NETTLES & NETTLES

[2016] FamCA 13

FAMILY COURT OF AUSTRALIA

NETTLES & NETTLES [2016] FamCA 13

FAMILY LAW – CHILDREN – Interim Parenting – Parental responsibility – With whom the child lives – With whom the child spends time with – Where the father is currently in custody – Where the father has been charged with a number of offences and engaged in violent behaviour and illicit drug use – Best interests of the child – Mother to have sole parental responsibility and child to live with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Ms Nettles

RESPONDENT: Mr Nettles

FILE NUMBER: PAC 5944 of 2015

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 January 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: McPhee Kelshaw

Orders as made on 18 January 2016

1. That the mother have sole parental responsibility for the child B born on … 2009.

2. That the child live with the mother.

3. That the child spend no time with and have no contact with the father.

It is further ordered

1. That the mother effect personal service of a sealed copy of these orders and the orders made on 18 January 2016 on the father as soon as practicable and in any event not less than 21 days from this date.

2. That the father file and serve a response to the mother’s application and a financial statement by 11 March 2016.

3. That the father have liberty to seek to relist these proceedings on not less than 14 days notice to the mother and to the Court.

4. That the proceedings be adjourned to the Registrar’s list at 11:00am on 29 March 2016 for consideration as to the further conduct of the matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nettles & Nettles 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 5944  of 2015

Ms Nettles

Applicant

And

Mr Nettles

Respondent

REASONS FOR JUDGMENT

1. These parenting proceedings in relation to the child B born in 2009 were commenced with the mother’s Initiating Application filed on 7 December 2015.

2. In that application the mother sought final parenting orders that in summary provided for the mother to have sole parental responsibility for the child, that the child live with the mother and that the child spend no time with the father. The mother otherwise sought interim parenting orders in the same terms.

3. The mother’s application and supporting documents were served personally on the respondent father on 17 December 2015 at the C Town Correctional Complex, C Town where the father at that time was in custody (Exh B).

4. The mother’s application was returnable on 14 January 2016 before a Registrar. On that date there was no appearance by or on behalf of the respondent father and the mother’s interim application was adjourned for interim hearing before the Court to 10:00am on 18 January 2016.

5. On 14 January 2016 a letter was forwarded by the mother’s solicitor to the father care of the C Town Correctional Complex informing the father that proceedings were so listed for interim hearing and that in the event there was no appearance by or on behalf of the father orders would be sought as set out in the mother’s application (Exh C).

6. By reason of the circumstances of urgency as referred to below the mother’s interim application was heard and determined on 18 January 2016 with parenting orders being made on an interim basis as sought by the mother. Due to the exigencies of the Court list on that day it was not possible to deliver ex tempore reasons and the delivery of reasons for judgment was reserved. The following are those reasons for judgment.

Context

1. The parties commenced to reside in a de facto relationship in December 2007 and married in 2008.

2. The subject B is the only child of that relationship. The mother was previously married and the child of that marriage D born in 2002 was part of the parties’ household throughout cohabitation.

3. In support of the orders sought by her, the mother relies upon her affidavit filed on 7 December 2015 together with documents produced on subpoena by the New South Wales Police Service (Exh C).

Separation

1. The parties separated on 30 April 2015.

2. The mother makes serious allegations as to domestic violence suffered by her at the hands of the father and his drug use during the latter period of cohabitation. She further makes allegations as to the disposition of matrimonial funds and property by the father to fund his drug habit.

3. In the early months of 2015 the father assaulted the child D on a number of occasions.

4. In early April 2015 the father left the then matrimonial home for a few days, threatening the mother and children with a knife that he would “puncture your tyres so you can’t get away”. Subsequently the father’s attendances at the matrimonial home became irregular.

5. On 3 June 2015 the mother attended court proceedings relating to the father to hear his solicitor make representations to the court that the father was using “ice” (crystal methamphetamine).

6. The father’s present police record (Exh C) reveals a number of criminal convictions prior to the commencement of the parties’ relationship. At the time of separation and thereafter the father has been charged with numerous offences including use carriage service to menace, destroy or damage property, stalk intimidate with intention to cause physical harm, possess prohibited drug, being in possession of goods suspected of being stolen, knowingly deal with the proceeds of crime, dishonestly obtain property by deception, break enter and steal, carry cutting weapon, and a number of charges relating to contravene a prohibition or restriction in an Apprehended Domestic Violence Order. The circumstances relating to those charges are set out below.

7. Subsequent to separation the mother has received text messages from the father, mostly rambling and nonsense. On 4 May 2015 the father sent an audio message to the mother that spoke of a man’s partner who had died. The mother was gravely concerned by that communication fearing physical harm to herself. 

8. In the early hours of the morning of 5 May 2015 the mother and children were at her parents’ home. The father attended at that home and attempted to force entry into the home using a tomahawk. The father was unable to gain access to the home through the front security door and then broke the front lounge room window but could not gain entry. The father then threatened to burn down the matrimonial home. The father appeared to have left the premises but then returned driving his vehicle into the side fence of the mother’s parents’ property attempting to gain access. The father then drove his car into the double gates at the rear of the property forcing the double gates off the hinges and smashing his car into the rear of the mother’s car.

9. All the while the mother, the children and the mother’s parents were crying and screaming awaiting the police to attend. As the police arrived the father decamped from the premises.

10. That day a provisional Apprehended Domestic Violence Order was made for the protection of the mother and the two children. Subsequently the mother received a telephone communication from E Town High School, her place of employment and where the child D attends, to the effect that the father had contacted the school looking for the mother. The father was later arrested nearby.

11. The mother subsequently attended the matrimonial F Town property and noticed a large amount of electrical appliances that had not been there previously. Police attended and searched the property and the result of that search resulted in the arrest of the father and a number of charges against him as referred to above.

12. On 5 May 2015, upon his arrest the father was refused bail and he was further refused bail at Penrith Local Court on 6 May 2015.

The ADVO order

1. On 3 June 2015, a final Apprehended Domestic Violence Order was granted for a period of two years for the protection of the mother and the two children. On the same day the father was granted bail on the basis that he attend a long-term residential rehabilitation facility at G Town on the New South Wales Central Coast. On about 29 August 2015 the father absconded from the rehabilitation facility having further used illicit drugs and after refusing to undertake drug testing by the facility.

Further charges

1. On 2 September 2015 the father was again arrested and charged with theft from his former employer, the Salvation Army. The father was granted police bail until his court appearance on 15 September 2015 at which he was again granted bail. On 16 September 2015 the father failed a random drug test undertaken by the Department of Corrective Services and the father’s bail was revoked. The father was again granted bail by the court on 18 September 2015 on the condition that he reside with his parents at H Town and report regularly to the police.

2. The father’s parents were unaware of the new bail conditions and had not agreed to same and on 19 September 2015 the father’s bail was again revoked.

3. On 30 September 2015 the mother and the father’s parents received a lengthy email from the father admitting that he had been using and dealing in drugs, having sold his motor vehicle for $10,000 and spending those funds on drugs. Subsequently the husband attempted to withdraw funds from the matrimonial home loan at the Commonwealth Bank and in so doing threatened the bank teller.

4. The father was subsequently seen in the vicinity of the E Town High School with the school being placed in lockdown as a consequence.

5. The father subsequently evaded arrest until 5 November 2015 when he was arrested at a pawnshop in I Town with stolen goods. The father was refused bail at I Town Local Court on 6 November 2015 and he remains in custody.

Interim Parenting

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.     In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was 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. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. The above comments are equally apposite to an application heard ex parte or in the absence of a party.

5. Much of the factual background set out above is not in issue and is a matter of public record. Otherwise in some respects the mother’s allegations as to the fathers conduct are untested. In the circumstances it is entirely appropriate that orders be made notwithstanding the non-appearance of the father or a legal representative on his behalf. No application has been received that he be permitted to attend electronically.

Interim Parenting

1. The relevant principles in relation to parenting are well settled: Goode and Goode [2006] FamCA 1346. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In the context of this matter it is not necessary to undertake a detailed examination of each of the consideration set out in s 60CC. The issues are limited as discussed above.

3. Section 61DA of the Act provides that when making a parenting order, 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.

4. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

5. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));

   b)In interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3));

   c)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).

6. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the “legislative pathway”.

7. Clearly in this matter the presumption is not to apply and by reason of the best interest considerations referred to below it is appropriate that the mother hold sole parental responsibility for the child.

8. Thus the orders to be made are guided by the best interests principles.

The primary considerations: s 60CC(2)

1. The primary considerations 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.

2. Regard has been had to the additional considerations in s 60CC(3) such as are relevant but in the context of this matter the determination can readily be resolved by the protective factors set out in s60CC(2)(b) with that consideration taking primacy (s 60CC(2A)) .

3. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

4. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

5. It is clear that in the present circumstances any relationship between the child and the father could not possibly be meaningful in the context of being important, significant and valuable to the child. The child was terrorised by the actions of the father at the mother’s parents’ home. The father remains in custody and there appears to be a strong prospect that he will spend a significant period in custody following sentence.

The additional considerations

1. The more relevant considerations are briefly discussed hereunder.

2. There is no evidence before the Court as to any relevant wishes expressed by the child. An inference clearly arises that against the factual background of this matter the child would have significant concerns about having any contact whatsoever with his father.

3. The child has a good relationship with the mother who has been his primary carer and will continue to be so. His relationship with his father has been fractured by the father’s aberrant violent behaviour and his dishonesty and drug abuse. Any prospects of the child’s relationship with the father resuming await determination of the pending criminal proceedings against the father.

4. The orders proposed by the mother will see the child have at least on an interim basis no contact with the father in circumstances where the father has been part of the household for some years until separation in April 2015. Such an order will have a beneficial effect on the child in that he, as far as possible, has the fear of further aberrant behaviour by the father removed. The child will remain in the primary care of his mother.

5. The father at present remains in custody and there is a significant prospect that following determination of the present criminal proceedings he will remain in custody for a significant period. Thus there is no present issue as to practical questions of the child spending time with the father.

6. The mother has been the primary carer of the child and will continue to do so. There is no suggestion that she has anything other than full capacity to provide for the child in a caring and protective way. The father has demonstrated totally inappropriate capacity to provide for the child and has subjected the child to and emotional trauma by reason of his behaviour.

1. The father has demonstrated no regard to having an appropriate attitude to the child and his responsibilities of parenthood. He has regrettably enmeshed the child in the circumstances of his violence, dishonesty and drug abuse. The mother has demonstrated a proper attitude to the child and her responsibilities of parenthood particularly more recently in taking protective action in relation to the child.

2. The father’s conduct has been considered above and his violence, intimidation and threats to the mother and his involvement of the child in his aberrant behaviour is a significant disentitling factor in this matter.

3. There is currently a final apprehended domestic violence order for a period of two years for the protection of the mother and the two children including the subject child. The nature of that order and its circumstances are referred to above.

4. These are interim proceedings that await final determination in due course.

5. There are no other relevant factors or circumstances for consideration.

6. It is the best interest of the child that orders be made as sought on an interim basis.

7. Orders will be made accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 January 2016.

Associate: 

Date:  22 January 2016