PENDLEY & SPIRES

[2019] FCCA 1653

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENDLEY & SPIRES [2019] FCCA 1653

Catchwords:
FAMILY LAW – Parenting – undefended orders – family violence – unacceptable risk – change of residence – sole parental responsibility – supervised time.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CC(2), 60CC(3) 61DA, 69ZW

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 13.03C, 16.05
Evidence Act 1995 (Cth), ss.140

Cases cited:

Allesch v Maunz [2000] HCA 40

Applicant: MS PENDLEY

Respondent: MR SPIRES

File Number: MLC 7554 of 2012

Judgment of: Judge Stewart

Hearing date: 13 March 2019

Date of Last Submission: 13 March 2019

Delivered at: Melbourne

Delivered on: 18 March 2019

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Counsel for the Respondent: Mr Atkinson

Solicitors for the Respondent: Coote Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Radich

Solicitors for the Independent Children's Lawyer: Clark Family Lawyers

ORDERS

1. Leave is granted to the Father and the Independent Children’s Lawyer to proceed on an undefended basis in these proceedings.

2. All previous parenting orders in relation to the child X born … 2011 (“X”) be and are hereby discharged.

3. The Father have sole parental responsibility for X.

4. X live with the Father.

5. X spend time with the Mother as follows:-

   (a)each alternate Saturday between 12.00 noon and 4.00pm, with such time to take place at a public venue as agreed between the parties and under the supervision of the paternal grandmother Ms A, or such other person as agreed between the parties;

   (b)at such further and other times as may be agreed between the parties from time to time.

6. The Mother’s time with X pursuant to order 5 hereof shall take place only if she has provided 48 hours’ prior written notice by email that she intends to exercise such time.

7. The Mother is at liberty to have any or all of X’s siblings present during any period of time that she is spending time with X.

8. The Mother is permitted to telephone X each Tuesday and Thursday between 5.00pm and 5.30pm, with the Mother to initiate such call to the Father’s mobile number ….

9. The Mother be and is hereby restrained from bringing X into contact with or remain in the presence of Mr B during any period she is spending time with X.

10. The Mother attend individual counselling for assistance with the changing attitudes that support family strategies for appropriate co-parenting communication, until considered unnecessary by that professional.

11. The Mother and the Father attend individual counselling regarding post separation parenting.

12. The Father, his servants or agents be and are hereby restrained by injunction from:-

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the Mother; and

    (b)discussing these proceedings;

    with or in the presence of the X and from permitting any other person from doing so.

13. The Mother her servants or agents be and are hereby restrained by injunction from:-

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the Father; and

    (b)discussing these proceedings;

    with or in the presence of the X and from permitting any other person from doing so.

14. Notwithstanding order 3 hereof, the Father is not permitted to change X’s name.

15. The Father advise and keep the mother advised of any serious health issues or injury pertaining to X.

16. The Father advise and keep the Mother advised of his contact telephone number, residential address and any school X attends from time to time.

17. Liberty is granted to each of the parties to attend any school functions or extra-curricular functions that parents are invited to attend.

18. The Father be permitted to retrieve X from the Childminding Centre of this Court upon these proceedings concluding.

19. At a time designated by the Independent Children’s Lawyer, the Father attend with X on Dr C, with the Independent Children’s Lawyer present, for the purpose of Dr C explaining these orders to X.

20. These reasons for decision be transcribed, placed on the Court file and provided to the parties.

21. The Independent Children’s Lawyer serve a sealed copy of these orders on the Mother by forwarding same by ordinary pre-paid post to her at D Street, Suburb E, in the State of Victoria and by email to ….

22. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out the Factsheet attached and these particulars are included in these orders.

23. All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:

A.Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party.

IT IS NOTED that publication of this judgment under the pseudonym Pendley & Spires is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7554 of 2012

MS PENDLEY

Applicant

And

MR SPIRES

Respondent

REASONS FOR JUDGMENT

1. This is a difficult case. These are proceedings with respect to a child, X (“X”) born … 2011. X is eight years old and has lived in the primary care of his Mother for the entirety of his young life. X has five siblings in the Mother’s home, two of whom are older and three of whom are younger. There was a reference throughout the course of the proceedings that he may soon have a sixth sibling in that home.

2. X’s siblings all share the same parents, the Mother and Mr B (“Mr B”). X was the product of a brief relationship between the Mother and the Father in these proceedings, outside of the Mother’s still intact relationship with Mr B. 

3. The primary issue before the Court is whether X should continue to live with his Mother or whether his care should change to the Father. The change will be a serious and devastating event for X. If his care changes it will represent a wholesale change to his living arrangements. The result will be the removal of him from the primary care of his Mother to the care of his Father, resulting in his removal from not only his Mother but also Mr B and his siblings with whom he has lived his entire life. This is a serious case with serious considerations to take into account.

4. By way of background, the Father was born in 1981 and is 37 years old. He is employed as a professional at Employer  G. The Mother was born in 1986 and she is 32 years old. In December 2017 she described herself as engaging in home duties. There has been very little information from her since that time. The Family Report prepared in these proceedings by Dr C (“Dr C”) indicates that the Mother has not been employed outside of the home since her teenage years.

5. The parties were in a relationship for a period of around nine months between 2004 and 2005. They separated in mid-2005 but recommenced a brief affair in 2010, whilst the Mother was in her relationship with Mr B. The Mother fell pregnant and X was born in … 2011.

6. This is not the first round of litigation in these proceedings. In terms of the procedural history, the parties have engaged in a previous round of litigation which commenced when X was an infant, just shy of one year old. Those proceedings concluded with final orders being made by Judge Harman on 30 September 2013. 

7. Relevantly, the parenting orders provided for the parents to have equal shared parental responsibility for X, for X to live with the Mother and spend time with the Father on an increasing basis. X’s time with the Father was to work up to an arrangement of each alternate weekend from after school (or kindergarten) on Friday until the commencement of school (or kindergarten) on Monday, with further time each Wednesday night until the commencement of school (or kindergarten) on Thursday morning.

8. There were orders made for further time between X and the Father during the school holidays, on birthdays and other special occasions. There were further orders for telephone communication between the Father and X upon X turning three. Changeovers were to occur at school (or kindergarten) where practicable, and otherwise at the F Shopping Centre. There was an order for X’s name to be changed to X and there were various information notification and non-denigration orders made.

9. The present litigation commenced by way of the Mother’s Initiating Application for a Recovery Order filed on 27 December 2017, as a result of the Father’s over-holding of X around 15 December 2017. The Mother sought the Recovery Order and an order for X to live with her. She sought liberty to further particularise her orders in relation to X’s time with the Father subsequent to the outcome of the Recovery Order application.

10. The Father filed his Response on 25 January 2018 seeking orders that the parties have equal shared parental responsibility, X live with him, and that he be otherwise excused from particularising the orders that he sought. In relation to the over-holding, the Father asserted that despite repeated attempts to contact the Mother to seek her permission to have X attend and be a page boy at the wedding of the paternal aunt on … 2017, no response had been received from the Mother and as such he collected X from school as proposed by him on … 2017.

11. The Father had previously sent a letter to the Mother via registered post that noted if no response was received by her, he would assume that the time was consented to. That explains the overholding on … 2017. The continued overholding of X is not the high point of the Father’s case.

12. The proceedings came before the Court on 31 January 2018 and an order was made for the parties to attend a Child Inclusive Child Dispute Conference (“Child Inclusive Conference”) pursuant to section 11F of the Family Law Act1975 (“the Act”). The parties were to attend that Child Inclusive Conference the next day and the proceedings were otherwise adjourned to the afternoon. It was specified in the orders that the Mother was to attend at Court for the purpose of the Child Inclusive Conference with X at 9.00am and the Father was to attend at 10.00am. That becomes relevant because the Mother did not attend until 2.15pm the following day, citing confusion arising from the previous day.

13. The Family Consultant was able to interview the Mother at this late stage and observe X with both of his parents. The proceedings were adjourned to 6 February 2018 and the Mother was ordered to attend Court that day, costs were reserved. There were two Child Inclusive Conference memorandums completed by the Family Consultant.

14. On 6 February 2018 the Mother attended in person and the Father was represented by Counsel. I made orders to recommence the Father’s time with X as the Mother had unilaterally suspended the Father’s time as a result of the circumstances of the previous December. I further ordered that make up time occur over the school holidays and various orders with respect to email and address notifications, a DHHS report pursuant to section 69ZW of the Act, that the parties attend upon Dr C for the preparation of a Family Report, that the parties attend and complete a post-separation parenting course and that the proceedings be adjourned to 5 September 2017. I note that this was a typographical error and the matter was obviously listed in 2018 following the release of the Family Report. There proceedings were listed for final hearing on 15 April 2019.

15. The proceedings came before the Court on 5 September 2018 where both parties were represented by legal practitioners. On this date the proceedings were listed for final hearing on 17 December 2018, given the nature of the proceedings and the content of the Family Report. That is, the hearing date was expedited from the previous hearing date.

16. On 17 December 2018 the Mother appeared in person and the Father was represented by Counsel. The proceedings was unable to proceed on the basis that the Mother had not filed any further material and the proceedings required further case management on the basis of the content of the Family Report. The proceedings were adjourned to 31 January 2019 and the Mother was ordered to file and serve an amended Initiating Application and any affidavit/s upon which she sought to rely on by 25 January 2019. Otherwise the documents produced on subpoena were released for inspection.

17. The proceedings came before court on 31 January 2019. On that date the Mother did not attend. She was on notice that there were significant concerns with respect to X. The Father was represented by Counsel and on that date and I made an order for the appointment of an Independent Children’s Lawyer. This was important in circumstances where the consequences of the orders sought by the Father would be sought on an undefended basis, and were so serious and of such significance to X’s future welfare. The Independent Children’s Lawyer was appointed to form, or be in a position of being able to be, a contradictor in the event that they formed the view that the orders sought by the Father were not in the best interests of X.

18. Further orders were made listing the proceedings on 15 February 2019 for mention following the appointment of the Independent Children’s Lawyer. The proceedings were further listed to 13 March 2019 for an undefended hearing, unless the Mother made an application in writing to set aside that order, which application was to be accompanied by an affidavit setting out her non-attendance at court and her non-filing of material pursuant to the orders of 17 February 2018.

19. Further orders was made for the proceedings to be listed urgently for mention on 48 hours notice in the event that the Mother filed an application. There were orders for the Father and the Independent Children’s Lawyer to file and serve a case outline setting out specific final orders sought by 4 March 2019. I also made specific orders for service upon the Mother.

20. I recorded the following notations on 31 January 2019:-

    A. There was an attempt by the Court to contact the Mother at 1.00pm today.

    B. Over the luncheon adjournment the solicitor for the Father was directed to send an SMS text message to the Mother and advise her there would be a further attempt to contact her between 2.15pm and 3.00pm today.

    C. At approximately 2.35pm today a further attempt was made to contact the Mother by telephone.

    D. The Mother was called outside the precinct of the Court today between 9.45am and 10.15am.

    E. In the event that the matter proceeds undefended pursuant to these orders, the Court will consider on the adjourned date whether there should be a change of residence of X from the Mother to the Father.

21. In terms of procedural fairness, there were two affidavits filed by the Father, one by his solicitor and one by his solicitor’s assistant. These affidavits set out in great detail how the requisite documents were served and attempted to be served on the Mother.

22. On 15 February 2019 the Mother was called outside of the Court at 11.43am. The Mother did not attend Court and at the request of the Independent Children’s Lawyer, I made a further order pursuant to section 69ZW of the Act, requesting a further report from the Department of Health and Human Services (“the Department”). That document has been provided and is dated 22 January 2019.

23. The proceedings otherwise remained listed on 13 March 2019 and proceeded as an undefended hearing on that date.

24. In these reasons I propose to set out the principles with respect to undefended hearings. Pursuant to rule 13.03C of the Federal Circuit Rules 2001 (“the Rules”):-

    (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

    (a) adjourn the hearing to a specific date or generally;

    (b) order that there is not to be any hearing, unless:

    (i) the proceeding is again set down for hearing; or

    (ii) any other steps that the Court or the Registrar directs are taken;

    (c) if the absent party is an applicant--dismiss the application;

    (d) if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;

    (e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.

    (2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.

25. The High Court in Allesch v Maunz [2000] HCA 40, held that a party has a right to appear or to be heard on a matter. As was pointed out by Justice Kirby at paragraphs 38 to 40:-

    Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard although such opportunity is provided.  Affording the opportunity is all that the law and principle require.  

    Decision makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.  This consideration may be especially relevant in relation to the Family Court where emotions often engendered by the highly personal issues involved can sometimes cloud rational thought. 

    Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment.  The rights of other parties are commonly involved.  In the Family Court the rights of non-parties, especially children, may be affected.  Additionally, as this court itself has accepted, the rights of the public in the efficient discharge of courts of their functions must be weighed against unreasonable delay in concluding the litigation. 

26. I also refer to rule 1.03 of the Rules which states as follows:-

    (1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

    (2) In accordance with the objects of the Act, the Rules aim to help the Court to operate as informally as possible, to use streamlined processes, to encourage the use of appropriate dispute resolution procedures.

    (3) The court will apply the Rules in accordance with their objects. 

    (4) To assist the court the parties must avoid undue delay and expense and technicality and consider options for primary dispute resolution as soon as possible. 

27. Those objects are relevant to undefended proceedings in family law matters. An additional consideration in parenting proceedings are the objects and principles of the Act.

28. Section 60B of the Act sets out the objects of Part 7 as follows:-

    To ensure that the best interests of children are met by:

    (1) ensuring the 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

    (2) protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence; and

    (3) ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

    (4) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

29. The principles which underlie the objects specify, except when it is or would be contrary to a child’s best interests, that:-

    (1) 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

    (2) 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

    (3) parents jointly share the duties and responsibilities concerning the care, welfare and development of their children;  and

    (4) parents should agree about the future parenting of their children;  and

    (5) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Those objects and principles apply equally in assessing whether to proceed on an undefended basis and how parenting orders should be made with respect to X. I have set those principles out in detail because they are of particular relevance when I consider the serious nature of the consequences which apply to X, when considering whether he should live with his Father.

2. I am well satisfied that the matter should proceed on an undefended basis. Proceeding on an undefended basis is the only way to ensure that X’s welfare is met in terms of the particular circumstances of his life as best I am able to establish, in circumstances where the Mother has been either unable or unwilling to participate in these proceedings.

3. I am also well satisfied that the Mother is aware of the proceedings and that she has chosen not to participate. At least since the release of the Family Report in which Dr C makes a recommendation for the urgent transfer of X’s care to the Father, the Mother is and has been aware of the serious consequences for X and the concerns that exist for X’s welfare in her household.

4. I am satisfied that the Mother is aware, or should be aware, that due to risk issues in her household a change of residence for X is a real possibility.

5. In all of the circumstances leave is granted to the Father and the Independent Children’s Lawyer to proceed on an undefended basis and that will be the first order.

6. In particular, when I consider the consequences to the Mother to proceed in her absence and the interests of the Father, and particularly X’s interests in having the proceedings determined with undue delay, expense, technicality and with an appropriate regard to the risk issues in the case, I consider that all factors point towards me dealing with this case on an undefended basis.

7. Finally, I further note that rule 16.05 of the Rules at least has some ameliorating effect with respect to the imposition of an order. Rule 16.05 of the Rules provides that:-

   (1) The court may vary or set aside its judgment or order before it has been entered. 

   (2) The court may vary or set aside its judgment or order after it has been entered if:

   (a) it was made in the absence of a party; or

   (b) it was obtained by fraud; or

   (c) it is interlocutory; or

   (d) it is an injunction for the appointment of a receiver; or

   (e) it does not reflect the intention of the Court; or

   (f) the party in whose favour it was made consents; or

   (g) there is a clerical mistake in the judgement or order; or

   (h) there is an error arising in the judgement or order from an accidental slip or omission.

   (3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.

8. Although this rule does not impart a right to have orders made in the absence of the Mother set aside, it does provide a procedure within which the judicial processes of the first instance Court to revisit a decision made in the absence of the party can be enlivened. In this particular case that would no doubt involve a consideration of why the Mother has failed to attend at the hearing, the merits of the Mother’s claim in the event that the original order is to be set aside in addition to other matters relevant to the exercise of discretion.

9. I would hope that the Mother does come to Court and seek to work out what can be put in place for X. The orders that I make will take X away from his primary family, the family that he has known as his primary home for all of his life. The orders will impose a supervised time regime between X and his Mother and his siblings. I do not regard that regime as being something that can go on for extended periods of time.

10. I turn now to the applications.  The Independent Children’s Lawyer and the Father each filed an outline of case which were helpful. Initially the application of both the Father and the Independent Children’s Lawyer was that the Father have sole parental responsibility for X, that X live with his Father and that X spend each alternate weekend with his Mother from Friday through to Sunday, half school holidays and special occasions. There were various proposals for X to spend time with his Mother on special days and birthdays, telephone communication and for changeover.

11. The Independent Children's Lawyer sought orders for counselling and orders for non-denigration information and notification clauses.  For the reasons that will become apparent shortly, I do not regard those orders as being in X’s best interests. When the evidence was explored with Dr C, who came to Court and gave evidence, it became apparent that simply removing X from his Mother’s primary care and then seeking to insert him back into that environment on an alternate weekend basis was likely to be difficult for him. Furthermore, the consequences of the removal of him from his Mother’s care and the reactions within that household, particularly those of Mr B, are unknown and unable to be assessed at this time.

12. Given that Dr C has such significant concerns for X’s welfare, as he set out in the Family Report and in his viva-voce evidence, I regard the risk as too great to simply insert X back into that environment without knowing what it would be like for him. It may be that in the longer term those are the appropriate orders. The orders that I will make now, place him in a position where he will be spending a period of hours per fortnight with his Mother and his other siblings, as opposed to living full-time in that household. The orders that I propose to make are also attendant with risk in that it may be that X does not adjust to the outcome of this case. It may be that X has a very difficult time ahead of him in terms of adjusting to the change in his circumstances, not just in a physical sense, but also in an emotional and a psychological sense. It seems to me, having regard to the content of the material and the assessment by Dr C, that the Father is in the best position to do that and it is likely that he will seek out appropriate care and support for his son.

13. I note that the Father has demonstrated, as best I can assess on the material and the Family Report, a degree of insight in respect of what X’s needs actually are. On balance, I am satisfied that the Father will promote, nurture and facilitate the relationship between X and the maternal family, provided that it is safe to do so and is done so in a way that promotes X’s welfare.

14. I note that the Father is also supported in that role by the paternal grandmother who has also provided affidavit evidence in the proceedings and on 13 March 2019 indicated readily that she would be prepared to supervise time between the Mother and X, together with X’s other siblings. The Mother will need to provide the appropriate notice that she is prepared to undertake time at an independent venue given the nature of the sibship and where that time might take place. As indicated, at least to start with, an appropriate place would be something like a children’s play centre where there are things for children to do and places for parents to sit.

15. I also note that the Father generously indicated that in the event that there was a cost associated with entrance fees and the like to a play centre, such costs would stand in the way of the Mother being able to enjoy her time with X and for X especially to be able to enjoy the time with his Mother and hopefully some of his other siblings. He would fund those costs if necessary. The combination of those things demonstrates that there is a real appreciation in the paternal household that this change is going to manifest some difficulties for X and that they will be dealt with in a sensitive and loving way for X, putting his interests at the fore.

16. I propose now to go into some of the evidence in the proceedings. In these reasons, and pursuant to section 140 of the Evidence Act 1995, the standard of proof in these proceedings is to the balance of probabilities.  During the undefended hearing and within the file there are numerous facts and matters that have both been set out in affidavit material, set out in reports, set out in subpoenaed documents, set out in the Department’s documents, which have been referred to by Counsel for the Father and the Independent Children's Lawyer.

17. It is not possible in these reasons to refer to every fact or matter in these proceedings, and nor is it necessary to do so.  I have had regard to the totality of the evidence. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it. In these reasons a statement of fact is a finding of fact unless it is obvious from the context that I am reciting the position of one of the parties.

18. In terms of how the matter proceeded, the only person who gave evidence in the proceedings was Dr C and he was cross-examined.  The Independent Children's Lawyer did not require the Father or the paternal grandmother for cross-examination.

19. Dr C has prepared two Family Reports in the proceedings. The first in 2013 and the second in 2018 under the cover of an affidavit filed on 31 October 2018.

20. As a result of his longitudinal study of the family, Dr C is acutely aware of the history between the parties and the circumstances that have been applicable to X for a period over five years.

21. Dr C was critical of the Mother. At paragraph 18 of the second Family Report he said:

    At times she impressed with a fairly cursory understanding of the complexity of the current circumstances and the implications of certain decisions on her son. There are also some statements, which on the surface, suggest a somewhat callous, selfish posture in relation to X’s care arrangements.

22. Importantly, he went on to note as follows:-

    For example, her assertion that if the court were to allow her only alternate weekend time with X she and her partner would simply move to Tasmania and very likely have little ongoing involvement with her son. In many respects she presented as an under-resourced and insightless parent.

23. At paragraph 25, Dr C described the Father as follows:-

    He presented with a friendly, conciliatory, and reasonable demeanour. There was nothing anomalous about his mental state He appeared to provide information in a genuine way, and his narrative remained internally consistent even when pressed. He was eminently child-focused, and indeed, was quite complimentary about the applicant Mother at points, despite their difficult history.

24. Further, Dr C noted in the first Family Report that:-

    Mr Spires did not impress as inclined to find fault with Ms Pendley, Indeed he presented as quite reasonable regarding the complex and social circumstances that surround X.

    I shall refer in more detail to other aspects of Dr C’s evidence throughout these reasons.

25. Dr C is a professional witness. His qualifications as a psychologist and his experience in academic writings are attached to his 31 October 2018 affidavit in the form of a curriculum vitae. 

26. Dr C, in summary, regards X as being at serious risk of physical harm in the Mother’s household. He advised the Court that he was so concerned about X’s physical safety in the Mother’s household that he was concerned that there would be an “extinction burst”.

27. What I understood that to mean is that he was concerned that there could be very serious physical violence inflicted on X by Mr B and that X’s birth, and the circumstances of his birth, are such that he is placed as the odd child out in the maternal family constellation.

28. On the available evidence, Mr B presents as a person who is uncontained in his physical treatment of not just X, but there are also very serious concerns that the Mother herself is subjected to family violence in that household. There is some external support for that and I propose in a moment to go through the report of the Department dated 22 January 2019. 

29. There have been 20 previous reports in relation to the sibling group within the Mr B-Pendley family (or the maternal family), 18 of which relate specifically to X. Of the 20 previous reports, 18 were closed at intake and two proceeded to protective intervention. The two reports that proceeded to protective intervention occurred during 2011 and 2016.  The current report before the Department, dated December 2018 and presumably as a result of these proceedings, has progressed to protective intervention.

30. The protective assessment reads as follows:-

    Child Protection hold concerns for X’s emotional and psychological wellbeing as a result of Ms Pendley and Mr B’s relationship and believe it is highly likely that Child Protection will continue to receive further reports, particularly relating to X’s emotional wellbeing, if Mr B and Ms Pendley fail to make changes in their behaviours and interactions towards X.

    It is clear to Child Protection that Mr B does not see X as his own child and often berates X in front of Ms Pendley and his half siblings.

    Mr B makes derogatory comments relating to X, in front of him, calling him “it” with the direct comment made by Mr B that “It is not even my child, it is a result of an affair, I was loyal enough to stick around”.

    Child Protection have repeatedly assessed Ms Pendley and the children are victims of family violence with concerns Mr B does not support Ms Pendley during pregnancies, is not present during the births, does not assist in driving Ms Pendley to the hospital upon her going into labour at which point Ms Pendley seeks support from services such as Child Protection and family support agencies to be in the delivery ward with her as a support person.

    Mr B rarely engages with Child Protection and pattern and history shows Ms Pendley will also disengage from Child Protection in the presence of Mr B, making it difficult for Ms Pendley to make and maintain changes in the family home.

    As a result of Mr B’s presentation and interactions towards X along with Ms Pendley’s inability to challenge Mr B on these behaviours, their parenting capacity and ability to protect X and ensure his safety and well-being is diminished, placing X at risk of further emotional and psychological harm in their care.

31. I pause here to observe that Dr C was very concerned that the Department’s concern could escalate into physical harm to X in the Mother’s family home.

32. In terms of recommendations, the Department said:-

    Child Protection would support X being placed in the full time care of his biological father, Mr Spires with no contact between X and Mr B until such time that Mr B actively engages with a parenting program and Men’s Behavioural change program and shows visible changes in his parenting craft and behaviours towards Ms Pendley and his biological children.

    A further assessment will be required upon Mr B successfully completing the above mentioned programs prior to contact recommencing between Mr B and X.

    I concur.

33. One of the saddest aspects of this case, and that which I have considered, is that the Mother may herself be a victim of family violence. She may find herself in a position where she is unable to improve her position due to being a victim of family violence within the home. From my point of view, that makes this case particularly devastating and it is a very real example of how family violence can impact on the welfare of a child.

34. However, I must place X’s best interests at the forefront of my mind and that is what I will do in these proceedings. I am very much aware that the Mother will also struggle with this result and she may in fact be impacted within her own household or blamed because this has occurred.  Equally, however, I am sure that in order to advance a child’s welfare they need to be cherished, loved and valued in their primary home. The Father is able to offer that to X, whereas the Mother cannot. 

35. Even on that basis, I would be satisfied that it is appropriate that X’s primary residence be changed at this time. He is a little boy of seven and he has much growing up to do. Although Dr C is of the view that some damage has been done already, I am of the view that with a household where he is loved, cherished and valued that there will be much that is able to be done to redress what has occurred. The improvement in his circumstances hopefully will provide an ameliorating factor for the change of circumstance, most particularly, the abrupt diminution in his relationship with his Mother and also his relationship with his siblings.

36. The various reports to the Department are, in summary, as follows:-

    a)In 2011 when the Mother was six weeks pregnant with X, a report was received in relation to family violence in the maternal home by Mr B against the Mother. A verbal altercation began as Mr B refused to attend the birth. At this time Mr B was believed to be the Father. It is reported that Mr B threw a plate, then a chair towards the Mother. It is reported that he also approached the Mother with knife, causing a superficial defence injury to her palm. The police were notified but the Mother was unwilling to make a statement. Mr B was charged and police issued an Intervention Order, which did not exclude Mr B from the home. Ongoing investigation identified there had been previous incidents of family violence perpetrated by Mr B toward the Mother. Child Protection substantiated protective concerns, but Mr B did not engage with Child Protection;

    b)There was a further report in July 2011, as the Mother had failed to engage with support services at 21 weeks pregnant. This report was closed at intake as there was nothing to suggest immediate safety concerns;

    c)In 2012, a further report was received in relation to family violence. It was alleged that the Father in these proceedings had smacked Y, one of X’s older siblings. The Mother took Y to the police station and the police detailed that some marks were observed. The case proceeded to closure given that the father addressed the concerns by appropriately contacting police. This incident is denied by the Father in his material-;

    d)In mid-2012, a report was received in relation to family violence between the Mother and Mr B. It was reported that Mr B was exhibiting stalking behaviour towards the Mother and had taught the children to call her a “slut”. It was not assessed that there were immediate safety concerns for X and the other children’s wellbeing at that time;

    e)In 2013, there was a report in relation to Mr B using inappropriate physical discipline and hitting Y on her back. That report was closed after intake as the family continued to engage with family services;

    f)In 2014 a report was received with respect to family violence where it is alleged that Mr B physically used his chest to push the Mother and verbally abuse her. At this time Ms Pendley was pregnant with her fourth child. Following this incident a full Intervention Order was granted excluding Mr B from the home and the children’s school. The Intervention Order did not excuse Mr B from contact with the children. The matter was closed at intake given the significant decrease in risk to the children’s safety given the Intervention Order;

    g)Things were quiet for a couple of years but in 2016 a report was received in relation to Mr B hitting Y and X on the head with a wooden spoon. There were also reports of “a lot of hitting and kicking within the family home”. The matter proceeded to protective intervention due to the risk of physical and emotional harm and the risk was substantiated. Both Mr B and the Mother were assessed as responsible for harm. The matter proceeded to closure after Mr B and the Mother agreed to the conditions of a safety plan to “not hit the children, maintain school attendance and engage with services”;

    h)Later in 2016, there was a further report concerning family violence between Mr B and the Mother. There were concerns that Mr B was using intimidation against the Mother. The children were fearful and did not want to leave their mother to attend school. The Mother was 15 weeks pregnant with her fifth child. The report progressed to closure as the Mother was engaging with services and showed some insight into the effects of family violence on the children;

    i)In November 2016, a further report was received by the Department in relation to continued family violence between Mr B and the Mother. The Mother indicated that she wanted to end the relationship and a safety plan was made for her to leave the house;

    j)A further report was made in November 2016 as the Mother had disengaged with family services but the matter was closed;

    k)In April 2017, the Department received information in relation to alleged family violence by Mr B threatening to punch Y in the face. Further concerns were raised in relation to Mr B’s refusal to hold his new born daughter H, due to her being female. The Mother acted protectively by removing herself and the children from the home and the matter proceeded to closure;

    l)In July 2017, the Mother again disengaged from support services;

    m)By September 2017 family violence was alleged in the home between the Mother and Mr B. Mr B was allegedly demonstrating controlling behaviours and verbally abusing the Mother. The matter closed at intake due to the Mother’s re-engagement with services;

    n)In October 2017, it was reported that Y was absconding from the family home. The matter was closed at intake;

    o)A further report was made in October 2017 after a family service agency ceased engagement with the family;

    p)In November 2017, family support worker visited the Mother’s family to try and establish goals with the Mother in addressing Y’s behaviour issues;

    q)There were concerns for X being “manhandled” by Mr B on 15 December 2017;

    r)In January 2018, the Department received information with respect to the Mother’s failure to attend medical appointments and address her medical needs. The Mother self-referred to Child First and the matter closed;

    s)There was a secondary report received in January 2018 where the Department received additional information in relation to concerns for X’s safety in his Father care. An urgent recovery order was granted for X over the Christmas period and he was returned to his Mother;

    t)A further report was received in January 2018, which progressed to intake and assessment. The report was in relation to X’s exposure to ill treatment when in the care of the Mother. The report details information that X experiences emotional abuse by Mr B and had obtained bruising from his half-siblings. There was concern in relation to the Mother and Mr B’s lack of intervention and supervision in these instances, allowing X to be physically harmed;

    u)In April 2018, the Department received information concerning the Mother’s mental health following the birth of her sixth child, J.  The Mother experienced suicidal ideation. Additional concerns related to the Mother’s ability to provide safety and care for the children. A CAT team was contacted and the family were to engage with a maternal child health nurse;

    v)A further report was received in May 2018 surrounding the Mother, her infant child and her mental health;

1. I have set out the report of the Department in detail because it presents a concerning picture. Dr C was very concerned about this picture. It shows a situation of escalating family violence within the home, continual family violence within the home and a history of commencing with services but then withdrawing from them. It further portrays a picture of a woman, being the Mother, who is under significant stress, with a partner who is not only unsupportive, but violent towards her.

2. When I place X in this context, when he is the odd child out, having a different biological father, there are real and serious concerns for his wellbeing. They were articulated by Dr C during cross-examination. Dr C was concerned that:-

   … this child [X] has been scapegoated not only by his stepfather, but also that his mother is powerless to do anything to come to his aid. Within the sibship and the sibling constellation with the other children, he is also being exposed to family violence within the home. X is also scapegoated by his siblings and hurt by them in the circumstances that he finds himself.

3. This places X at a very real risk, and certainly an unacceptable risk, of being exposed to physical, psychological and emotional harm within his household. I also refer to and repeat the concerning issues that are set out in the Family Report, specifically Dr C said at paragraph 35 as follows:-

   With his Mother, X was perhaps more responsive to her input. He appeared to relish in the individual attention from Ms Pendley. It did appear as though X may not have been as accustomed to his mother taking such a particular interest in his activities. X was noted to be far less boisterous in play with his mother as opposed to that noted with Mr Spires. Ms Pendley herself presented as warm, and gentle and patient. She allowed X to direct the course of activities, though made several suggestions at points. She provided encouragement and took educational opportunities as they presented.

   At paragraph 38:-

   Based on the information available at the time of assessment, it is clear that Ms Pendley bears much of the responsibility for the problems in the co-parenting relationship.

   Further, Dr C said at paragraph 58 that:-

   Over many years, she has failed to communicate with him [the Father], inform him, or involve him in decisions about X’s care and upbringing. She has sabotaged his attempts to work through the situation. She does not view Mr Spires as valuable in X’s life. Although there are very likely ramifications for her relationship with Mr B arising from her interacting with Mr Spires, this, in itself, does not fully account for her conduct. She is egocentric. She is entitled. She shows poor insight and capacity to put herself in Mr Spires' position.

4. Dr C accepted that the Mother was subject to an extremely complex dynamic in which her engagement with the Father may well be denounced by her current partner. This does not account entirely for her conduct over many, many years when Dr C was speaking about her failure to promote a meaningful relationship between X and his Father.  When I consider that in the context of this case, it is important because the Father’s involvement in X’s life may have been able to contribute to these issues as a protective feature, but it seems unlikely that the Mother is able to even do that for X.

5. Dr C commented that he did not think that X was uncomfortable in the maternal environment at this stage and that his wishes should carry very little weight.

6. X’s relationships with the parties were observed to be positive and Dr C commented that he had forged positive bonds with his Mother and his Father. Dr C observed X with his Father and that “the relationship is fun. There is not the same type of encumbered dimension to this child's connection with Mr Spires.” When setting out risk issues, he indicated that there were several risk issues in the case that warranted the Court’s attention, the first being that the Mother claimed that X returned complaining of being physically kicked by his Father, dragged on the ground or otherwise physically mistreated. Notwithstanding those concerns, in terms of these proceedings, I find that there is no unacceptable risk for X in his Father’s care in a physical sense.

7. The Father alleged that X is physically disciplined by the Mother and the Mr B and exposed to family violence. In these proceedings, I find that it is likely that X has been exposed to family violence in the Mother’s household and that he is at unacceptable risk of harm in the Mother’s household, particularly when Mr B is present.  It is also likely that X is subjected to corporal punishment in that he disclosed that his Mother and Mr B smack him and that his Mother hurts him on occasions. X made no such similar claims with respect to his Father.

8. Dr C referred to the continuum of complaints that had been made to the Department to which I have referred and the substantiation of family violence within the home. There has been departmental substantiation of physical discipline within the sibship, including X, by the Mother and Mr B. There have been numerous Intervention Orders against Mr B over the years, effectively preventing him from living in the home for periods. Dr C said that the narrative provided by the Father was “cogent and internally consistent”, whereas the Mother’s account was “meandering, lacking in detail, unaccompanied by ancillary facts, and entirely unpersuasive”. 

9. I observe that, in terms of the way the Mother has presented and all that we know about family violence, that the Mother herself presents as somebody who has been the victim of family violence.

10. Dr C also noted that there was nothing about X’s own account that would suggest that he was coached or otherwise disingenuous. Dr C said at paragraph 51: -

    … it is difficult to offer an informed view about whether there is an unacceptable risk to this boy's care with his mother and stepfather. That he feels uncomfortable about aspects of their discipline, and describes getting "hurt" by his mother, is grounds enough for concern. That the statutory child protection body has substantiated abuse is significant and would move the situation far closer to the unacceptable risk threshold. Based on the factual history of this case alone (i.e., DHHS involvement, notifications by community organisations, interventions orders, the applicant mother's own account during previous assessments), it is my view that there is some degree of risk to this boy's physical and psychological well-being in the care of his mother. I am, regrettably, unable to quantify this risk on a continuum, mainly due to the conflicting accounts and lingering ambiguity about some disputed points of fact. I have also not had the benefit of meeting Mr B as part of the current assessment, despite him being urged to attend by this Honourable Court.

11. Dr C had formed the view in his second report that:-

    … X is starting to identify himself as different from his siblings. His sense of identity is rapidly forming. In the years ahead he will further individuate. I suspect too that his siblings may have provoked him about this, especially Y, whom I note has been diagnosed with various behavioural disorders. X himself reports ongoing unrest with his siblings.

12. Dr C was also concerned, as I am, that there might be differential treatment by his non-biological parent, Mr B. He said as follows:-

    … There is also the inescapable reality that X is the physical manifestation of an extra-relational affair by Ms Pendley. His mere presence may engender feelings of resentment in Mr B - an issue compounded within a man whom is known for menacing, aggressive, dysregulated behaviour.

13. Ultimately, when considering all of the factors relevant to this case, Dr C had formed the opinion that a significant change is required for X. He said:-

    It is my view that he should come to reside primarily in the care of his father. That the extant parenting arrangements made in 2013 should be reversed. I have not arrived at this view lightly, and understand that there would be a significant impact of such a change on this boy…

14. Finally, in terms of risk of physical harm, I propose briefly to refer to the Victoria Police records that were subpoenaed and have been tendered in the proceedings. The police records are in relation to Mr B. The records contained several reports in relation to family violence between Mr B and the Mother, which are serious.  However, I propose only to recite a particularly concerning incident as highlighted by Counsel for the Father. in the Leap Report dated 2008, well prior to X’s birth, It is recorded that:-

    The defendant and the AFM are engaged and have been living together for approximately two years.  A week ago, the AFM found out she was pregnant and the defendant does not want the AFM to have the baby.  Over the past week, the pair have had verbal arguments in relation to this.  At approximately 2330 hours tonight, the AFM and the defendant were having another argument in relation to the AFM having the baby and the defendant has stated, “If you don’t get rid of the baby, I will kill it.”  During the argument, the defendant’s dog has been present and jumping around and carrying on.  The defendant went to strike to dog and the AFM has said, “Don’t with the dog.”  The defendant has immediately swung around and, with his right foot, kicked the AFM once hard in the stomach.  The defendant has then said to her, “If you tell anyone or contact anyone, I will get the hit man to kill you.  I know exactly where he lives in Suburb K.”

    It is of concern given that what is occurring in the Mother’s home has been occurring for such a considerable period of time:

15. Dr C was able to view the most recent section 69ZW response provided by the Department and also the police records to which I have just referred. During cross-examination, Dr C firmed up on his view of the risk and the assessment of risk for X in the Father’s home. Dr C was of the view that X’s residence should be changed and “like a bandaid” he should be placed in the Father’s care. He was of the view that X was at serious risk of physical harm and I formed the impression from his evidence that he was very concerned that X could be severely physically harmed in the Mother’s household.

16. This becomes more pertinent when considering what the appropriate care arrangements for X should be moving forward. It is on that basis and for the reasons that I have set out, particularly my concern that this child is vilified in his Mother’s household when Mr B is present, that for the time being at least, X’s welfare requires that he only spend supervised time with his Mother and his siblings and in the complete absence of Mr B.

17. It is unfortunate that Mr B may perceive this decision as vilifying to him. However, in circumstances where he does not present himself for assessment and does not appear to engage as a supportive partner to the Mother, it is very difficult to make an assessment other than his presence in the home presents a significant risk. That risk is not only to X but also to the Mother, and also has the potential to expose X to physical, psychological and emotional harm.

18. Dr C is a professional witness. His evidence was very persuasive and I place significant weight on it. His professional history is such that he has dealt with high-risk families similar to this family. When Dr C said that he believes that X is at risk, I regard his evidence as compelling and persuasive.

19. I have set out a considerable narrative in this case, to set out why the change of residence is necessary and also why I have taken such a protective view in terms of the ongoing time that X should spend with his Mother. 

20. A further issue is parental responsibility. Sole parental responsibility to the Father will represent a change with respect to the current parenting arrangements. 

21. Section 61DA of the Act 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.

22. Parental responsibility in relation to children means all duties, powers, responsibilities and authority which parents have in relation to children by law. They include things such as a child’s education, religious and cultural upbringing, health, a child’s name change and changes to a child’s living arrangements that make it significantly more difficult for them to spend time with a parent. This presumption does not provide a starting point about the amount of time or communication a child is to have with their parents.

23. When two or more people share parental responsibility, equally or in relation to any major long-term decision, they are required to make that decision jointly.  Therefore, the concept of shared parental responsibility carries with it the requirement to consult with the other parent in relation to the decision and to make a genuine effort to come to a joint decision. Necessarily, this means that some consultation and some discussion between the parties is required regarding major long-term decisions for which parental responsibility is shared. 

24. The presumption that it is in a child’s best interest to have their parents have equal shared parental responsibility does not apply or is rebutted if a Court reasonably believes that a parent of a child, or a person who lives with a parent of the child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family. I am satisfied that, there has been family violence within X’s household. Therefore, the presumption that equal shared parental responsibility should apply is rebutted. 

25. Furthermore, I am satisfied that it would be unreasonable and untenable to expect X's to consult with the Mother after X’s change of residence. Therefore, I am satisfied that it is not in X’s best interest that his parents continue to have equal shared parental responsibility for him and an order for sole parental responsibility to the Father will be made. However, there will be some various notification clauses with respect to health and the like included.

26. I turn now to the legislative pathway which assists in the ultimate outcome of the proceedings. The best interests of X is paramount. In determining X’s best interests, there are two primary matters or considerations and several additional matters or considerations that I must take into account. The primary considerations are set out in Section 60CC(2) of the Act and accordingly I consider the benefit to X in having a meaningful relationship with each of his parents and the need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I am directed within the Act to, and do give, greater weight to that second consideration, namely, the protection consideration.

27. The tension between those two issues in this case is palpable.  I am very cognisant that the orders that I propose to make, particularly in terms of a supervised time order between X and his Mother, is a significant reduction in the meaningful relationship that he currently enjoys with her at the moment.  However, the predominant factor must be the protection of X from harm and, as I have found, he has been subjected to abuse, neglect, and exposure to significant family violence. Further, he has probably been exposed to physical abuse upon himself and upon his siblings and, in my view, he will continue to be harmed by those experiences if there is not a change in his circumstances. X needs to be protected from future harm. 

28. The protection from harm applies equally to a spend time with arrangement as it does to a live with arrangement. I cannot see how it would even be possible for X to simply negotiate his two parents’ homes in the way that was initially proposed by the Father and the Independent Children's Lawyer, and to do so would be tantamount to cutting him loose with no protection and would expose him to family violence in the same way as he is now. Although it was not the initial proposal of either the Father or the Independent Children's Lawyer, they concur with Dr C’s point of view at the end of the proceedings. I will not expose X to that risk at this stage.

29. The primary considerations are significantly informative in this case. However, I have had regard to the additional considerations as they are set out in section 60CC(3) of the Act. Dr C said that X’s wishes should not be a significant factor and I do not give significant weight to X’s expressed views, even in circumstances where they are preferable to his Father’s home. I have been through in detail the nature of X’s relationship with each of his parents and other persons. I propose in this case, at least at this stage, to exclude Mr B from his life in a complete sense as I do not regard his presence as being conducive to promoting X’s best interests. There can be no criticism levelled at either of the parties for their level of participation in X’s life. I am unaware whether there were any maintenance or child support issues, although such issues could not be informative in this case.

30. I have dealt in detail with my concern about the wholesale changes to X’s current circumstances and no doubt there will be some negative consequences of this. I propose that X meet with Dr C, with the Independent Children's Lawyer present this afternoon, so that the orders that I have proposed can be explained to him in a way that is developmentally sensitive and hopefully in a way that ensures that he has a smooth transition into his Father’s care in an emotional and psychological sense.  I am certainly not suggesting that is going to be the panacea for all of the changes that he experiences. However, I would hope that it at least is a soft landing for him in the Father’s care.

31. There are also going to be some other wholesale changes for X. The parties live approximately 80 kilometres apart. X will have a change of school almost immediately. I assume that will occur at some stage this week and there will be all of these various changes for him. This becomes concerning because I have asked the Independent Children's Lawyer to contact X’s school and, notwithstanding what is going on in his home, he appears to be doing very well at school. The Independent Children’s Lawyer said that X is enjoying his schooling, he seems to have friends and that suggests that his school was a very safe place for him and something that he enjoyed. No doubt he will keenly feel the loss of his school friends and the like in his life.  However, I am satisfied that the Father will do everything he can to maintain those relationships, if possible.

32. I have dealt with the distance issue and the practical difficulty of the time that I propose. The paternal grandmother has offered her time to supervise the Mother’s time with X in a public place, which I propose to order on a fortnightly basis or at such other times as may be agreed. I have dealt with what I regard as the Father’s capacity to care for X which is superior to the Mother’s position and the Mother’s relative incapacity to care for him.

33. I have otherwise had regard to all of the further section 60CC(3) factors. If I have not referred to a particular factor, it does not follow that I have not had regard to it.

34. Perhaps lastly and in terms of particular reference, I am not satisfied that the orders that I make are the least likely to lead to further proceedings. It is likely that there will be further proceedings between the parties. At the very least, if the Mother engages to reinstate a better meaningful relationship with X than that which she will enjoy pursuant to these orders.  However, I am satisfied that, notwithstanding that, it is appropriate to make the orders that I propose to make.

35. I am satisfied that the orders that I will now make are in X’s best interests.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 14 June 2019