NEWTON & HENZEL

FAMILY COURT OF AUSTRALIA

NEWTON & HENZEL

[2014] FamCA 658

FAMILY LAW – CHILDREN – Father’s application to spend time with the children – father seeks orders for equal shared parental responsibility – where the mother seeks sole parental responsibility and for the children to spend no time with nor communicate with the father – mother’s application to change the children’s surname – where the father has served a prison sentence for the sexual abuse of one of the children – where the father has a history of committing family violence and abuse – where the children have not seen the father for several years – finding of unacceptable risk made – best interests – children to spend no time with nor communicate with the father – mother permitted to change the children’s surnames – sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks leave to proceed on an undefended basis – where the father has filed an initiating application – where the father has not filed an amended initiating application or any affidavits of evidence in chief – where the father did not attend the hearing.

Family Law Act 1975 (Cth)

G & C [2006] FamCA 994
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520

APPLICANT:

Mr Newton

RESPONDENT:

Ms Henzel

INDEPENDENT CHILDREN’S LAWYER:

Westminster Lawyers Pty Ltd

FILE NUMBER:

DGC

3041

2012

DATE DELIVERED:

15 August 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

7 May 2014

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Weerappah

SOLICITOR FOR THE RESPONDENT:	Bayside Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Crozier-Durham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Westminster Lawyers Pty Ltd

Orders

IT IS ORDERED THAT

The mother have leave to proceed on an undefended basis.
The father’s initiating application filed 28 September 2012 be dismissed.
The mother have sole parental responsibility for the children of the marriage B born … 1997, C born … 1997, D born … 2002, E born … 2005 and F born … 2007.
The children spend no time with nor communicate with the father.
The mother be authorised to apply to the relevant authority to change the names of the children or any of them notwithstanding that the consent of the father has not been obtained.
The mother be authorised to enrol the children or any of them in any school under a name different to that on their birth certificates.
As soon as practicable the Independent Children’s Lawyer serve a sealed copy of the orders made 15 August 2014 and reasons for judgment delivered 15 August 2014 upon the father by pre-paid post addressed to him as follows:
a)   c/- G Lawyers;
b)     H Street, Suburb I VIC; and
c)     J Street, Suburb K VIC.
The appointment of the Independent Children’s Lawyer be otherwise discharged.
All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newton & Henzel 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 MELBOURNE

FILE NUMBER: DGC3041/2012

Mr Newton

APPLICANT

AND

Ms Henzel

RESPONDENT

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The father in this case has not spent any time with the five children of the marriage since approximately August 2010. His relationship with both the mother and the children is one punctuated by a lengthy history of family violence and his ultimate conviction and imprisonment for the sexual abuse of the child C.
It is because of this history that the mother says that she should have sole parental responsibility for the children and why she opposed the father’s application to spend any time with the children.

Background

The father and the mother commenced cohabitation in 1996, married in 1998, and separated on a final basis in August 2010. The parties’ separation appears to have been precipitated by disclosures made by the child C that the father had sexually abused her, which will be discussed later in these reasons.
There are five children of the relationship, twins B and C who are both 17 years of age, D who is 12 years of age, E who is nine years of age and F who is seven years of age, all of whom except for B live with the mother and all of whom have not spent any time with the father since in or about August 2010. The child B lives with his girlfriend and her mother and he sees the mother and his siblings regularly. The mother also has an adult daughter aged 20 years from a previous relationship who lives independently.
On 10 March 2011 the father pled guilty to and was convicted of the following offences:
(a)    3 counts of an indecent act with a child under 16;
(b)    2 counts of attempt to procure for sexual penetration of a child under 16;
(c)    4 counts of contravening a Family Violence Intervention Order;
(d)    1 count of make threat to kill, threat to inflict serious injury, stalking another person;
(e)    1 count of using a carriage service to menace;
(f)     2 counts of using a telecommunications service to harass;
(g)    driving under the influence of intoxicating liquor;
(h)    failing to give name and address following an accident when property was damaged;
(i)     unlicensed driving; and
(j)     careless driving.
The father was sentenced to an 18 month term of imprisonment and was placed on the Sex Offenders Register. The father was released from prison for these offences on 10 March 2012 with the time he had already served in custody being taken into account.

History Of The Proceedings

These proceedings were commenced by the father by way of an initiating application filed 28 September 2012 in the Federal Magistrates Court, as it then was, at Dandenong. In that application the father sought orders, inter alia, as follows:
(1)    that the parties have shared parental responsibility for the children;
(2)    that the children live with the mother;
(3)    that the father spend supervised time with the children through L Care, Suburb I;
(4) ‘Pursuant to section 67N(2) of the Family Law Act 1975 the Business Manager of Centrelink do furnish forthwith to the Registrar of the Federal Magistrates Court of Australia at Dandenong such information as is contained in the records of the said agency in relation to the address at which the said children and the Mother may be found’; and
(5)    ‘Any information received by the Registrar in compliance with paragraph 4 above not be released without an Order of the Court first had and obtained (sic), and such information not be provided to any person other than a process server pending further order of the Court[.]’
On 28 September 2012 the father filed two affidavits in support of his application which were sworn or affirmed by him on 5 July 2012 and 28 September 2012 respectively. The father also filed a notice of risk of child abuse or risk of family violence.
On 31 October 2012 the mother’s solicitors filed a notice of address for service on her behalf.
On 5 November 2012 Federal Magistrate Curtain, as he then was, made orders transferring the proceeding to this Court with a recommendation that the matter be included in the Magellan List.
On 23 November 2012 the mother filed a response to initiating application in which she sought the following orders:
(1)that the mother have sole parental responsibility for the children;
(2)that the children live with the mother;
(3)that the children spend no time with nor have any communication with the father;
(4)that the mother be permitted to change the children’s surnames; and
(5)that pursuant to Rule 10.12 of the Family Law Rules 2004 (Cth) the father’s application be summarily dismissed.
On 22 November 2012 Registrar Field made orders, inter alia, for the appointment of an Independent Children’s Lawyer and a notation as follows:
AND THE COURT NOTES
Information has been provided to the Court by the Department of Human Services by letter dated the 13 October 2012 indicating that they have information that is relevant to the Court and that they do not support the application by the [f]ather that he spend time with the children. The [father] has confirmed this day that notwithstanding this, he intends to pursue his application.
On 5 April 2013 the matter was listed for hearing before Senior Registrar FitzGibbon. On that date the Senior Registrar made a final order by consent that the children live with the mother and otherwise made interim orders, inter alia, placing the matter into the pool of cases awaiting hearing with liberty to the parties to apply to determine whether or not the final hearing, including the mother’s application for summary dismissal, should be expedited.
On 22 July 2013 the father’s then solicitors filed a notice of ceasing to act.
On 17 December 2013 I made orders in Chambers listing the matter to a first day of hearing before me on 3 March 2014 and, in anticipation of that hearing, ordered, inter alia, as follows:
(1)that the parties and if represented, their legal practitioners, attend the first day of hearing;
(2)that notwithstanding applications/responses that have already been filed:
a)by 4.00 pm on 3 February 2014 the father file and serve on all other parties an amended application setting out with precision the orders to be sought at trial; and
b)by 4.00 pm on 17 February 2014 the mother file and serve on all other parties an amended response setting out with precision the orders to be sought at trial.
My orders also included a notation that in the event that a party does not comply with the orders for the filing of an amended response or application then the other party who has so complied may make an application to proceed on an undefended basis on the return date.
Although the father did not file an amended application and did not appear at the first day of hearing before me on 3 March 2014 he was represented at the hearing that day. However, Mr G who appeared on his behalf that day advised the Court that although he was acting on the father’s behalf in relation to some outstanding criminal proceedings, he was not certain that he would receive formal instructions from the father to act on his behalf in relation to the proceedings in this Court.
It was on that basis that I made orders listing the matter for mention before me at 9.00 am on 4 April 2014 and requiring the father to file and serve an amended application setting out with precision the orders he sought and the affidavits of evidence in chief of all witnesses relied upon by 4.00 pm on 28 March 2014. I also gave leave to the mother and/or the Independent Children’s Lawyer to file an application seeking that the matter proceed on an undefended basis in the event that the father did not comply with those orders.
The father failed to comply with the order for the filing of material by 28 March 2014 and on 2 April 2014 the mother filed an application in a case in which she sought, inter alia, to be at liberty to proceed on an undefended basis to obtain final orders consistent with the final orders she had sought in her amended response to initiating application filed 3 March 2014.
On 4 April 2014, there being no appearance by or on behalf of the father, I made orders that all extant applications for final orders and the mother’s application in a case seeking to proceed undefended be set down for final hearing before me at 10.00 am on 7 May 2014. I made a further order that the mother, as soon as practicable, serve upon the father:
(a)the application in case filed 2 April 2014;
(b)her affidavit filed 2 April 2014;
(c)a sealed copy of the order made this day; and
(d)the subpoena directed to Victoria Police to produce documents issued 21 March 2014;
by ordinary pre-paid post addressed to him as follows:
(a)c/- G Lawyers;
(b)H Street, Suburb I VIC 3199; and
(c)J Street, Suburb K VIC 3977.
The father had disclosed two different addresses and, to avoid any uncertainty as to service of the documents upon him, the order required service upon him at both addresses and upon G Lawyers who had acted on his behalf early in these proceedings when they were in the Federal Circuit Court and acted for the father now in relation to his forthcoming criminal proceedings.
The mother relied upon an affidavit of service filed 8 April 2014 and I am satisfied that service of the documents was effected in accordance with my orders made 4 April 2014.
At the final hearing before me on 7 May 2014, the father was called but was not legally represented and did not appear.

DOCUMENTS RELIED UPON

The mother relied upon the following documents:
(a)her amended response to initiating application filed 3 March 2014;
(b)her trial affidavit filed 3 March 2014;
(c)Form 4 Notice of Child Abuse or Family Violence or Risk of Family Violence filed 3 March 2014;
(d)her application in a case filed 2 April 2014;
(e)her affidavit filed 2 April 2014;
(f)affidavit of service filed 8 April 2014; and
(g)outline of case and argument of the respondent mother filed 25 February 2014;
The Independent Children’s Lawyer filed a summary of argument on 25 February 2014 ahead of the first day of hearing and counsel for the Independent Children’s Lawyer made oral submissions on behalf of the Independent Children’s Lawyer’s position at the final hearing on 7 May 2014.
Both Counsel for the mother and the Independent Children’s Lawyer referred me to and relied upon various documents produced pursuant to subpoena, to which I will refer later in these reasons.
Notwithstanding that the father has not participated in these proceedings and that I propose to dismiss his application, I have read the two affidavits filed by him when the proceedings commenced in the Federal Circuit Court, or the Federal Magistrates Court as it then was, on 28 September 2012 in support of his application to spend supervised time with the children.

Mother’s Application To Proceed On An Undefended Basis

Rule 11.02 of the Family Law Rules 2004 (‘the Rules’) provides that:
(1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).
(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
Note: This list does not limit the powers of the court. It is an expectation that a non defaulting party will minimise any loss...
The Explanatory Guide to the Rules, which does not form part of the Rules, describes the term “undefended basis” as follows:
... the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make orders set out in the application on being satisfied by evidence that orders should be made.
In Tate JRD v Tate MT (2000) FLC 93-047 (‘Tate’) the Full Court upheld the decision of the trial judge in striking out the husband’s response and refusing him the right to cross-examine the wife based upon what she described as a “continual delay; most of it due to the non-compliance of the husband”. The Full Court said as follows:
99.In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra) (original italics). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence …
107.The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
108.Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that a manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
The father, who was the applicant in these proceedings, has not filed any material since he initiated the proceedings in September 2012 notwithstanding the numerous orders requiring him to do so and he did not participate in the hearing before me. I am satisfied that the father has been given every opportunity to participate in the proceedings and has chosen not to do so. These are parenting proceedings and in my view, and as submitted by the Independent Children’s lawyer on behalf of the children, the proceedings having been on foot since September 2012, the children’s welfare requires that the proceedings be finally determined with or without the father’s participation.
It is on that basis that I acceded to the mother’s application to proceed on an undefended basis. Although the mother sought orders striking out the father’s application in all of the circumstances of this case I am satisfied that I should dismiss the father’s application.

Legal Principles

The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) relating to children are set out in s 60B(1) of the Act as follows:
The objects of this Part 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 those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:
(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).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. In cases where there is inconsistency between the primary considerations under s 60CC(2), the Court is required pursuant to s 60CC(2A) to give greater weight to the considerations set out in sub-paragraph 2(b) than to those in sub-paragraph 2(a).
The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests. This was clearly stated by the High Court in M & M (1988) 166 CLR 69 (‘M & M’) per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at [76] as follows:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance of probabilities.

THE STANDARD OF PROOF

The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the court may take into account in deciding whether it is satisfied that a party has proven his or her case, the court must take into account:
(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.
The mother gave oral evidence by leave with respect to some of the matters contained in the Department of Human Services (‘DHS’) report dated 15 April 2014. The mother gave her evidence in a forthright manner and the explanations she gave were both reasonable and, in my view, credible. She was a good witness and I accept her evidence. Her evidence was not the subject of any challenge by counsel for the Independent Children’s Lawyer. The evidence contained in the mother’s affidavits is similarly unchallenged and I accept that evidence.

The Parties’ Proposals

The mother’s proposals

At the commencement of the hearing the mother’s proposal, as set out in her proposed minute of orders, was as follows:
1.    That all previous parenting Orders be discharged.
2.    That the [m]other have sole parenting responsibility in relation to the children [B] born … 1997, [C] born … 1997, [D] born … 2002, [E] born … 2005 and [F] born … 2007 (“the children”).
3.    That the children live with the [m]other.
4.    The [f]ather is hereby restrained from spending any time with the children and from having any communication with the children.
5.    For the personal protection of the mother and the children, and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth), unless specifically permitted by a Court Order, the father … is prohibited and restrained from:
a.Harassing, molesting or stalking the mother … and the children;
b.Causing or threatening to cause bodily harm to the mother and/or the children;
c.Approaching the mother and/or the children or their place of residence, school or employment from time to time or coming within 100 metres of those places;
d.Attempting to locate, contact or approach the children or attending the children’s school or any of the children’s extra-curricular activities from time to time;
e.Living or coming within a 15 kilometre radius of the commencement of the [Region M].
6.    Pursuant to s 68C and s 114AA of the Family Law Act 1975 (Cth), there being in force an injunction under s 68B and s 114 of the Family Law Act 1975 (Cth), where a police officer (Federal or State) believes, on reasonable grounds, that the father … has since the injunction was granted, breached the injunction by:
a.Causing or threatening to cause bodily harm to the person or persons referred to in order 5; or
b.Harassing, molesting or stalking any one or other of those persons,
the police officer may arrest [the father] without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.
7.    That the [m]other be permitted to enrol the children in any school under a name different to that on their birth certificates.
8.    The [father] must not without the leave of Justice Macmillan or if not available another Judge of the Melbourne Registry of the Family Court, having jurisdiction under the Family Law Act 1975 [(Cth)] commence any proceedings seeking orders pursuant to part 7 (sic) of the Family Law Act 1975 [(Cth)] in any Court, either State or Federal, in respect of the children …
9. Any application the [f]ather files in which he seeks to (sic) leave to commence any proceedings pursuant to part 7 (sic) of the Family Law Act 1975 [(Cth)] shall not be served on the [m]other but must be served on the [m]other’s solicitors, Bayside Solicitors, on any future occasion.
10.   The appointment of the Independent Children’s Lawyer in these proceedings shall be discharged.
11. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 [(Cth)] the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
12.   That the [mother] be permitted to change the last names of the children.
13. That pursuant to Rule 10.12 of the Family Law Rules, the [father’s] [a]pplication to spend time and communicate with the children be summarily dismissed.
14.   [Order in similar terms to paragraph 10 hereof]
15.   Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (sic), the Court certifies that it was reasonable for the parties to employ an advocate.
16.   [Order in similar terms to paragraph 11 hereof]
NOTATION
AND THE COURT NOTES:
A.     That the [father] was called at the commencement of the trial and made no appearance.
B.     That the solicitors for the [mother] and in particular the secretary to the solicitor having conduct of the [m]other’s case has filed an Affidavit of Service on 8 April 2014 indicating that the Orders made by this Honourable Court on 4 April 2014 were served on the [father] in compliance with that Order.
During the case the orders sought by the mother were further refined and she did not persist with paragraphs 5 or 6 of her minute of orders. Counsel for the mother also acknowledged that it was not necessary to discharge all previous parenting orders or to make orders that the children live with the mother in circumstances where orders had been made by consent by Senior Registrar FitzGibbon to that effect.
Although counsel for the mother confirmed that the mother was seeking orders in terms of paragraphs 8 and 9 of the minute, it was his submission that in the alternative there be a direction that any further applications be listed before me, if practicable.

The Independent Children’s Lawyer’s proposals

Counsel who appeared on behalf of the Independent Children’s Lawyer submitted that the Independent Children’s Lawyer supported the orders sought by the mother, albeit with some qualifications.
Although counsel for the Independent Children’s Lawyer proposed that there should be no order with respect to the father spending time with the children, he did not oppose the order sought by the mother in the affirmative that the father not spend any time with nor communicate with the children.
The Independent Children’s Lawyer opposed the orders sought by the mother restraining the father from instituting further proceedings on the basis that the father in this case could not be considered a vexatious litigant as he has filed only the one application which he has not prosecuted. Although counsel submitted that there should be no requirement that the father be required to seek leave to commence further proceedings, he did not oppose the mother’s alternative proposal that there be a direction that any further applications be listed, if practicable, before me.
Counsel for the Independent Children’s Lawyer submitted, and I agree, that there is a practical difficulty with the order proposed by the mother in relation to the father serving any further applications upon the mother’s solicitors.

Section 60CC Considerations

I will first consider the primary considerations under s 60CC(2).
There is, in many cases, a tension between the benefit to a child of having a meaningful relationship with each of his or her parents (s 60CC(2)(a)) and the need to protect that child from physical or psychological harm (s 60CC(2)(b)). Section 60CC(2A), which addresses that tension between the two provisions, provides that the Court is to give greater weight to the consideration set out in sub-paragraph (2)(b) in the case of inconsistency between the two considerations.
In my view, this is a case in which the need to protect the children significantly outweighs any benefit to the children of them having a meaningful relationship with the father.
Although the Act does not otherwise prescribe any order in which the primary and additional consideration should be considered, given the history of this matter I will turn first to the need to protect the children pursuant to sub-paragraph 2(b).
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In her trial affidavit filed 3 March 2014 the mother alleges that ‘[t]he father has over a number of years engaged in the physical, sexual and emotional abuse of the mother and the children’.
The mother’s evidence is not only unchallenged by the father but there is also significant evidence which independently substantiates the allegations she makes, not the least of which is evidence of the father’s conviction and imprisonment for the serious offences, including sexual offences, and that he is a registered sex offender as previously described in these reasons. The offences in relation to a child under 16 were in relation to the child of the marriage C.
Significantly, given the father’s explanation for the offences for which he was convicted on 10 March 2011, as at 1 April 2014 the father also had the following pending charges:
(a)    1 count of stalking another person;
(b)    9 counts of failing to comply with reporting obligations under the Sex Offenders Register; and
(a)    1 count of unlicensed driving.
On 15 April 2014 DHS provided information to the court in response to the Form 4 Notice of Child Abuse or Family Violence or Risk of Family Violence filed by the mother on 3 March 2014.
The DHS report included, inter alia, the following in relation to the children in this matter:
23/05/2008 – 11/08/2008
A report was received due to concerns of family violence. Concerns were raised that there had been verbal abuse between the parents and that [the father] had accidentally struck the one year old child on the forehead with an empty beer bottle.
A decision was made for the matter to proceed to Initial Investigation given the parents’ minimising the concerns raised and previous concerns that had been raised for the children.
The matter was investigated and during this time [the mother] refused to allow the children to be interviewed. It was ascertained during this involvement that [the mother] was able to access support services if she required in the future. It was assessed that there was no further role for Child Protection and the matter closed in the Protective Intervention Phase on 11/08/2008 …
…
12/07/2010 – 18/10/2010
A report was received due to concerns that [C] had been sexually abused by [the father]. Concerns were raised that this had been occurring over the last 12 months. Given the concerns, the matter proceeded to Initial Investigation.
[C] made full disclosure of the sexual abuse. [The mother] said that she was not aware that the abuse was occurring [and] that when she found out she acted protectively.
[The mother] was assessed as capable of adequately protecting the children from further risk of sexual abuse by [the father]. [The mother] was being supported by the maternal aunt and was working with Child First (Family Information Referral Support Team) services to address the issues raised in regard to [B], who was still in an out of home placement at the time of the reported concerns. There were no significant concerns for the children whilst in [the mother’s] care. The matter closed at the Investigation and Assessment Phase of Child Protection on the 18/10/2010 with the exception of [B] …
…
21/02/2012 – 26/06/2012
A report was received due to concerns that [the father] was due to be released from Prison and had indicated his intention to contact the children upon his release. It was reported that in June 2011 [the father] was refused parole due to written threats to kill [the mother]. Given this information, the matter proceeded to the Investigation and Assessment Team of Child Protection.
It was ascertained that there was a full Intervention Order in place protecting the children, until 31^st of December 2019.
An interview was conducted with [the father] and it was assessed that he showed no insight into the impact of his offences nor did he accept any responsibility for his actions.
Contact was made with [the mother] and the children. It was assessed that [the mother] was very fearful for her own safety and the children’s safety if [the father] was to have any contact.
It was assessed that [the mother] was willing and able to act protectively and that there was no further role for Child Protection. The matter closed at the Investigation and Assessment phase of Child Protection on 26/06/2012 …
26/07/2012 – 26/07/2012
A report was received due to concerns that [the father] was actively trying to locate the family by contacting family and friends of [the mother’s] via telephone and Face book (sic), and also contacting the children’s school.
Contact was made with [the mother] and she was made aware that she could change the Intervention Order that had been taken out against [the father], to prohibit [the father] from making contact with the school. [The mother] continued to act protectively and it was assessed that there was no ongoing role for Child Protection at this time. The matter was closed at the Intake and Assessment Phase of Child Protection on 26/07/2012.
The report provided by DHS in response to the Form 4 Notice of Child Abuse is consistent with the mother’s evidence and, for that matter, the evidence contained in the father’s affidavits and, in particular, his evidence contained in his affidavit sworn/affirmed 5 July 2012 where the father deposes as follows:
The offences I was imprisoned for were telecommunication device to menace, breaching intervention order and indecent act with [C]. I was drunk and medicated when it happened. I have never done this before.
I was having a mental breakdown at the time because my relationship with the children’s mother was breaking and the stresses of caring for 6 children.
Although in his affidavit sworn/affirmed 28 September 2012 the father deposes that he was imprisoned for “indecent acts” in relation to the child C rather than an “indecent act”, he also repeated that he had never done it before and that he was drunk and medicated when it happened.
Although the father suggests that he was drunk and medicated at the time of the offences and had never committed such acts with C before, the father has entered a guilty plea to three counts of committing an indecent act with a child under 16 and two counts of attempting to procure a child under 16 for sexual penetration. These are serious offences and the mother deposes that C still has nightmares and issues surrounding that sexual abuse.
The mother’s case is that not only should the Court dismiss the father’s application but that it should make orders in the affirmative that the father not spend any time with nor communicate with the children.
I am satisfied that it would expose the children to an unacceptable risk of physical and psychological harm to have any face-to-face or other interaction with the father. The risk to the children includes what I am satisfied is the unacceptable risk of sexual abuse, and I note that in its letter to the court dated 31 October 2012 DHS reported that the father had ‘scored on the Static 99 actuarial tool as being Moderate-High Risk Category for being charged or convicted of another sexual offence and he has not completed treatment through the Sex Offenders Program.’
Although the father deposes that he had seen a psychologist for nine months at the Melbourne Remand Centre, on the father’s own evidence this was ‘for depression’. There is no evidence that the father has addressed or sought treatment in relation to his sexual offending. Further, the pending charges in relation to the father’s alleged failure to comply with his reporting obligations under the Sexual Offenders Register does not give me any confidence that he is well motivated to address the issue of his sexual offending.
I also accept the mother’s unchallenged evidence that the father has over a number of years also engaged in physical and emotional abuse of herself and the children and that the ‘trauma caused to the children has had a significant impact on the children’s development and emotional stability requiring counselling.’ The mother deposes to the child B having to deal ‘with a lot of issues of verbal abuse and physical abuse directed to him by his father.’ In this case, not only was it necessary for the mother to obtain a family violence intervention order to protect her and the children but the father has convictions for breaching that order.

The letter from DHS to the court dated 15 April 2014 also referred to a number of reports raising concerns in relation to the mother. Mindful of the Court’s obligation to consider any risk to the children, the mother was given leave to give oral evidence in relation to the matters contained in that letter from DHS.
The first of the matters raised by DHS referred to a period between 26 January 2006 and 3 February 2006. DHS said that it had received a report raising concerns for the children in the mother’s care due to concerns for her mental health. The mother’s evidence in relation to this incident was that it was a hot day and that she was sunbaking on the front lawn in her bikini and that the father called the CAT team as he did not think it was appropriate. The mother said that the issues she was experiencing were “marital difficulties” rather than mental health issues. This is consistent with the report from DHS that any concerns with respect to the mother’s mental health were ‘situational’.
The second matter referred to by DHS was in relation to the period between 23 November 2007 and 7 February 2008. DHS said that a report was received due to concerns that two of the children had been found wandering on their own. When police attended at the family home they reported finding the father alcohol affected and unaware that the children had been missing. Given that he was alcohol affected and an assessment had not been undertaken of the mother, the matter was transferred for Initial Investigation. Assessments were completed in relation to both the father and the mother’s ability to care for the children and services were put in place to assist the family and the matter was closed with support services in place. The mother’s evidence in relation to this was that she had been working part-time and had left the father in charge of the children and that when she was contacted by the police she immediately left work and ran half-way home before the police drove her home and it was agreed that she not return to work that evening. She agreed that the father was alcohol affected.
The next matter to which DHS referred was in relation to the period from 25 February 2008 to 5 March 2008. DHS said that a report had been received due to concerns the children were presenting as unkempt and were not being fed adequate amounts. DHS reported further that appropriate follow-up was conducted and it was assessed that there was no role for Child Protection. The mother had no recollection of this matter.
The mother’s evidence in relation to the matters referred to by DHS for the period of 23 May 2008 to 11 August 2008 was that the father had accidentally struck one of the children on the forehead with an empty beer bottle during an argument about his drinking. The mother said the father threw a beer bottle at her and because she could not get out of the way fast enough it struck the youngest child who was in her arms at the time.
Finally, the mother gave evidence in relation to the report received by DHS for the period 24 February 2010 to 19 February 2011 that she had assaulted the child B. It was reported to DHS that the mother had punched B in his face, kicked him in the stomach, and that he had swollen eyes and a bloodied nose. It was as a result of this incident that B was placed in out-of-home care. The mother’s evidence in relation to this incident was that B, then almost twelve years old, had unbeknownst to her witnessed the father sexually abusing C, as a result of which his behaviour deteriorated and he was using bad language and had become involved with drugs. The mother said that when she told him he was grounded he swore “rather horribly” at her, as a result of which she slapped his face and her wedding ring scratched the left side of his nose. The mother said that she reported the matter to the police who then reported it to DHS. The mother denied kicking B. DHS reported following up the matter with the other children and that no concerns were noted for them in the care of the father and the mother. It was deemed that there was no further role for Child Protection in relation to the other children and the matter was closed on 31 March 2010. Child protection however remained involved with B and he remained living out-of-home.
The mother’s evidence is that although B lives independently at the home of his girlfriend’s mother, she sees him almost every day and that they have a good relationship.
I am satisfied that the mother does not present any risk to the children. This is consistent with the most recent assessment by DHS that the mother has ‘continued to act protectively’.
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Whilst in general terms one might expect children to benefit from a meaningful relationship with either or both of their parents, that unfortunately is not always the case.
Brown J in Mazorski & Albright [2007] FamCA 520 said in relation to what is meant by a “meaningful relationship” at [26] as follows:
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 quantitative one.
Bennett J in G & C [2006] FamCA 994 observed that the enquiry was a prospective one. It is now mandated that the Court, in having regard to the primary considerations in s 60CC(2) of the Act, should place greater weight upon the need to protect children from abuse, neglect or family violence.
The tension between the children having a meaningful relationship with the father and the potential for the exposure of the children to abuse by the father in this case is stark. There is no evidence before me that would lead me to conclude that the children would benefit from having a relationship with the father or, for that matter, that any such a relationship could in all of the circumstance of this case be meaningful, even if orders could be fashioned that would protect them from the risk of abuse.
I turn now to consider the additional considerations.
(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 mother deposes that the father was both physically and verbally abusive to her throughout their relationship. She also deposes that over a number of years the father engaged in physical, sexual and emotional abuse of both her and the children and that the trauma caused to the children has had ‘a significant impact on the children’s development and emotional stability requiring counselling.’ The mother described C in particular as still having nightmares and issues surrounding the abuse. The mother describes the children as being ‘terrified of [the father] and wanting nothing to do with him.’ Given the circumstances of this case, that would not be surprising. I accept the mother’s evidence.
(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);
(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 father has not had any contact with the children since August 2010.
All of the children, except for B, live with the mother and she deposes that she has been their primary carer since birth. The mother deposes that the children also spend time with her extended family.
Any order made that the children not spend time nor communicate with the father would in this case simply confirm the circumstances that have already existed for these children since August 2010.
(c) the extent to which each of the child’s parents 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;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain 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);
to provide for the needs of the child, including emotional and intellectual needs;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In circumstances where the father has not spent time with the children since August 2010, and where for 18 months of that time he was in prison for the offences to which I have previously referred, it was not and is not practical or for that matter in the children’s best interests for the father to participate in decision-making with respect to the children or for him to spend time or communicate with them.
The children have been in the mother’s sole care since August 2010 and she has been responsible for the day-to-day and long-term decisions required for their care since that time. The mother describes the children as being well settled in her care. The mother deposes that she ensures all of the school-aged children attend school appropriately. I accept her evidence. The father does not pay any child support for the children.
Whilst the mother, as reported by DHS, has demonstrated the capacity to provide for the children most notably by acting protectively in response to the risk posed by the father, the father on the other hand has not demonstrated a responsible attitude to parenting or the capacity to prioritise the children’s welfare.
Although the father did plead guilty to the sexual abuse of C, in both of his affidavits filed 28 September 2012 he minimises the seriousness of these offences. Following an interview with the father in early 2012 DHS reported that ‘he showed no insight into the impact of his offences nor did he accept responsibility for his actions.’
The father was also reported by DHS in its letter to the court dated 15 April 2014 to be ‘actively trying to locate’ the mother and the children ‘by contacting family and friends of [the mother’s] via telephone and [Facebook], and also contacting the children’s school.’ This behaviour demonstrates the father’s lack of insight into the possible negative impact of his actions upon both the mother, who is primarily responsible for the children’s care, and the children themselves and in particular C, in circumstances where the mother says that they are all fearful for their safety.
Although the father deposes in his affidavit sworn/affirmed 5 July 2012 that he has completed ‘Drug and Alcohol courses at Melbourne Remand Centre and Ararat Jail’, it was reported by DHS in the letter addressed to the court dated 31 October 2012 that ‘the father has been scored on the Static 99 actuarial tool as being Moderate-High Risk Category for being charged or convicted of another sexual offence and he has not completed treatment through the Sex Offender Program.’ The father in both of his affidavits neither acknowledges the seriousness of the offences for which he was convicted nor does he depose to any steps he has taken in any real sense to address those issues.
The father’s conduct and in particular his sexual abuse of C is a fundamental breach of his responsibilities as a parent.
(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;
It is neither the practical difficulty nor the expense which is the issue in this case in relation to the children’s relationship with the father.
(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;
The mother deposes that she raises the children, whose ages span a number of years, in accordance with their respective maturity and age. Although B, who is now 17 years of age, lives independently of the mother, I accept her evidence that she sees him frequently and that they have a good relationship.
(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 is not a relevant consideration in this case.
(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 already referred earlier in these reasons to the significant history of family violence committed by the father in this case and his sexual abuse of the child C for which he was imprisoned.
As already mentioned, on 28 January 2011 the mother with the assistance of the police obtained an intervention order against the father at the Magistrates Court at Suburb O. The order remains in force until further order and names all of the children the subject of these proceedings and includes the mother’s now adult child of a previous relationship.
(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;
(m) any other fact or circumstance that the court thinks is relevant.
It would in this case, as in most cases, be preferable to make the order or orders that will least likely lead to the institution of proceedings in relation to these children.
It is on that basis that it was ultimately submitted by both counsel for the mother and the Independent Children’s Lawyer that rather than simply reserving the question of whether the children should spend time or communicate with the father that I should make orders in the affirmative that they not spend any time nor communicate with him.

Parental Responsibility

Parental responsibility is defined in s 61B the Act as all of ‘the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’
There is a statutory presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or children or family violence (s 61DA). The presumption may be rebutted where the Court is satisfied that it is not in the child or children’s best interests for the child or children’s parents to have equal shared parental responsibility.
When the presumption does apply and the Court proposes to make an order for equal shared parental responsibility, it must also consider firstly whether it is in the child or children’s best interests and reasonably practicable to spend equal time with the parents (s 65DAA(1)) and if not, whether it is in the best interests of the child or children and reasonably practicable to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
In this case, I am satisfied that there a reasonable grounds to believe that the father has engaged in both abuse of the children, in particular the sexual abuse of C, and family violence involving the mother and the children. In these circumstances the presumption of equal shared responsibility is rebutted and it is not necessary to consider whether it is in the children’s best interests to spend either equal or substantial and significant time with the father.
There are currently no orders in relation to parental responsibility in relation to the children and the mother has in default been exercising sole parental responsibility since separation.
Although it is a serious matter to make orders which exclude a parent from being involved in making decisions with respect to his or her children, I am satisfied that it is in the children’s best interests having regard to the objects and principles of the Act and the s 60CC considerations to which I have already referred that the mother have sole parental responsibility for the children. It is not necessary to repeat those matters to which I have already referred. I am ultimately satisfied having regard to all of the circumstances in this case that it is neither practicable nor in the children’s best interests for the mother to have to communicate with the father for the purposes of making decisions with respect to the children.
Although B does not live with the mother he is still under 18 years of age and I am satisfied that it is appropriate that the mother also have sole parental responsibility for B until he turns 18.

Conclusion

I am satisfied that that it is appropriate to make the orders sought by the mother including the order that the father not spend time or communicate with the children.
Although I cannot, of course, guarantee that the father will not make a further application to spend time with the children it is to be hoped that the orders the mother seeks and which are supported by the Independent Children’s Lawyer will provide some certainty and a sense of security for both the mother and the children, particularly in light of the father’s attempts to locate and contact the children. This includes the orders sought by the mother permitting her to change the children’s names without the consent of the father and to enrol the children in any school under a name different to that on their birth certificates. Although as the mother is to have sole parental responsibility these orders may, strictly speaking, not be necessary, it has been urged upon me by counsel for the mother that I should nonetheless make the orders the mother seeks in order to facilitate the process. I am in those circumstances prepared to do so.
I am however not satisfied that there is any basis for making the orders sought by the mother requiring the father to seek leave to commence proceedings in circumstances where he has made only the one application, nor do I consider it necessary that any future application be listed before me. My reasons will be on the court file and available to any judicial officer who is required to deal with any further applications.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 15 August 2014.

Associate:

Date: 14 August 2014

[2014] FamCA 658

15 August 2014

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Family Law

Legal Concepts

Appeal

Consent

Jurisdiction

Natural Justice

Procedural Fairness

Remedies