Penna & Saunders
[2023] FedCFamC1F 356
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Penna & Saunders [2023] FedCFamC1F 356
File number(s): MLC 8300 of 2014 Judgment of: WILLIAMS J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW — PARENTING —Failure by Applicant to engage in the trial — Where the matter proceeded on an undefended basis — Concerns about the parties mental health — Where the father poses an unacceptable risk — Where there are allegations of sexual abuse — Where the child has complex care needs — Where the mother seeks orders for sole parental responsibility — Consideration of whether the child should spend time with the father — Orders made in accordance with the joint proposal of the mother and Independent Children’s Lawyer - Orders made for the mother to have sole parental responsibility and for the child to live with the mother Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61DA, 65DAA.
Cases cited: Banks and Banks [2015] FamCAFC 36
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 8 May 2023 Place: Melbourne Solicitor for the Applicant: No Appearance Counsel for the Respondent: Ms Clark Solicitor for the Respondent: Romer Maud Family Lawyers Counsel for the Independent Children's Lawyer: Mr Leeton Solicitor for the Independent Children's Lawyer: Heinz Law ORDERS
MLC 8300 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PENNA
Applicant
AND: MS SAUNDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child, X, born 2010.
2.X live with the mother.
3.X spend no time with the father save that if X wishes to spend time with the father, the mother will facilitate X spending time with the father, as follows:
(a)on up to one occasion each month and for no more than two hours on any one occasion;
(b)subject to all time between X and the father being professionally supervised;
(c)any support worker/s nominated by the mother will attend supervised time to support X;
(d)if the father proposes private professional supervision, all costs of and incidental to such supervision are to be met by the father.
4.The father may receive from X’s school copies of all newsletters, school reports, photo request forms, or similar information normally provided to parents and this order acts as an authority to do so, at his own expense.
5.The father may send cards, gifts and letters to X at his home address and the mother be at liberty to inspect any cards, gifts and letters prior to providing them to X.
6.The mother do all things to ensure that the child continue to engage with his psychologist as recommended and follow all reasonable recommendations of the psychologist.
7.The mother continue to engage with her support services as recommended and follow all reasonable recommendations.
8.The mother’s lawyer may provide the mother with a copy of the Magellan Report dated 19 August 2022 which the mother may retain and provide to the child’s treating professionals and allied health workers.
AND THE COURT FURTHER ORDERS THAT
9.The Independent Children’s Lawyer forthwith serve on the father via his usual email address, a sealed copy of orders made on 8 May 2023 and a copy of these reasons.
10.Upon compliance with order 9 hereof, the order appointing the Independent Children’s Lawyer be discharged.
11.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Penna & Saunders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
The applicant is the father and the respondent is the mother of the child, X born 2010, who is now almost 13 years old.
On 16 December 2020 the father filed an Initiating Application in the Federal Circuit Court seeking to spend time with the child. On 10 February 2021, orders were made transferring the proceeding to this Court because the allegations of sexual abuse raised by the mother warranted referral to the Magellan Registrar for consideration for inclusion in the Magellan protocol due to the complexity of the allegations. The matter was assessed as complex because of the child’s numerous conditions and the allegations of substance, sexual, psychological and emotional abuse in addition to the inextricable conflict between the parents.
The matter was initially listed for trial in November 2022, however it was unable to proceed and was thereafter listed for trial commencing on 8 May 2023.
On 8 May 2023 the father did not appear at the trial. Both counsel for the mother and counsel for the Independent Children’s Lawyer sought that the matter proceed on an undefended basis and the court make final parenting orders pertaining to the child.
On the date the matter was listed for trial, after hearing submissions from counsel for the father and counsel for the Independent Children’s Lawyer, orders were made as set out at the commencement of these reasons. These are my reasons for those orders.
SHOULD THE MATTER PROCEED UNDEFENDED
The father has not filed any documents in the proceeding since he filed a Summary of Argument on 7 March 2022. Prior to that, he filed an Outline of Case Document on 12 October 2021, Application for Final Orders on 24 February 2021 and an affidavit on 16 December 2020. He also participated in the Family Report by attending an appointment on 22 July 2022.
On 3 March 2022 the father’s then lawyer appeared on his behalf at a case management hearing before me. On that day, the matter was fixed for a three-day hearing commencing on 16 November 2022 and an order was made that s 102 NA(2) of the Family Law Act 1975 (Cth) would apply to any cross examination in the proceedings.
On 15 November 2022 an order was made in chambers to vacate the trial listed on 16 November 2022 and adjourning the matter for mention on 24 November 2022.
On 24 November 2022 the father appeared on his own behalf. At that time he had not arranged representation pursuant to the s 102NA(2) order (made on 9 March 2022). A further order was made pursuant to s 102NA(2) and the commencement of the trial was adjourned to 8 May 2023. The father was advised that he should apply to the relevant Legal Aid scheme to obtain a lawyer to act on his behalf at the trial, as if he did not do so he would not be able to cross-examine the mother.
On 2 May 2023 the Independent Children’s Lawyer forwarded a letter to my associate setting out her attempts to contact the father. This included:
(1)a letter to the father on 12 April 2023 seeking a response about whether he had secured legal representation and whether he intended to file further documents.
(2)a telephone conversation on 21 April 2023 in which the father advised the Independent Children’s Lawyer that he did not have a solicitor and would not be attending the final hearing.
(3)a telephone conversation on 28 April 2023 where the father again advised the Independent Children’s Lawyer that he did not have legal representation, however, indicated he would attend the first day of the hearing on 8 May 2023.
Because the father did not attend court on the morning of 8 May 2023 he was called at 10:05am and again at 11:05am, however, there was no response to the call.
I am satisfied the father was aware that a final trial of his application was fixed for determination on 8 May 2023 and that he decided not to participate in the trial. The father could not have any doubt that he was able to obtain legal representation pursuant to the s 102NA Legal Aid scheme, however, he failed to avail himself of that legal representation.
The current litigation pertaining to the child has been ongoing since December 2020 and is the third parenting application to the court. It is in the interests of all parties, in particular the child, that a final determination into his arrangements with his father is made without further delay, particularly in circumstances where the father has declined to file material in support of his own application and there have been problems with previous orders providing for the father to spend time with the child.
The orders made were substantially in terms of the recommendations of the family report, and the orders sought in the mother’s Response filed 9 February 2021 and the proposed orders set out in in her Outline of Case filed 5 May 2023.
I am satisfied the father had adequate notice of the orders sought by the mother and it was appropriate to proceed in the absence of the father.
ISSUES IN DISPUTE
The following issues were the subject of dispute between the parents:
(a)the allocation of parental responsibility for the child;
(b)does the father pose an unacceptable risk to the child;
(c)the time, if any, the child should spend with the father.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The mother is aged 52 and the father is aged 47. The parties commenced cohabitation in 2008 and separated in 2011. The child was born 2010.
On 15 September 2015 final parenting orders for the child were made by consent. The orders provide for the parents to have equal shared parental responsibility, the child to live with the mother and to spend time with the father each alternate weekend and after school.
The parties did not strictly comply with the orders and during 2019 the child refused to spend overnight time with the father for approximately nine months. Between December 2019 and November 2021, the child did not spend any time with the father.
Subsequent to the final parenting orders, according to the mother, the child made a number of disclosures of sexual abuse perpetrated by the father. In early 2018 she heard the child talking aloud to himself when he is alleged to have said “he said he will give me vbucks if I sucked his dick”. The mother spoke to the child psychologist, rang the F Centre and Child Protection in addition to advising the father of the disclosure.
In late 2019 the child allegedly said to the mother “I sucked his dick” whilst gesturing towards his father’s house. The mother raised the disclosure with the father the next day and he denied any such abuse. The mother also rang Child Protection who contacted Sexual Offences and Child Abuse (SOCIT) and made an appointment with the child’s paediatrician to tell her about the child’s disclosure.
In January 2020 the child spoke to SOCIT but did not make any disclosures. A short time later the mother obtained an interim intervention order against the father, naming the child as a protected person, which also suspended the final parenting orders of September 2015.
In January 2020 the child attended a VARE interview with SOCIT. The mother was advised by SOCIT that they had conducted an investigation into the child’s disclosures but they would not be pursuing any charges against the father.
In early 2020 the mother obtained a final intervention order against the father with the child named as the protected person. The order expired in early 2021.
On 11 February 2020 the mother initiated proceedings in the Federal Circuit Court to vary the final parenting orders made in September 2015. This application was struck out by a Registrar on 5 May 2020.
Following this, the father filed an Initiating Application on 16 December 2020, orders were made on 10 February 2021 by a Registrar for the appointment of an Independent Children’s Lawyer. The matter was then transferred to the Family Court and referred to the Magellan Registrar for inclusion in the Magellan protocol. On 14 April 2021, the final orders made in September 2015 were suspended by the Court.
On 14 October 2021 interim orders were made by consent for the child to spend time with the father each Sunday between 12.00pm and 4.00pm and by FaceTime at 6.00pm each Tuesday and Thursday, with such time to be supervised by the mother.
The child spent intermittent time with his father pursuant to those orders and in July 2022 commenced spending supervised time with his father at E Contact Service.
The family attended upon a Family Consultant in July 2022 during the process of completion of the Family Report. The Family Report is dated 19 August 2022.
As referred to earlier in these reasons, the trial was originally scheduled to commence in November 2022, but was adjourned to commence on 8 May 2023.
THE PROPOSALS OF THE PARTIES
The father’s proposal
As the father did not file any documents subsequent to his Outline of Case filed 12 October 2021, it is difficult to ascertain his current proposal. In that document he sought orders for the child to live with the mother and to spend time with him each Saturday between 12.00pm and 4.00pm and otherwise as agreed between the parties, with his time to be supervised by the mother. He also sought orders for the child to communicate electronically with the father.
At the Family Report interviews in July 2022 the father’s proposal was for the parents to retain equal shared parental responsibility, the child to remain living with the mother and to spend time with him at least two or three occasions each week, inclusive of one or two overnights each week and any additional time the child wished.
The mother and Independent Children’s Lawyer’s proposal
Both the mother and Independent Children’s Lawyer submitted a joint Minute of Proposed Orders during the hearing. Orders were ultimately made in accordance with that proposal and include that the mother have sole parental responsibility for the child, the child live with her, the child spend no time with the father, except if he wishes to spend time with the father and if so up to one occasion each month for no more than two hours, with the time to be professionally supervised and with a support worker nominated by the mother to attend.
Documents relied upon by the parties
It is not possible to ascertain which documents the father sought to rely upon as he did not attend the hearing and the only affidavit filed by him was sworn in December 2020.
The mother relied on the following documents:
(a)Her affidavit filed 3 May 2023;
(b)Notice of Risk filed 9 February 2021;
(c)Response to Initiating Application filed 9 February 2021;
(d)Magellan Report dated 19 August 2022;
(e)Magellan Report dated 13 April 2021;
(f)Psychiatric assessments of the parents by Dr B filed 14 October 2021;
(g)Report of Dr C (mother’s psychologist) dated 30 April 2023.
The Independent Children’s Lawyer relied on the following documents:
(a)Response to Notice of Risk prepared by DFFH filed 6 April 2021
(b)Magellan Report dated 19 August 2022;
(c)Magellan Report dated 13 April 2021;
(d)Psychiatric assessments of the parents by Dr B filed 14 October 2021;
(e)Family Report prepared by Ms D dated 19 August 2022.
Evidence
The standard of proof in this case, as to what did or did not happen in the past, is the balance of probabilities (Evidence Act 1995 (Cth) s 140).This standard of proof does not apply when hypothesising about future possibilities: see Isles & Nelissen [2022] FedCFamC1A 97.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
THE LEGAL PRINCIPLES APPLICABLE TO PARENTING DISPUTES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks and Banks [2015] FamCAFC 36. The relevant sections, which are referred to in these reasons are s 60CC(3)(a),(b),(c)(f)(g) and (i).
As far as parental responsibility is concerned, s 61DA 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility and the father seeks an order that the parents have equal shared parental responsibility.
How the Court approaches allegations of unacceptable risk
The High Court of Australia in M v M (1988) 166 CLR 69 (“M v M”) at [76] said notwithstanding allegations of sexual abuse, the Court’s obligation is to determine what orders are ultimately in the children’s best interests. The Family Court is not required to resolve in a definitive way the disputed allegations of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence, although in appropriate cases the Court can and should make such findings.
Recently, in Isles & Nelissen [2022] FedCFamC1A 97, the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) at [50], agreed with and adopted the commentary of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”).
Allegations of unacceptable risk
In his affidavit filed in December 2020 the father expressed his concerns the mother has sought to use baseless allegations against him as a means to withhold and suspend his time with the child. He asserts the mother has a long history of manipulation and has previously sought to withhold the child and interrupted the meaningful relationship they share. At the Family Report assessment, during a discussion about parental responsibility, the father said the mother was seeking to maximise her parental role whilst minimising his abilities.
Because the father is seeking orders that the child should remain living with the mother and he is seeking to only spend time with the child, I can infer the father does not allege the mother poses an unacceptable risk.
In his psychiatric assessment of the mother, Dr B diagnosed her with several mental disorders and a drug induced disorder.
In the DFFH assessment report dated 13 April 2021, the mother’s capacity was assessed as being able to demonstrate an ability to meet the child’s high needs and that she is engaging with appropriate support networks who have not raised any concerns about her parenting. The mother also displays a high level of insight into her own illness and continues to engage with supports in an effort to improve her well-being.
Paragraph 104 of the Magellan Report states:
[Ms Saunders] has displayed the capacity to identify her own vulnerabilities and seek and accept professional assistance.
The mother alleged the father posed an unacceptable risk to the child for a number of reasons. These include:
(a)The sexual abuse allegations;
(b)The child’s complex health issues and the father’s inability to manage the child;
(c)The father’s mental health and substance abuse issues and his inability to manage these issues.
I will now turn to the allegations of sexual abuse.
According to the mother, in 2013 she had concerns the child may have been sexually abused and in 2015 she raised the issue in the then court proceedings. The mother seemed to be of the view that the father’s nephew, who was then aged approximately 10 years old, was the perpetrator of the alleged abuse. The final parenting orders made in September 2015 included a restraint on the father permitting the child to come into contact with this nephew, whom the mother suspected was a perpetrator of sexual abuse.
Subsequent to the final parenting orders, according to the mother, the child has made a number of disclosures of sexual abuse perpetrated by the father. In early 2018 she heard the child talking aloud to himself when he is alleged to have said “he said he will give me vbucks if I sucked his dick”. The mother spoke to the child psychologist, rang F Centre and child protection and advised the father.
In late 2019 the child allegedly said to her “I sucked his dick” whilst gesturing towards his father’s house. The mother raised the disclosure with the father the next day and he denied any such abuse. The mother also rang child protection who contacted SOCIT and made an appointment with the child’s paediatrician to tell her about the child’s disclosure.
In early 2020 the child spoke to SOCIT but did not make any disclosures. The mother obtained an interim intervention order against the father naming the child as a protected person in early 2020, which also suspended the final parenting orders of September 2015.
In January 2020 the child attended SOCIT for a VARE interview. The mother was advised by SOCIT that they had conducted an investigation into the child’s disclosures but they would not be pursuing any charges against the father.
The child retracted the initial allegations, but as identified by the Magellan Report dated 19 August 2022, the child subsequently advised the interviewer that his father tried to make me suck his dick. According to the mother, she considers the child was lying about his retraction of disclosures and reiterated the disclosure made in February 2022.
Apart from the father’s denials of any sexual abuse perpetrated by him and his allegations against the mother, there is no ever evidence to assist in making a relevant finding and I am unable to do so in the absence of cross examination of the parties.
I now turn to the child’s complex health issues and the father’s inability to manage same. The child has been diagnosed with numerous medical conditions. These include autism spectrum disorder, attention deficit hyperactive disorder (ADHD), anxiety, and complex post-traumatic stress disorder (PTSD). There is no doubt the child’s behaviour is extremely difficult and exhausting to manage. He is currently prescribed a range of medications.
The child has a complex range of neurodevelopmental difficulties which manifests in him having problems regulating his emotions, impulse control difficulties, social skill deficits and ability to learn.
The child receives NDIS funding and is supported by a range of professionals including a paediatrician and psychologist. There has been a history of school suspensions including an occasion in 2021 when the child threatened his principle by chasing him with heavy objects which resulted in the school going into lockdown and police attendance. He currently attends school each Monday, Wednesday and Friday from 9.00am to 10:30am.
The mother has continually managed the child’s complex health issues and health appointments. The father has not taken an active role in the child’s management or medical appointments and it is unlikely he would have the capacity or knowledge of the child’s special needs to actively assist the mother or indeed make medical decisions about the child.
The mother’s unchallenged evidence in her affidavit is that the father has limited insight into the child’s needs and would struggle to safely manage the childcare independently. He was unable to articulate to Child Protection any parenting strategies to cope with the child and appears to have minimal insight into teaching a child with complex diagnosis and needs.
The unchallenged evidence is that during the period October 2021 and February 2022 when the child was spending time with the father, the father attended the mothers home a couple of times a week when she supervised the time. The child was frequently angry and would not engage with the father and on one occasion after spending time with his father the mother discovered the child trying to harm himself. The mother had concerns that during one of the visits the father appeared to be drug affected and on another occasion she suspended the time due to the father being drug affected.
In June 2022 the father purchased a bow and arrow for the child and showed the child a home‑made weapon made out of a mop handle and fishing hooks, prior to demonstrating how to use the weapon. Thereafter the mother declined to supervise time between the child and the father.
I will now address the father’s own complex health issues.
Dr B conducted a psychiatric assessment of the father and provided a report on 27 August 2021. He diagnosed the father with social and generalised anxiety disorder, drug induced disorders and a personality disorder.
The father has a long psychiatric and forensic history. Dr B concluded the father’s main problem related to his ongoing use of an illegal substance, and if the father were to remain abstinent, it is possible his psychiatric symptoms would resolve and it would not be necessary for the father to continue his current cocktail of medication. There was no evidence before the Court that the father has addressed these health issues.
At paragraph 23 of the Family Report the Family Consultant states:
Following interviews with both parties and attempted engagement with [X], child protection assist that [Mr Penna] had limited insight into [X’s] needs and would struggle to safely manage [X’s] care independently. It was recommended that any future spend time between [X] and [Mr Penna] be supervised, given the circumstances in which spend time ceased and [Mr Penna] as limited understanding of [X’s] needs.
In July 2022 the Family Consultant interviewed both parents and the child for a Family Report. In relation to her interview with the father, the Family Consultant said:
53. Whilst [Mr Penna] engaged with the writer, he displayed a tendency to initiate tangential discussions and provide anecdotes of varying relevance. [Mr Penna’s] dialogue was peppered with profanities and he frequently used derogative terms in reference to others. [Mr Penna] also presented with a volatility that was intimidating and hindered exploration of challenging topics, such as the allegations of abuse and parenting deficits recorded in the filed material.
55. …..[Mr Penna] displayed limited knowledge of [X’s] treating professionals and treatment plans, advising that [Ms Saunders] primarily facilitated these aspects of [X’s] care.
59. Discussion of the sexual abuse allegations was not possible, as [Mr Penna] did not wish to “go to those dark corners.” He stated that if the writer intended to discuss these matters, she would be calling [Mr Penna] “an offender,” or [X] “a liar.” Notwithstanding this resistance, [Mr Penna] expressed his view that if the allegations had any truth, he would be “found dead with a self-inflicted bullet wound to the head.” He expressed strong views against individuals who sexually offend against children, alluding to his own experiences as a survivor of childhood sexual abuse in state care.
63. …When the writer attempted to explore the concerns for [Mr Penna’s] parenting capacity in the filed material, he stated that “there is always some shit” being said in a heightened manner. He acknowledged that he could benefit from some education, however declared it an injustice that he not be permitted to have [X] in his life. He proceeded to recount an incident of being criticised when he previously cared for [X] whilst [Ms Saunders] was hospitalised for her mental health. As he detailed this incident, [Mr Penna] hit himself in the head with a closed fist and raised his voice, appearing angered.
64. [Mr Penna] shared that he had “half a dozen” mental health diagnoses, including anxiety, […], and a “disorderly” personality. He advised that his parenting capacity was not impacted however, as he managed his mental health via abstinence from drugs and alcohol. [Mr Penna] further confirmed general compliance with prescribed medication; so long as he does not experience side effects. He advised that [Ms Saunders] also has unspecified mental health problems and insecurities, demonstrated by her tendency to co-sleep with [X] and the emergence of the sexual abuse allegations.
65. [Mr Penna] advised that he ceased using [an illegal substance] three to four weeks ago […]. [Mr Penna] could not recall if he had ever used […] or administered substances intravenously. He advised that he had provided a positive drug test […] after consuming discarded [medication] prescribed to [X].
The father met with Child Protection on 9 March 2021 and was unable to clearly articulate the child’s diagnosis and how his complex health issues impacted his day-to-day functioning. Child Protection assessed the father had limited insight into the child’s needs and he would struggle to safely manage the child’s care independently.
In the report dated early 2021, DFFH assessed the father as having limited insight into the child’s needs, unable to articulate any parenting strategies and identified he would also struggle to safely manage the child’s care independently. He was also assessed as having minimal insight into his own diagnosis and the impact on his own life.
In conclusion, I am satisfied that collectively the allegations of risk levelled by the mother that the father poses an unacceptable risk to the child, are substantiated. In reaching my conclusion I rely on the professional opinions of Dr B and the Family Consultant, whose uncontradicted evidence I unconditionally accept, and upon the reports of the relevant child protection authorities.
Are there any steps be taken to ameliorate the risk the mother poses to the child?
The child has not spent any time with the child since the conclusion of supervised time at E Contact Service in July 2022.
According to the mother’s uncontradicted evidence, the child requested the first two visits at E Contact Service conclude after 45 minutes. She also deposes to the child refusing to attend E Contact Service on 21 and 28 July 2022, the visit scheduled for 4 August 2022 being cancelled because of staff shortages, the scheduled visit on 11 August 2022 not occurring because the child did not want to see his father and the visits on 18 August 20 and 25 August 2022 being cancelled by the father. On 1 September 2022 the father did not attend for the scheduled visit and on 8 September 2022 the child attended but the father did not. On 15 September 2022 the mother cancelled the visit as the child was unwell and a medical certificate was provided.
In the Family Report the Family Consultant at paragraph 111 states
.. Professional supervision is recommended if the Court establishes an unacceptable risk of sexual harm. In the event that an unacceptable risk of sexual harm was not established by the Court, a progression of spend time beyond current arrangements remains difficult to consider.
At paragraph 113 and 114 the Family Consultant states:
113. During the course of this assessment, [Mr Penna] was observed to speak with profanities, used derogative terms, and appear volatile and easily angered. These dynamics evoked intimidation. These observations may be reflective of the relevance of the risk issues pertaining to parental mental health and/or substance abuse; and convey the aforementioned impacts. These observations may also indicate parenting risk; [X] is a child assessed as having severe behavioural disturbance and oppositional behaviours. [Mr Penna’s] abilities to remain emotionally regulated and parent safely may be overwhelmed by displays of challenging or oppositional behaviour by [X]; or further allegations of sexual harm.
114. The impact of [X’s] developmental difficulties also limit the projection of the evolution of his capacity to self-protect as he becomes older. Typically, children’s increasing age can be assessed as a strength, given the increasing ability to make disclosures, seek help and remove themselves from unsafe situations. [X’s] capacity to assess his environment, read and respond to social cues, communicate with, and remove himself from harm is likely to remain limited, given his development.
Relying on the comments of the Family Report Consultant it is difficult to contemplate any steps other than professional supervision would be appropriate to ameliorate any proposed risk. The Family Consultant identifies the father’s difficulties with emotional regulation which may be exacerbated by the child’s challenging behaviour, and the child’s inability to self-protect because of his complex presentation.
Should there be any time between the child and his father?
Having determined that the time between the child and the father should be supervised, I will now consider whether the child should spend supervised time with the father, and if so, how frequently.
At paragraph 116 of the Family Report, the Family Consultant refers to the necessity to consider the child’s views of spending time with his father.
The child has advised both the Family Consultant and the staff at E Contact Service that he currently does not want to communicate or spend time with his father.
The Family Consultant identifies the child’s worries about his father’s weapons and his vague worries about the father killing him. She also notes that the child refused to see his father at the Family Report interviews.
According to the mother, and I accept, the child’s behaviour is extremely difficult to manage and if he were forced to spend time with his father, his behaviour would regress because he would be unable to understand why he would be being forced to do something he does not want to do.
The Family Consultant identifies the child’s view that time with his father should be stopped and that requiring him to spend time with the father is also likely to be increasingly difficult as the child becomes older, particularly in the context of his history of defiant behaviours. Whilst acknowledging the complexity of feelings associated with spending time with his father, the Family Consultant considers the child may have a limited capacity to accommodate frequent time with his father. That may be inferred from his resistance to spending time with his father in the past, early termination of supervised time and the child’s refusal to participate in observation sessions with his father. She concludes it may be beneficial for the child to be included in the choice of day he spends with his father as that would empower the child and give him a sense of control over his relationship with his father. That may provide the child with a healthier mechanism to manage and express his feelings towards his father and the relationship.
I accept the evidence of the Family Consultant and consider the orders made enable the child to express a wish to spend time with his father and if so, the time will occur on up to one occasion each month for no more than two hours, which is the frequency of time recommended by the Family Consultant.
PARENTAL RESPONSIBILITY
The mother seeks an order for sole parental responsibility for the child, and does so on the basis that it is not practicably feasible, nor in the child’s best interests for the parties to share parental responsibility.
The mother has always been the primary carer of the child and will continue to do so in the future. The father has not played any role in major decision-making for the child and appears unable to appreciate the extent of the child’s special needs and the support he requires. The mother has been solely responsible for management of the child’s medical issues and the father is unable to identify the child’s supports and treating practitioners.
The father has not levelled any criticism against the mother’s choices of medical and allied health practitioners who assists the child, and there is no evidence that he has objected to the mother’s choices for the child’s education.
Because of the father’s lack of insight into his own significant needs, as identified by both the Family Consultant and Dr B, I do not consider that the mother should be required to consult or communicate with the father about the child’s medical or educational management or any other significant issues.
Despite the mother’s own problems impacting on her capacity to care for the child, neither the Family Consultant nor Child Protection has assessed the mother as being anything other than protective and acting in the child’s best interests. The mother’s psychologist has identified the strain on her as a result of the father’s conduct an attitude.
To require the mother to start consulting the father about significant choices for the care of the child, when she has managed more than adequately in the past, would no doubt have a significant adverse impact on her mental health, and as primary carer of the child, she should not be placed in such a position.
There is sufficient evidence for me to conclude that it would not be in the best interests of the child for the parents to have equal shared parental responsibility and that the mother should have sole parental responsibility.
Because the father did not appear at the trial, I will also make an order for the Independent Children’s Lawyer to forthwith serve on the father a sealed copy of my orders and a copy of these reasons. Service may be effected via the father’s usual email address.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 11 May 2023
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