involving the child” shows a concerning attitude to the responsibilities of parenthood.
Family violence
This issue has been discussed earlier in these Reasons and is a weighty consideration in this matter.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
In circumstances where the father has been disengaged from the proceedings since 2014 it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the children’s parenting arrangements.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[11] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[11] (2006) FLC 93-286
In this matter, the mother is seeking to hold sole parental responsibility, which is supported by the ICL. The father makes no proposal as to parental responsibility.
Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, an order providing that a parent have sole parental responsibility for the children must mean that the parent would have all the duties, powers, responsibilities and authority which by law parents have in relation to children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In circumstances where I am satisfied that the father has perpetrated family violence against the mother the presumption does not apply.
Given the circumstances of family violence, the tenor of the father’s communication with the mother post-separation, the significant concerns about the father’s mental health and the complete break in communication between the parents, I am satisfied it is in child’s best interests for the mother to hold sole parental responsibility for him
Given that I have decided that the mother is to have sole parental responsibility for the child, I need not turn to s 65DAA of the Act.
Conclusion
In considering each of the matters relating to the child’s best interests as required by the Act I have attached particular weight to the primary consideration of the need to protect the children from harm which favours the orders proposed by the mother and supported by the ICL. Other weighty factors include the nature of the child’s relationship with each parent, parental capacity and the attitude to the child and responsibilities of parenthood.
Having regard to all of the factors in relation to the best interests of the child I make orders as sought by the mother and supported by the ICL for the child to live with the mother and the restraints as sought by the mother be ordered.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 April 2016.
Legal Associate:
Date: 28 April 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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