Radnitz & Johnston
[2022] FedCFamC1F 942
Federal Circuit and Family Court of Australia
(DIVISION 1)
Radnitz & Johnston [2022] FedCFamC1F 942
File number(s): WOC 457 of 2019 Judgment of: CAMPTON J Date of judgment: 1 December 2022 Catchwords: FAMILY LAW – PARENTING – Undefended hearing – With whom the child shall live and spend time – Parental responsibility – Best interests – Change of name – Where the father has had inconsistent involvement with the proceedings and has not spent time with the child since 2018 – Issues as to family violence and substance abuse – Orders made as sought by the mother and the Independent Children’s Lawyer – Mother to have sole parental responsibility – Child to live with mother and spend no time with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CC, 61DA, 68B, 68C
Federal Circuit and Family Court of Australia Act2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Jarrah & Fadel [2014] FamCAFC 14
Radnitz & Johnston [2021] FCCA 1139
Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 23 November 2022 Place: Sydney Solicitor for the Applicant: Mr Misfud, John Stonham & Co Solicitor for the Respondent: Ms Warda, Mills Oakley Lawyers Solicitor for the Independent Children's Lawyer: Ms Tin, Legal Aid NSW ORDERS
WOC 457 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RADNITZ
Applicant
AND: MS JOHNSTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
1 December 2022
the Court orders That:
1.All previous parenting orders in relation to X born 2017 (“X”) be discharged.
2.The Mother have sole parental responsibility for X.
3.X live with the mother.
4.X spend no time with the Father.
5.The Mother be authorised to apply to the Registrar of Births, Deaths and Marriages NSW that X (currently registered as X) be now registered as “X”.
6.Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register X’s s name in the form specified in Order 5 hereof.
7.The Mother be permitted to forward a sealed copy of these Orders to the Registrar of Birth, Deaths and Marriages NSW.
8.The Mother be permitted to take or send X from the Commonwealth of Australia.
9.For the purposes of s 11(1)(b)(i) of the Australians Passports Act 2005 (Cth), X be permitted to have an Australian passport.
10.Pursuant to s 11(4)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) the Mother be permitted to apply for and have issued to her an Australian passport for X, or renew any such passport in the absence of consent or otherwise of the Father, AND IT IS REQUESTED that the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of any such passport.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), for the personal protection of the mother and X, the father is restrained from:
(a)Being on, or within 100 metres of:
(i)the premises where the mother and X live;
(ii)X’s school;
(iii)the mother’s place of work;
(iv)any place where the mother and X may attend for the purpose of participating in co-curricular activities of X from time to time;
(b)Engaging in behaviour that constitutes family violence towards the mother or X;
(c)Posting on social media or other public forums any material that refers either directly or indirectly to the mother or child;
(d)Locating, or attempting to locate, the mother or X;
(e)Contacting the mother or X;
(f)Causing someone else to do the things specifically prohibited by Order (12)(d)-(e) herein.
12.In substitution for personal service on the father, the mother is directed to cause a copy of these orders and reasons for judgment to be served upon the current solicitors for the father, being John Stonham & Co, within seven days of these orders, and shall file an affidavit within 14 days of these orders confirming compliance with this order.
13.The Mother is permitted to provide a copy of these orders to any of X’s school, places of extracurricular activity, her employer, her local police or any other police station that she considers to be appropriate NOTING THAT s 68C of the Family Law Act 1975 (Cth) provides a power of arrest without warrant if a police officer believes on reasonable grounds that the Father has breached the injunctions at Order 11 herein.
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 Radnitz & Johnston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings as to the parenting of a five year old child, X (“X”), born 2017. X is the daughter of Mr Radnitz (“the father”) and Ms Johnston (“the mother”).
X has not spent time with the father since September 2018. That circumstance emerged in the aftermath of a serious, and potentially life-threatening, incident of family violence, in which the father attended the maternal grandparents’ home with a weapon with the stated intention of killing himself in front of the mother.
Following a long history of litigation as to X’s parenting, the following orders were made on 22 November 2022:
1.The father’s legal representative is granted leave to make an oral application to further extend the time for the father to file an amended Initiating Application in accordance with the rules and any affidavit evidence in support of that amended Initiating Application.
2.The oral application made by the father’s legal representative is refused.
3.The Amended Initiating Application of the father filed 17 June 2019 is struck out.
4.The mother and Independent Children’s Lawyer are granted leave to proceed on an undefended basis as to the determination of the relief as sought by the mother in her fourth amended Response to the Initiating Application filed 28 October 2022 today.
5.The Court notes that the father’s solicitor has advised that he does not wish to ask the mother any questions today or to make any further submissions.
6.Judgment is reserved to a date to be advised.
These are the reasons for judgment reserved on that date.
Striking out the father’s Initiating Application and proceeding on an undefended basis
Notwithstanding that the father commenced these proceedings, his involvement in them has been inconsistent.
The father was arrested in late 2018 and charged in relation to a serious, life-threatening family violence event identified in these reasons. He was incarcerated and not granted bail until early 2019.
In early 2019, while on bail, the father filed an Initiating Application seeking orders as to X’s parenting in what was then the Federal Circuit Court. In in mid-019, he pled guilty to the charges arising from his arrest in late 2018 and was sentenced in the Local Court at Suburb C to two years imprisonment .
On 17 June 2019 he filed an Amended Initiating Application. The mother filed her Response to that application on 16 July 2019.
On 30 January 2020 consent orders were made:
(a)Appointing Ms B as the single expert witness to conduct a family report; and
(b)Requiring the father to commence a drug testing regime, including that he undergo chain of custody urinalysis within 24 hours of a request being made by the Independent Children’s Lawyer (“ICL”), and hair follicle testing within seven days of a request being made by the ICL.
The ICL requested the father undergo a urinalysis test on 17 February 2020. The father complied with this request, and his results were positive for prescription drugs. The ICL made four subsequent requests of the father for hair follicle (on 2 March 2020) and urinalysis testing (31 March, 6 May and 10 June 2020). The father did not submit to those requests.
In late 2020, the father was arrested by police and charged with a series of family violence offences arising from a not dissimilar serious and life-threatening incident of violence against his then-partner. He was refused bail until early 2021. On the same day as his release, he filed a Notice of Discontinuance of these proceedings.
The matter was set down for an undefended final hearing on 27 April 2021, so as to finally determine the regulation of X’s parenting. One day prior to that undefended hearing, the father made a successful application to set aside his Notice of Discontinuance, and the hearing was vacated.
The matter was then listed for an interim hearing before Judge Neville of the Federal Circuit Court on 21 May 2021. For reasons then delivered (see Radnitz & Johnston [2021] FCCA 1139), on 26 May 2021 her Honour made interim orders that X live with the mother, that the mother have sole parental responsibility for X, and that the father spend no time with X and be restrained from communicating with the mother or X, or being within 100 metres of their home, school, or places of work. Orders were also made transferring the proceedings to the Family Court (as it was then).
Again, notwithstanding his apparent re-engagement in the proceedings, the father’s involvement in them following the interim hearing on 21 May 2021 was inconsistent.
The matter was docketed to me, and was listed for case management on 26 April 2022. On that date I made orders by consent requiring the father to disclose to the mother information as to his ongoing criminal proceedings. That order was not complied with by the father until 19 September 2022.
On 19 September 2022 the matter came before me again and extensive trial directions were made and the proceedings were listed for final hearing as part of the Sydney Rolling List for three days commencing on 6 March 2023.
The father’s solicitors filed a Notice of Ceasing to Act on 25 October 2022. No Notice of Address for Service was subsequently filed by the father. The father by that time had failed to comply with the filing of documents pursuant to the trial directions made 19 September 2022. On that same date, the ICL contacted my chambers by email providing notice that the father was no longer represented in these proceedings and requesting that the matter be urgently relisted to address issues arising by reason of s 102NA of the Act.
The proceedings came before me urgently on 27 October 2022 for further case management. It was submitted by the ICL that in circumstances where the matter remained listed for final hearing in early 2023 and the father was now self-represented, the mandatory provisions of s 102NA of the Act were engaged. The father did not attend (nor did any lawyers attend on his behalf) the case management hearing on 27 October 2022. The matter was again listed for an undefended hearing in light of his non-compliance with previous orders.
On 11 November 2022, being the second scheduled undefended hearing, the father engaged new solicitors who appeared on his behalf. They were the same firm of solicitors who had appeared previously in the proceedings for the father in the Federal Circuit Court. The father was in effect given by way of further orders time to comply with the trial directions, being on notice as the ‘final chance’ to prepare his case for trial. Orders were made extending the time for the father to file an Amended Initiating Application until 15 November 2022 and for him to file his trial affidavit until 18 November 2022 (no such affidavit was filed). An order was made that he pay the mother’s costs of the listing on 11 November 2022, fixed in the sum of $7,500, by no later than 18 November 2022. Additionally, and with the consent of the father, an order was made that:
4. In the event the father fails or neglects to comply with any of these orders, then forthwith upon such failure or neglect, his Amended Initiating Application filed on 17 June 2019 is struck out and the mother, supported by the [ICL], has leave to proceed on an undefended basis as to the determination of her Fourth Amended Response to an Initiating Application filed on 28 October 2022 at 9.30am 22 November 2022.
The matter was adjourned for case management on 22 November 2022 via Microsoft Teams. By that time, the father’s compliance with the orders made on 11 November 2022 was incomplete in that:
(a)His Amended Initiating Application was filed two days late and did not comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in a number of ways, including that the father had not signed the statement of truth at Part K of the document;
(b)The father had not filed a trial affidavit, although he had provided to the mother’s solicitors and the ICL an unsigned document purporting an affidavit;
(c)The father had paid the costs order in favour of the mother.
Although the father’s solicitor attended the case management hearing electronically on
22 November 2022, the father did not. That solicitor was unable to reach the father by telephone, notwithstanding a number of attempts over the course of the hearing on that day.
The father’s solicitor was granted leave to make an oral application to further extend the time for the father to file his Amended Initiating Application and his trial affidavits. The application was opposed by the mother and the ICL.
In Jarrah & Fadel [2014] FamCAFC 14 (“Jarrah & Fadel”), the Full Court discussed the relevant considerations to a decision to adjourn child-related proceedings, and referred as a starting point to the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk Services”), where the majority said:
217.… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
The Full Court went on to observe that in child-related proceedings, the mandatory requirements of s 69ZN of the Act are superimposed on the Court’s decision making, including that such proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
The father has failed to attend at least two Court events this year and has, over the course of these proceedings, manifested a willing disregard for the orders and directions of this Court. His conduct in the proceedings, including having not complied with the ordered drug-testing regime, has undoubtedly placed stress and anxiety on the mother and X. It has caused the mother and the ICL to incur increased and unnecessary costs. Most significantly, it has left the parenting arrangements for X in a state of limbo, notwithstanding that she has not seen the father for more than four years.
Having regard to those circumstances, I find that further delay to the final determination of these proceedings would prejudice the mother, who at every stage has done what she was supposed to do in compliance with the Orders of this Court.
Therefore, guided by the principles articulated in Jarrah & Fadel, and by the mandates contained in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth), and in all of the circumstances, I am satisfied that:
(a)The oral application made by the father’s solicitor for an adjournment ought to be refused;
(b)It was proper for the father’s Amended Initiating Application filed on 17 June 2019 to be struck out; and
(c)It was proper for the matter to proceed on an undefended basis as sought by the mother and the ICL.
Findings of fact
The mother relied on her affidavit and on affidavits of the maternal grandparents, each filed on 4 November 2022 and other documents as identified her Case Outline (Exhibit B). The documents relied upon by the ICL were identified in her case outline (Exhibit C). The report of the single expert, Ms B dated 26 October 2020 (“the Family Report”) was Exhibit A.
The father’s solicitor was given the opportunity to test the evidence relied upon by the mother and the ICL at the undefended hearing on 22 November 2022. He indicated that he did not wish to ask the mother or any of her witnesses any questions, nor did he wish to make submissions. I will accept the evidence in the mothers and ICL’s case to the extent that it is not inherently improbably or contradicted by other evidence before me.
The father was born in 1983. He is currently 39 years of age. The mother was born in 1992. She is currently 30 years of age.
The father has two children from a previous relationship, who are now 19 and 17 years old. They live with their mother.
The parents commenced a relationship in or around early 2016 and separated in September 2018. The total length of their relationship was under three years.
X was born in 2017. From her birth, the mother was primarily responsible for meeting all of X’s needs. She remains the uncontested primary carer for X.
The father’s substance abuse during the relationship
The father’s drug use and associated dysregulated behaviour was documented by the mother, the maternal grandparents and the expert in the Family Report. Those observations were supported by the results of the father’s drug testing regime undertaken pursuant to orders of the Court, as will be discussed.
It was the mother’s uncontested evidence, and I find, that the father was “drug affected” throughout the parents’ relationship. His substance abuse escalated towards 2018, such that he was consuming a prohibited substance daily for extended periods of time in the home.
The father’s account of his substance use was recorded at [71]-[81] in the Family Report. Of note, the father told Ms B that:
(a)Following a period of sobriety, he began drinking again in 2017. He said that in a weekend he would drink a bottle of Jack Daniel’s liquor, comprising about 22 standard drinks, and “progress to drinking ‘whatever else’ was available.” The father’s consumption of alcohol continued in a similar pattern from 2017 until his incarceration in 2018.
(a)His consumption of a prohibited substance commenced in a social context when he was 20 years old, and escalated thereafter. At its “peak”, the father spent approximately $… on the prohibited substance per week.
(b)In addition to the prohibited substance, the father misused prescription medications.
Notwithstanding the above concessions, the father told Ms B that his alcohol and drug use had “no impact at all” on his parenting of X (at [29]). Ms B concluded, on her review of the material produced on subpoena by NSW Police and DCJ coupled with her observations of the father, that his substance use was “at a problematic level”, and that it “significantly impacted his mood, behaviour and parenting”. I so find.
I accept as the mother contends that the father’s consumption of drugs seriously and detrimentally affected his capacity to parent X, and that accordingly she did not permit the father to care for X alone. To protect herself and X from the consequences of the father’s substance use, the mother stayed for periods of time out of the family home, including with her sister and at the maternal grandparents’ home. The mother identified, and I find, that the father’s drug usage was a motivating factor for the parents’ separation.
Family violence during the relationship
I find consistent with the mother’s uncontested evidence that the relationship between the parents was characterised by coercive and controlling family violence, which at times manifested in physical aggression. She says and I find that this included verbal and sexual violence. For example:
(a)While pregnant with X, approximately two weeks before her birth, the father backed the mother up against a wall, yelling at her, before grabbing a table lamp in such a manner that caused the mother concern that he would hit her with it. That incident was interrupted by the father’s oldest daughter walking in to the room;
(b)Two days after X’s birth, the father “threatened by text [message]” that he would remove X from the mother’s care and relocate with her to Queensland;
(c)The father was often verbally abusive, including by yelling threats at her including “fuck you, leave, I don’t need you” and “I’m taking X with me” and “no one would marry you, you are nothing but a side chick”;
(d)There were several occasions throughout the relationship where the father either forced or, or coerced her into, having sex with him without her consent.
There was an incident in late 2017 when the father, under the influence of a prohibited substance, became “enraged with the mother”. He threw items of furniture owned by the parents at the fence of their property, and in response to the mother purportedly rolling her eyes at him, said while holding a butter knife “[don’t] you roll your eyes at me. I’ll cut your eyes out”.
The mother’s comments to the family report writer and her evidence contained in her affidavit, were not challenged at the undefended hearing, nor were they inherently improbably or contradicted by other evidence before me. In the circumstances I accept her version of events, and find that the father conducted himself in the way described by the mother at [39] and [40] above.
Separation
The mother made five or six attempts to separate from the father between late 2017 and late 2018. The final separation occurred on 15 September 2018, when the mother left the former family home with X and moved in with the maternal grandparents.
In the morning, a few says later in2018, the father attempted to call the mother 37 times and sent her a text message saying, “I’m coming to take my daughter away from you”.
The father then attended upon the maternal grandparents’ home with a weapon, stating that he intended self-harm in front of the mother (and implicitly, X). Prior to his arrival the mother had been alerted that the father was on his way to the maternal grandparents’ home and left the property with X.
The police attended upon the paternal grandparents’ home where the father was arrested and refused bail.
In mid-2019 the father entered a plea of guilty in relation to the following offences arising from the incident on 18 September 2018:
(a)Carry weapon in a manner likely injure person/property pursuant to a state act;
(b)Possess a weapon without authority pursuant to a state act; and
(c)Two counts of intimidate intending to cause fear of physical or mental harm.
The father was sentenced to a term of imprisonment. That sentence was to be served by way of an Intensive Correction Order in the community, subject to conditions and directions made by a Community Corrections Officer. One of those conditions was that the father complete a residential rehabilitation program.
Also in mid-2019, a final Apprehended Domestic Violence Order (“Final ADVO”) was made against the father for the protection of the mother and X for a term of two years. That Final ADVO restrained the father from approaching or otherwise contacting the mother or X, or from being within 100 metres of their home.
The father’s conduct after separation
In mid-2019, the mother discovered that the father had posted on Instagram saying “The real deadbeat is the woman who keeps her child from a loving father” (as it was recorded by the mother).
In late 2020, the father was arrested by police and charged with a series of serious and significant family violence offences in relation to his then-partner. He was refused bail until early 2021. Subpoena material produced by the NSW Police records that:
(a)In late 2020 the father engaged in a further, serious incident of family violence against his then-partner, by video-calling her while “drug affected”, holding a “weapon which [the father] stated was intended for [his then-partner’s] father”. The father then met with his then-partner and “forcibly removed her from the car and proceeded to attack her” including by punching and head-butting her;
(b)A further incident of family violence ensued between the father and his then-partner, which caused her to flee her home. The father in late 2020 then entered the home of his then-partner’s parents, took a photo of her father sleeping and sent it to his then-partner. The police were called to and attended the home, where the father became confrontational and was detained by use of capsicum spray.
In late 2020, NSW Police attended on the father’s home and found a “[weapon]” in his bedroom, together with “obvious signs of drug use at the premises”.
In compliance with the consent orders made by me on 26 April 2022, the father via his solicitors disclosed on 19 September 2022 that:
(a)The father’s charges arising out of his arrest in late 2020, which included assault occasioning actual bodily harm, stalking or intimidating intending to cause fear of physical or mental harm, unlawful entry on enclosed lands, and intimidating a police officer in the execution of duty, were listed for hearing before City D Court in mid-2022;
(b)At the hearing, the father was sentenced to an Intensive Correction Order to be served in the community for a period of nine months until mid-2023. As part of the father’s sentencing, he was required to participate in an Anger Management and Domestic Violence Program.
There is no evidence that the father undertook the programs he was required to take pursuant to his Intensive Correction Order.
It was the mother’s evidence, which I accept and find, that the NSW Police performed drug testing on the father as part of his criminal proceedings, and that the father returned positive test results for a prohibited substance. I find that the father remains engaged a drug culture, characterised by an incapacity to regulate his behaviour, often leading to extreme and serious events of violence directed to persons in his focus at particular times, or to other persons who incidentally may be in his vicinity.
The expert evidence
Ms B interviewed the mother by video-conference on 22 May 2020. In addition she met with the mother in person together with X on 9 July 2020.
The father was scheduled to be interviewed by video conference on 14 May 2020. He did not attend. Resulting from a lack of engagement by the father, his interview did not occur until 6 August 2020 (by video conference) and 7 August 2020 (in person). Ms B assessed it as inappropriate for X to spend time with the father for the purpose of the interviews.
Having assessed each of the parents, and reviewed all of the information then available to her, Ms B’s considered that:
(a)The father is a parent with many weaknesses in his parenting capacity, and few parenting strengths; and conversely
(b)The mother is a parent with many strengths in her parenting capacity, and few parenting weaknesses.
Ms B set out the clearly close and secure relationship between the mother and X, which to her mind was “reflective of [the] mother being the primary caregiver and [[X’s] primary attachment figure”.
It was Ms B’s opinion, which I accept and find consistent with, that despite the mother’s “experience of trauma within the relationship with [the father], she has demonstrated emotional resilience and fortitude”. However, she observed that the mother remains extraordinary stressed and anxious when “exposed to reminders of the violence she was exposed to or events related to [the father]” and that she is “likely to have met diagnostic criteria for Posttraumatic Stress Disorder”. For example, Ms B recorded that:
27.[The mother] also advised that she has nightmares which are flashbacks to the events of [late] 2018. She disclosed the nightmares are of being […] in the house. Throughout the day, [the mother] said she feels an ongoing sense of anxiety. She "I still worry it's not over that he'll turn up ... or when I leave he might be here at the front… or find out what school [X] goes to". She says that this worry keeps her up at night with ruminating thoughts. [The mother] described that certain triggers will bring back a flood of memories in relation to the family violence she experienced. At times this can cause her to become withdrawn and quite distracted as well as being teary and overwhelmed. At its worst she gets emotional, she also feels nauseous.
I find that the mother remains terrified of the father, and that exposure to him presents a risk adversely impacting on her capacity to nurture and parent X.
Conversely in relation to the father, she observed that:
116. Whilst there may be some benefit for [X] to have a relationship with [the father] long-term, at present [X] holds no existent attachment with her father. Further, [the father] has no experience of independently caring for [X] and so his capacity to do so remains unknown. As aforementioned, [the father] has poor insight into [X's] needs and experience and generally, holds a low level of accountability in relation to the reason for their lack of relationship. Currently, [X] is a young child who is entirely dependent on [the mother] to meet her emotional and physical needs, and her mother has been the only reliable and responsible parent to date. It is my opinion that there are few benefits for [X] establishing a relationship with [the father], who is yet to demonstrate any sustainable change or significant shift in his attitude. More so, his poor insight may suggest he remains unopen or unwilling to change. As such, it is my view that [the father] needs to demonstrate a minimum of 24 months’ abstinence from illicit substances (as evidenced by regular testing), and improved psychosocial stability (i.e. no police involvement or use of aggression), whilst also continuing to improve his skills (i.e. anger management, improve his insight into family violence and child protection and general parenting).
Ms B placed particular emphasis on the father’s lack of responsibility and accountability for his “abhorrent” behaviours and their impact on the mother and X. She said at [117]:
d.…when challenged [the father] minimises his responsibility, externalises blame and thus, justifies his use of intimidation, threatening behaviours and aggression. Whilst at times he states awareness that he has "done the wrong thing" and he is willing to make changes to atone for this single incident, I see no behavioural evidence of this occurring. Based on this alone, it is my view that [X] may be exposed to anger, aggression or violence in [the father’s] care. Third, [the father’s] chronic substance abuse issues appear to have contributed to his neglect of his parenting responsibilities of [X] (and his older children). Again, whilst [the father] indicates he has maintained abstinence since [late] 2019 and completed rehabilitation, he has been referred for ongoing drug and alcohol counselling and NA support groups which he has not attended with any regularity. Furthermore, he has failed to provide hair follicle testing as requested by the court. This lack of commitment, combined with his lack of insight into the impact his drug taking had on his parenting raises real concern about his ability to take a child-focused view, and his motivation to follow recommendations laid out by the court. He has a high relapse potential and needs a demonstrated period of abstinence. Based on the above, I assess that [the father] is not in a position to prioritise [X], ensure her safety and thus, be able to develop a positive and continued relationship with his daughter.
In preparation of the family report, Ms B facilitated the father undertaking an Ontario Domestic Assault Risk Assessment (“ODARA”), which “ranks men with respect to their risk of domestic violence recidivism”. The father’s results of that assessment placed him in the highest category of risk of committing another domestic violence result. Unfortunately, that prediction was realised when the father engaged in a further significant incident of physical violence against his then-partner as described at [50] above.
Ms B distilled her recommendations to that:
·The mother should hold sole parental responsibility for X;
·X should live with the mother; and
·No time should be considered between X and the father until, at least, the father complies with a series of recommendations as to his drug rehabilitation, anger management, and counselling, and demonstrates an understanding of the impact of his behaviours on others.
Having regard to the nature of Ms B’s assessment, her expertise and experience and the absence of challenge to her report, I accept her opinion and attach significant weight to it.
The law and application
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
Section 65D of the Act compels the Court to make such parenting orders that are considered proper. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests.
The primary considerations (under s 60CC(2)) are:
(a)The benefit to the child of having a meaningful relationship with both of their parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect X from harm than to the benefit to X of having a meaningful relationship with both parents.
Meaningful relationship
I accept that the mother has been the primary carer for X for her whole life. There is no dispute, and I find, that the mother is X’s primary attachment figure and that their relationship is a close, meaningful one.
Conversely the father has no relationship with X. I accept the mother’s evidence that X does not identify the father as her parent. In the event the orders sought by the mother as supported by the ICL were made, X will have no relationship with the father.
Risk
In Isles & Nelissen (2022) 65 Fam LR 28 (“Isles”) the Full Court clarified that past allegations of violence and abuse are to be determined by reference to s 140 of the Evidence Act 1995 (Cth), but that the assessment of ‘unacceptable risk’ cannot be measured by the civil standard of proof. Rather, the Court is required to look to realistic possibilities (see Isles at [86]).
It was Ms B’s opinion at the time of the release of the Family Report in October 2020 that:
116.The onus of responsibility should fall upon [the father] to demonstrate changed behaviour and improved insight, before any consideration should be given to moving to any supervised time between [X] and [the father].
Two years later, as at the time of the undefended hearing, there is no evidence to suggest that the father has changed his behaviour and developed an improved insight as to X’s needs as was envisaged by Ms B. The evidence leads me to the opposite conclusion: that the father has continued to engage in a pattern of unrestrained violence and aggression, and that his substance use continues. I so find.
Additional considerations
I have found that the mother is X’s primary attachment figure and that she has no relationship with the father. I further find that the father has been inconsistent with his efforts to spend time with X, and cannot be described as having meaningfully attempted to participate in her life. There is, for example, no evidence of the father paying child support to the mother.
There will be no change to X’s current circumstances by way of the mother’s proposal. As recorded, X has not spent time with the father since September 2018. She was very young at that time. It is very unlikely that X would have any memory of her father. The orders proposed by the mother will not change that circumstance.
Given X’s age, evidence as to her views are a secondary consideration to the question of risk as set out above. However, I accept the mother’s evidence and find that X does not ask after her father or inquire as to who he is. That is consistent with her not having spent time with him since she was very young.
I find that the mother has demonstrated notable child focus and capacity throughout the parents’ relationship and for the duration of these proceedings. Her capacity to act protectively for the benefit of X was plain in her separating from the father and removing X from an environment in which she was regularly exposed to significant family violence.
Since separation, the mother has continued to exhibit an exemplary capacity to meet X’s physical, emotional and developmental needs and has demonstrated a commendable attitude towards the responsibilities of parenthood in ensuring her safe accommodation and education. The evidence satisfies me that the mother has been able to support X financially, with assistance from the maternal grandparents.
Conversely, for reasons set out above, the father has been unable to provide for the physical or emotional needs of X.
A relevant consideration in these proceedings is the need to mitigate any future exposure of the mother to the father.
As recorded at [59]-[60] above, I accept the mother’s evidence that she is “extremely fearful” of the father, and that she worries that he will seek “violent retribution” from her. Such finding is confirmed by the father’s conduct in attending the maternal grandparents’ home in late 2018 and by his conduct towards his then-partner in late 2020.
I accept that the mother has experienced significant anxiety in the conduct of these proceedings. It is important to my mind, so that she is able to parent X to the best of her ability, that any orders made alleviate such distress. I find that orders which permit X to spend time or communicate with the father will occasion significant stress to the mother, and that she would not cope with facilitating such a relationship as a result of the “manipulation, violence and abuse” to which the father has exposed herself and X.
Parental responsibility
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or in family violence (s 61DA(2)).
Having regard to my findings as to family violence, the presumption contained in s 61DA does not apply to the circumstances of this case. Furthermore, the findings made herein as to:
(a)Family violence;
(b)The complete absence of any co-parenting relationship between the parents since separation; and
(c)The father’s absence from X’s life during that period;
coupled with the recommendations of Ms B, leads me to be satisfied that it is not in X’s best interest for her parents to share parental responsibility for her, and it is in her best interests for the mother to have sole parental responsibility for her.
Time arrangements
Given that the presumption as to equal shared parental responsibility does not apply, I am not required to consider orders for X to spend equal or substantial and significant time with the father, and instead am required to make such orders as are in the best interests of X.
Having regard to all of the evidence, I find that that the cumulative effect of the father’s criminal involvement, substance abuse and history of serious, life-threatening family violence, comfortably establishes that the father poses an unacceptable risk of harm to X if she were to spend time with the father.
I am required to consider whether the unacceptable risk posed by the father to X could be mitigated. It has not been proposed by either the mother or the ICL that there be any form of supervised time arrangement between X and the father. There is an absence of evidence that would support such a regime being ordered, including as to the availability of a professional supervision to facilitate time. There is no evidence from the father that he would engage in a regime of supervised time spent.
In any event, I find that it would not be in X’s best interests to spend supervised time with the father. There is no evidence before me that would suggest the father has a capacity to regulate his behaviour, even in a supervised and controlled environment or context. His acts of significant violence and aggression have not been confined to the mother or his former partner. They have been extended to their families, and at least on one occasion also to the police. It is reasonable to foresee the likely possibility that such aggression might also be manifest in a supervised spend time with environment.
Having considered and weighed the relevant considerations identified by s 60CC of the Act, I find that it is in X’s best interests that she not spend any time or communicate with the father, and will make orders to that effect as proposed by the mother and the ICL.
Proposed restraints
The Final ADVO made in mid-2019 for the protection of the mother and X expired in mid-2021. It was the mother’s evidence, and I find, that she applied to the Local Court to extend the terms of the Final ADVO, however withdrew that application in circumstances where protective orders were made by Judge Neville on 26 May 2021 (in terms set out at [13] of these reasons).
The mother now seeks that the orders made by Judge Neville be made on final basis.
The power to make such injunctive orders is found in s 68B of the Act, which permits this Court to make such order or grant such injunction as it considers appropriate for the welfare of a child, including for the personal protection of the child (s 68B(1)(a) or for the parent of a child (s 68B(1)(b)).
In view of my findings as to the unacceptable risk of harm to X should she spend time with the father, and the father’s history of physical violence towards the mother and his former partner, I consider it appropriate to make the restraints sought by the mother to prevent the father coming into contact with X or the mother and to provide the greatest protection for them both as is available from the Court. Additionally it is appropriate to make an order restraining the father from posting on social media about the mother and X, in light of the father’s Instagram post onf mid-2019 coupled with the mother’s intense fear of the father which she says is triggered by exposure to him.
So as to attract the protection specified in s 68C of the Act as sought by the mother and supported by the ICL, I have made some variations to the terms of the orders sought pursuant to s 68B of the Act. While the mother sought an order restraining the father from coming into contact with her “family”, in my view such an order lacks specificity and …
X’s name
The mother has also sought an order permitting her to change X’s family name. It is her position that in circumstances where X will live with her and spend no time nor have any contact with the father, it is appropriate that X’s name be changed so avoid any confusion that may ensue from X and the mother having different family names.
In the circumstances I am satisfied that it is desirable and in X’s best interests that her family name be changed from that of the father, to the mother’s name, so that in the future she will be able to clearly identify as part of the mother’s family.
Travel
The mother further proposes ancillary orders as to obtaining a passport for X and international travel, which I have read and, in my view, are appropriate and sensible in the context of the mother having sole parental responsibility for X.
Service of these orders and reasons
The Notice of Ceasing to Act filed by the father’s solicitors filed on 15 February 2021 as identified at [11] recorded an address for the father in Sydney. His current solicitors advised the Court that this was the home of the father’s parents, that the father does not live at this address and that the father lives at an undisclosed address broadly identified as being on the Coast of New South Wales. In the circumstances, it is proper for the mother to cause a sealed copy of these orders and these reasons for judgment to be served upon the father’s current solicitors in substitution for personal service upon the father. I will make orders to that effect, and for the mother to file an affidavit confirming compliance.
Conclusion
Accordingly, for all of these reasons and having regard to the evidence to which I have referred by way of summary, I make orders broadly in terms of those sought by the mother in her Response to an Initiating Application filed on 28 October 2022 with some variations for the reasons identified herein.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 1 December 2022
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