Palma and Murphey and Anor

[2016] FamCA 247

FAMILY COURT OF AUSTRALIA

PALMA & MURPHEY AND ANOR [2016] FamCA 247

FAMILY LAW – CHILDREN – With whom the child spends time – Parental responsibility – Best interest of the child – Where the mother has disengaged from the proceedings and heard on an undefended basis – No finding of unacceptable risk of harm in the father’s care – Finding of unacceptable risk of harm in the mother’s care– Where the mother has not spent time with child since mid-2013 and here whereabouts are unknown – Benefit of a meaningful relationship mother – Need to protect the child from risk of harm – Nature of the child’s relationships – Parental capacity – Attitude to the child and responsibilities of parenthood.

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

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Palma

FIRST RESPONDENT:	Ms Murphey
SECOND RESPONDENT	Ms A Murphey

INDEPENDENT CHILDREN’S LAWYER: Ms Shedden as agent for Mr Tiyce

FILE NUMBER: PAC 2868 of 2012

DATE DELIVERED: 18 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 November 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

SOLICITOR FOR THE FIRST RESPONDENT: No appearance

SOLICITOR FOR THE SECOND RESPONDENT: Brydens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce Partners Lawyers

Orders

1. The father shall have sole parental responsibility for the child B born … 2010 (“the child”).

2. The child shall live with the father.

3. The mother shall not spend time with, nor attempt to spend time with, nor communicate with, nor attempt to communicate with the child.

4. Pursuant to section 68B of the Family Law Act 1975 (Cth) the mother, Ms Murphey, shall be and is hereby restrained from contacting or approaching to contact or approach the child the child by any means whatsoever including through any third party and further, Ms Murphey is restrained from:

   (a)Attending at or being within 100 metres of the place of residence of the child;

   (b)Attending at or being within 100 metres of the place of employment of the child;

   (c)Attending at or being within 100 metres of any pre-school, school or educational institutional attended at or by the child.

5. Order 4 is an order for personal protection to which a power of arrest without warrant attaches pursuant to the provisions of section 68C of the Family Law Act 1975 (Cth).

6. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the father shall be authorised and entitled to remove the child the child from the Commonwealth of Australia for the purpose of travel at his discretion.

7. Pursuant to Section 65Y of the Family Law Act 1975 (Cth) the mother shall not be authorised and shall not be entitled to remove the child the child from the Commonwealth of Australia for the purpose of travel at her discretion.

8. B born … 2010 is permitted to have an Australian travel document and to travel internationally.

9. The father may apply for an Australian travel document (passport) for B born … 2010 without first obtaining the consent of the mother.

10. All previous orders with respect to the child, with the exception of the orders made on 24 November 2015, are hereby discharged.

11. All other applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Palma & Murphey 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 2868  of 2012

Mr Palma

Applicant

And

Ms Murphey

First Respondent

And

Ms A Murphey
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. B is a little girl of five whose parents separated when she was two years old. They had been in a relationship together for five years.

2. When the parents separated the father took the child with him to live at the paternal grandparent’s home.

3. The father commenced proceedings shortly after separation and although orders were made for the mother to spend time with the child at a children’s contact service this has not occurred. The mother initially engaged in the proceedings and filed an affidavit in 2012.  She filed a further affidavit in 2013.

4. The maternal grandmother was joined to the proceedings in April 2014.  She and the father were able to reach agreement about arrangements for the child to spend time with her on an interim and final basis.

5. Since the release of a Family Report in November 2014 the mother has disengaged from the proceedings.

6. The matter was dealt with on an undefended basis on 24 November 2015 and on that date final orders were made with respect to the child’s time with the maternal grandmother.

7. The father is seeking orders that he be allocated sole parental responsibility for the child and that the child live with him and spend no time with her mother. He also seeks various restraints including restraining the mother from contacting or approaching or attempting to contact or approach the child. The sole issue for me to determine is whether such orders are in the best interests of the child.  This judgment also includes my reasons with respect to the orders for time with the maternal grandmother.

Background

1. The father, who is 47, was born and raised in South America. In July 1999, the father was sentenced with respect to a charge of sexual assault and assault occasioning actual bodily harm. The offences were committed in September 1990 when the father was 22.  He was arrested on the date of his offences but absconded to South America where he remained for eight years.

2. The mother who is 37 has two sons from a previous relationship who are now 19 and 14 years of age. As I understand it, these boys now live with their father.

3. The parents met in 2007, and started a relationship in November of that year and began living together in 2008 or 2009. Although it is not entirely clear, it appears that the mother’s two sons lived with the parents on at least a part-time basis.

4. B, the parents’ only child was born in 2010. Both parents were involved in the care of the child, though the mother played a greater role as the father was employed outside the home. The father alleges that the mother’s parenting capacity was impaired by her drug use and that she neglected and did not properly supervise her three children. According to the father the mother has had a long-standing substance misuse problem and has regularly used methamphetamine since suffering from postnatal depression following the child’s birth. The father also alleges that the mother was involved in selling drugs.

5. The father took the child into his care when the parents separated in July 2012. The father immediately commenced parenting proceedings in the Federal Magistrates Court, as it then was. When the parents were seen by a family consultant for a child dispute conference in July 2012 the father proposed that the child spend supervised time with her mother and that supervision was necessary because of the mother’s drug use. He also raised verbal conflict, to which the child was exposed as an issue in the parents’ relationship. The mother alleged that the father had been physically violent to her during the relationship and that police had attended at their home numerous times and asked her if she wished to apply for an Apprehended Violence Order (AVO) but she declined. The mother also alleged that the father misused cannabis and alcohol.

6. Pursuant to interim parenting orders made on an 11 July 2012 the child was to live with her father and spend time with her mother each Saturday and Sunday, supervised by a maternal uncle. According to the father he experienced some difficulty with these arrangements and the mother was often verbally abusive at changeover. Orders were also made that both parents be subject to hair follicle testing in relation to possible drug use. The matter was transferred to this Court in late July 2012.

7. The father underwent drug testing on one occasion in December 2012, which indicated no drug use. The mother did not attend hair follicle testing and I understand that she has refused to do so. The mother filed an affidavit in June 2013, indicating that she had used illicit substances and also indicated an intention to commence rehabilitation.

8. The mother’s time with the child was subsequently supervised by the maternal grandmother. This occurred until June 2013 when the mother became uncontactable and her whereabouts unknown. Subsequently the child’s time with her mother was to be supervised by a children’s contact service but the mother failed to engage with the service. So far as I understand it, the child has not seen her mother since at least June 2013.

9. The father has not had any contact with the mother since a court appearance in April 2014. At this time the maternal grandmother was joined as a party to the proceedings. The maternal grandmother subsequently sought orders that the child spend time with her, commencing with a few hours each weekend and increasing to more extended alternate weekend time and overnight time once per month.

10. In September 2014, interviews were held with various members of the paternal family, the maternal grandmother and the child’s two brothers for the purposes of a Family Report. The mother did not respond to telephone calls, messages and a letter sent by the family consultant. She did not attend the interview and so the assessment was conducted without her involvement. The Family Report was released in November 2014.

11. After the Family Report was released and the matter was adjourned for a continuation of the less adversarial trial the mother did not appear and has since disengaged from the proceedings.

12. The father and the child have continued to live with other family members in a large family home. His parents and brothers assist in the care of the child when he is not available.

13. The father and maternal grandmother reached agreement concerning the child’s time with the grandmother.  The Independent Children’s Lawyer (“ICL”) also agreed that this arrangement was in the child’s best interests.  Consent orders to support the arrangements were made on 24 November 2015 and provided for the child to spend time with her maternal grandmother each alternate Saturday, for a 24 hour period once a month and for block periods up to four consecutive nights in school holidays.

The Family Report

1. The father and various other members of the paternal family were interviewed by a family consultant in September 2014 and observations were made of the child with members of that family and with the maternal grandmother and the child’s two half-brothers. The family consultant also had access to the various affidavits filed in the proceedings, Notices of Risk filed by each of the parents and documents produced on subpoena by various agencies including the Department of Family and Community Services (“Community Services”), Corrective Services NSW, a children’s contact centre and police.

2. The father told the family consultant that he would like the child to have a mother, and if she made contact with him he would agree to supervise time between them. He had not at that stage informed the child about her mother, other than to tell her that her mother has been “sick”. He told the family consultant that he did not oppose the child spending time with the maternal grandmother, which could begin with a couple of hours on alternate weekends and increase to once per month overnight time. He expressed some concerns about the maternal grandmother as he said she had previously been untruthful in saying that the mother was not living with her and had allowed the child unsupervised time with her mother, contrary to court orders. He also expressed concern that the maternal grandmother was an “alcoholic”, was not satisfied that the testing she had undergone in relation to alcohol consumption was sufficient and for this reason he wanted to supervise the initial visits between the maternal grandmother and the child.

3. Other members of the paternal family, such as the paternal grandparents and a paternal uncle who live in the same house as the father and the child outlined to the family consultant their involvement in the child’s care, including driving her to day care.

4. The maternal grandmother denied that the mother was ever alone with the child when she was having supervised time and told the family consultant that she had tried to approach the father about spending time with the child, but he was unresponsive. The maternal grandmother said at that time she had a good relationship with the father of the mother’s other two children and with him had made arrangements for these grandchildren to spend time with her on Saturday nights on alternate weekends. She said that time the mother’s other two children had recently had dinner with the mother, but otherwise no one in the family had any contact with the mother or knew her whereabouts. The maternal grandmother denied that she misused alcohol and said that the recent testing she had undergone indicated that the results were normal.

5. The family consultant observed the child with members of her family and reports warm and positive engagement between the various family members and the child. She describes the father as demonstrating “a positive and warm tone with the child” and that he “remained engaged in her games”. When observed with the maternal grandmother and half-brothers the child is described as appearing to be “relaxed and comfortable” with them.

6. As the mother did not attend the Family Report interviews, was not contactable and her whereabouts were unknown, no assessment was made of her parenting capacity, including her alleged drug use. It was noted that the mother has not had any contact with the child since June 2013 and that her children from her previous relationship no longer reside with her.

7. The family consultant gave consideration to the issue of whether there was an unacceptable risk of harm that may arise from the orders proposed by the father that the child live with him, in light of the mother’s allegations (made in her affidavit) regarding family violence and due to his criminal history for sexual assault.

8. Overall the family consultant’s recommendation was that if the Court finds that the father does not pose an unacceptable risk of harm to the child, given that he has no way to contact the mother and she has not sought to be involved in the child’s life since June 2013, the father be granted sole parental responsibility for the child. So far as proposals for the maternal grandmother to spend time with the child are concerned, the family consultant noted that it appeared that she and the father were generally in agreement that time occur on an increasing schedule. She also said that “[B] has relationships with two siblings that should be preserved and encouraged” and recommended that any time the child spend with the maternal grandmother also include these half-brothers where possible. The family consultant recommended that if the Court is satisfied that the maternal grandmother does not misuse alcohol and does not have the intention of facilitating time between the mother and the child, the child spend time with the maternal grandmother on an increasing schedule. She recommended that unless the Court holds concerns about the child’s safety, or the maternal grandmother’s intentions regarding her facilitating contact with the mother, it did not appear that this time needed to be supervised.

9. Finally, the family consultant recommended that the issue of the child’s knowledge and understanding of the mother and her whereabouts as she grew older, would be best addressed with the assistance of a professional such as a psychologist and that both the father and maternal grandmother should be involved in any future counselling provided to the child.

10. The family consultant also recommended that the child not spend any unsupervised time with her mother in the future unless the mother’s alleged drug use is assessed.

11. On the basis that the Family Report was not challenged under cross-examination I accept the opinions and recommendations of the family consultant and attach significant weight to them.

Does the father pose an unacceptable risk of harm to the child?

1. In her Notice of Risk the mother alleges that the child has been exposed to family violence perpetrated by the father upon her “throughout the duration of their de-facto relationship”.  She also alleges that the paternal grandmother and a paternal uncle assaulted her in the child’s presence. Although the mother does not refer to any risk to the child arising by virtue of the father’s conviction for sexual assault, risk associated with this offending must be also evaluated by the Court.

2. There is very little evidence available to assist the Court in relation to family violence said to have been perpetrated by the father.  As the mother has not participated in these proceedings since April 2014 and the hearing in November 2015 proceeded on an undefended basis, any affidavits filed by her have not been read.

3. However, a Magellan report was prepared in September 2012, as the matter at that stage was included in that program. The report indicates that five notifications have been made concerning risks of harm with respect to the child. These notifications commenced when the child was approximately six months old. All but one of these notifications concerned matters relating to the mother’s care of the child, including insufficient supervision and neglect due to the mother’s drug use, the mother’s aggressive behaviour and concerns about her mental health also associated with drug use, the physical environment in the household and an incident involving verbal abuse between the mother and her brother.  There is also a reference to an altercation between the mother and the paternal grandmother and an uncle (in April 2012) to which police attended but took no further action. There are no reports of allegations that the child was exposed to family violence perpetrated by the father against the mother.

4. When the parties were first seen by a family consultant in July 2012, the mother alleged that the father had been physically violent to her during the relationship and specifically alleged that he assaulted her on an occasion in October 2011 by grabbing her around the throat while he was holding the child. She stated that the father regularly “smashed beings” and destroyed property, including her phone. She said that police attended numerous times and asked her if she wished to apply for an AVO but she declined. The mother also referred to the incident in April 2012 in which she said her finger was dislocated when she was assaulted by the paternal grandmother and paternal uncle. The father denies physical violence in the relationship, but said there was ongoing verbal conflict, which the child had witnessed. He told the family consultant that both parties were responsible for the conflict, but the mother was the more aggressive person.

5. I am unable to make any positive findings with respect to family violence said to have been perpetrated by the father. In assessing whether there is an unacceptable risk that the child may be exposed to family violence if living with the father I have regard to the following matters. There is no evidence to suggest that he is violent in other intimate relationships, or that there is violence perpetrated within the extended paternal family household in which he lives. There are no allegations of ongoing violence to which the child is exposed and the father has not had contact with the mother for two years. There are no allegations made by the mother even when she participated in the proceedings of ongoing conflict or violence perpetrated by the father against her, to which the child may be exposed. On this basis I am satisfied that there is not an unacceptable risk that the child may be exposed to family violence in the father’s care.

1. Although the mother does not raise this issue in her Notice of Risk or in her initial interview with the family consultant, nor is it raised in any of the complaints to Community Services, consideration must be given to the issue of risk posed by the father, by virtue of his sexual assault conviction.

2. There is no account of the circumstances of the father’s offence in his affidavit though he does provide some material relevant to the risk associated with sexual abuse including a report from the Corrective Services file which will be referred to later in these Reasons.

3. Although the Magellan report refers to the issue of possible sexual abuse of the child by her father in a complaint made in July 2012, there does not appear to be much substance to this complaint. The report indicates that

   …[the mother] presented to a police station with a photo of [the child’s] vagina that was observed to have pimples and blisters on it. At that time [the child] was in the care of the father. There was no evidence that [the child] had been sexually abused, the pimples and blisters were considered to be consistent with poor hygiene or nappy rash. [The mother] was reported to be taking [the child] to the Doctors the following day.

   Community Services regarded the report as not meeting the threshold of risk of significant harm. In my view it would be expected that if any doctor to whom the child had been presented had any concern about sexual abuse, it would have been reported to the Department. If it were also a genuine concern held by the mother at the time, one would also expect that she would have included in her Notice of Risk and raised it in the initial report to the family consultant.

4. Although as noted the father does not set out an account of his sexual assault offence in his affidavit or provide the Remarks on Sentence from the sentencing court with respect to that offence, some of the facts can be gleaned from a psychological report (dated 22 April 2002) produced on subpoena by the Department of Corrective Services and referred to in the father’s affidavit.  That report indicates the following with respect to the offence

   [Mr Palma] committed the offences in September 1990 at the age of 22.  The victim was a 19 year old woman who was hitchhiking.  [Mr Palma] and his co-offender picked up the woman and drove her to an isolated area where both offenders ripped off her clothing.  [Mr Palma] raped the woman as she was held down by his co-offender.  During the struggle the victim kicked out the windscreen of the car.  [Mr Palma] was arrested on the day of the offence, but absconded to [South America], remaining there for eight years.  He subsequently notified NSW Police that he was returning to Australia and was arrested in Sydney on his arrival, being convicted of the offences on 2 July 1999.

5. The psychological report (which was prepared in connection with the father’s application for temporary leave programs) also indicates that the father received a fixed term sentence of three years with respect to the offence, and was due to be released on 1 July 2002.  It also relevantly indicated that the father had no record of previous offences in NSW, and at the time of the offences was drinking heavily and using amphetamines and marijuana.

6. Although the father’s offending did not involve a child victim, in my view given the nature and seriousness of the offence, it must be considered that some risk of harm arises by virtue of it.  So far as the magnitude of that risk is concerned I have regard to the details provided in the father’s affidavit about the rehabilitation programs he undertook in custody, many of which he says were voluntary.  The father says that as a result of these rehabilitative programs he believes that he gained insight into his offending and behaviour. 

7. The psychologist who assessed him in 2002 also set out the treatment programs undertaken by the father in custody, in particular an intensive eight month treatment program for men “who have sexually abuse adults, children or both”.  The program was described as being “designed to help offenders work on changing thinking, attitudes and feelings which led to their offending behaviour” and “targets the core issues common to sexual offenders”.  In that report the psychologist opines that the father made significant progress in treatment and in particular states the he took full responsibility for his offending behaviour, though she did note “he needs to continue working on his offence issues in the maintenance group”.  In that report dated April 2002 the author expressed the view the “risk of sexually reoffending was assessed using an actuarial risk assessment instrument” and the father was “in the medium-low risk range [for sexual re-offending]”.  The author assessed the father as suitable for day leave.

8. There is no evidence to suggest that the father has committed any further offence since his release from custody.  As noted the offence was committed in September 1990, 25 years ago when the father was aged 22.  Notwithstanding the serious nature of the offence, having regard to the foregoing matters, I am not of the view that there is an unacceptable risk that the father may sexually abuse the child if she continues to live with him.  I also note that the child has lived with her father for a number of years and there is no suggestion that she has ever been placed at risk on this basis. 

9. The only final matter to consider with sexual abuse is that the father identified he had been sexually assaulted by a family member when he was a child. The family consultant said that the person’s identity is unknown, and it is also unknown whether that person has any contact with the child. She opined that if that person does have contact with the child, “then significant concerns are held for her safety and well-being”. In the course of the proceedings, the father identified this person who had offended against him as a child (through statements made on his behalf by his legal representative, rather than through evidence) and said that the person had no contact with the child.  While it would have been preferable for evidence to have been given in this regard, I am nonetheless satisfied that no unacceptable risk in relation to the child arises on this basis. 

Does the mother pose an unacceptable risk of harm to the child?

1. The father has consistently maintained through his Notice of Risk, interviews with the family consultant on two occasions and in his affidavit that the mother poses an unacceptable risk of harm to the child by virtue of her erratic behaviour, verbally abusive and threatening behaviour towards the father which the child was exposed and her neglectful conduct towards the child as a result of her drug use.  The father sets out in his affidavit a history of the mother’s neglect of the child and her other children her extensive drug use and aggressive behaviour.  As indicated, the mother has not participated in the proceedings for some time and accordingly did not challenge this evidence and has confirmed some level of illicit drug use and need for rehabilitation.  The mother has not complied with orders concerning drug testing to assist the Court in making an assessment about the extent of her drug use.

2. The maternal grandmother also appeared to agree with the father’s allegations concerning the mother’s parenting incapacity due to her substance misuse and expressed her concern about the mother failing to participate in drug testing.  She also told the family consultant that she was fearful of the mother.  The family consultant was unable to make an assessment concerning the mother’s parenting capacity or allegations about her aggressive behaviour and recommended that the child not spend any unsupervised time with her mother in the future unless the mother’s drug use is assessed.

3. On the basis of the father’s evidence, the reports made to Community Services about the mother’s neglect, the mother’s limited admission to substance misuse and her failure to participate in drug testing and assessment by the family consultant, I am satisfied that there is an unacceptable risk that the child may be harmed through her mother’s neglect and erratic and aggressive behaviour when under the influence of illicit drugs.

The Law & Discussion

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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. 

2. As these proceedings were commenced after 7 June 2012, greater weight is to be given to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of her parents.

The benefit to the child of having a meaningful relationship

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].  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”.

   [1] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.

   [2] (2007) Fam LR 518.

   [3] [2006] FamCA 994.

2. Bennett J discussed the terminology in G & C (supra) 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).”

3. The focus of this consideration is whether there is a benefit to the child of having a significant or important relationship with each of her parents. As the Full Court said in McCall & Clark (supra) 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.

4. The father and the maternal grandmother both concede that there would be a benefit to the child of having a significant or important relationship with her mother.  The family consultant also does not make a recommendation that orders be made that the child spend no time with her mother.  It can be inferred that the family consultant also accepts that there would be a benefit to the child in having a relationship with both parents.  Indeed she seems to envisage that there may be psychological difficulties for the child if she has no knowledge and understanding of her mother and recognises that this be addressed in a therapeutic context. 

5. However, due to the mother’s disengagement from the proceedings, failure to co-operate so that her drug use can be assessed, and as she has spent no time with the child for almost three years, it is not possible to craft orders that would foster this relationship in the current circumstances. 

6. Under his proposal the father seeks an order that the mother not spend any time with, attempt to spend time with or communicate with or attempt to communicate with the child.  In the circumstances outlined where the mother has failed to take any steps to pursue a relationship with the child it can be assumed that she does not currently contend that the child would receive a benefit from having a meaningful relationship with her. 

The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. The father alleges that the mother has behaved violently and aggressively in the child’s presence and has neglected the child when under the influence of illicit substances.  For the reasons previously given, I am satisfied that the mother poses an unacceptable risk of harm to the child on this basis.

2. Although at one of the court appearances, the mother referred to her need to undergo rehabilitation, there is no evidence that she has sought any treatment for her substance misuse and she has resisted any attempts to assess that use such as through court ordered drug testing.  The family consultant recommended, and as indicated I accept her recommendation that the child not have any unsupervised contact with her mother unless and until the mother’s substance abuse can be assessed.

3. The father previously proposed that the mother’s time with the child be supervised and orders were made on for this to occur.  The mother’s time with the child was supervised by the maternal grandmother until June 2013 when the mother became uncontactable and her whereabouts unknown. Subsequently the child’s time with her mother was to be supervised by a children’s contact service but the mother did not take steps to engage with the service.

4. In circumstances where the mother has not seen the child since June 2013 and the child has no knowledge about the mother, it may be highly distressing for the child to be reintroduced to her mother in any way other than in a supervised or therapeutic setting.  In these circumstances it is my view that it is appropriate for orders to be made that there be no time with the mother.

Additional considerations

1. 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

1. The child is five years old and has not expressed a view in relation to her parenting arrangements.

Nature of the child’s relationship with each parent and other significant persons (including grandparents or other relatives)

1. The child currently does not have any relationship with her mother having not spent any time with her since she was two years old.  It is not known whether the child has any current memory of her mother. 

2. The child’s father has been her primary care giver and presumably her main attachment figure since July 2012.  The family consultant observed warm interactions between the child and her father and between other extended paternal family members.  The paternal grandparents and a paternal uncle have been significantly involved in her care for many years.

3. The family consultant also observed relaxed and comfortable interaction between the child and her brothers and with her maternal grandmother who has also played a significant role in her life.

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

1. The mother has not taken any role in decision making regarding the child at least since separation in July 2012.  She has also failed to take the opportunity to spend time with the child after supervised time was ordered and did not even take steps to engage with the contact centre.  There is no evidence of her communicating with the child since at least June 2013.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The father has entirely assumed the obligation to maintain the child since separation.

Likely effect of change in the child’s circumstances

1. In her Response the mother proposed orders that the child live with her and that she have sole parental responsibility for her.  Clearly such orders would have a profound effect upon the child who would experience separation from her father as devastating and distressing.  However, the mother did not pursue such an application and there is no evidence to suggest that such orders are currently being pursued or in the child’s best interest. 

2. The father’s proposal will not bring about any change in the child’s circumstances.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. The father does not propose that the child spend any time with the mother.

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

1. The father has demonstrated that he has the capacity to provide for all of the child’s physical and day to day needs since separation.  There is no evidence to suggest that there are any shortcomings in his parenting capacity to meet the child’s needs.

2. As previously indicated, I am satisfied that the mother has shown significant incapacity in meeting the child’s needs when the mother was involved in her care prior to separation.  It is of significance that the mother’s other two children are also not in her care.  The impact of illicit substance use upon her parenting capacity appears to be a significant factor.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. The child is of South American heritage through her paternal side and appears to share the benefits of her culture by virtue of residing in her paternal family’s home with extended family members. The father has sought particular orders permitting him to apply for a passport for the child and to travel overseas with him without obtaining the consent of the mother. Travel to South America and South American countries would enhance the child’s opportunity to enjoy her heritage first hand.

2. The father engaged in serious criminal activity over 25 years ago but since that time appears to have been rehabilitated and engages as a productive member of society.  He has been employed, has not been involved further in the criminal justice system and appears to hold pro-social values. 

1. The mother appears to continue to engage with a lifestyle characterised by substance misuse.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. This is a significant factor in this matter in my view.  The father has taken a responsible attitude towards raising his child since separation from the mother and for some time attempted to foster a relationship between the child and her mother.  The mother has displayed an irresponsible attitude and conducted herself in a manner which prioritises her own needs rather than being child focused.  Her failure to spend time with the child for almost three years and to have disengaged from these proceedings in my view are significant matters.

Family violence relating to the child or a member of the child’s family

1. The father makes allegations against the mother that she has engaged in physically and verbally abusive behaviour towards the child and towards the father to which the child has been exposed. As this allegation is not challenged and is consistent with my findings about the mother’s behaviour associated with her drug use I am satisfied it did occur.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. In circumstances where the mother has been disengaged from the proceedings for some time it is difficult to assess whether there is a likelihood of further proceedings in the future.

Parental responsibility

1. 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.

2. In Goode & Goode[4] 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. The effect of a parenting order that provides for shared parental responsibility pursuant to s 65DAC(2) is that decisions about major long-term issues are required to be made jointly and require the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision about that issue.

   [4](2006) FLC 93-286.

3. The mother proposes that sole parental responsibility be given to her and the father proposes that sole parental responsibility be given to him.

4. 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.

5. 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)).

6. Given the father’s inability to contact the mother, the mother’s disengagement from the child’s life and having regard to the considerations discussed above I am of the view that it would not be in the child best interests for the parents to equally share parental responsibility for her. I am satisfied that it is in the child’s best interests for the father to hold sole parental responsibility for her.

Conclusion

1. Having regard to all of the best interest consideration I am satisfied that the orders proposed by the father are in the best interest of the child.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 April 2016.

Legal Associate: 

Date:  18 April 2016