Ridley and Baynton
[2018] FamCA 1120
•21 December 2018
FAMILY COURT OF AUSTRALIA
| RIDLEY & BAYNTON | [2018] FamCA 1120 |
G & C [2006] FamCA 994 |
| APPLICANT: | Mr Ridley |
| RESPONDENT: | Ms Baynton |
| FILE NUMBER: | PAC | 4919 | of | 2015 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 August 2018 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| THE RESPONDENT: | Appearing in person |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
Orders
That the mother have sole parental responsibility for the children X, born … 2007 and Y, born … 2009 (“the children”).
That the children live with the mother.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridley & Baynton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4919 of 2015
| Mr Ridley |
Applicant
And
| Ms Baynton |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the long term parenting arrangements in respect of an eleven year old girl and her nine year old brother (“the children”), the children of the parties.
The mother and father met while studying at university in 1995. They married in 2001 and immigrated to Australia in 2002.
The parties separated under one roof in 2013 and the father left the family home in August 2014.
The father commenced parenting and property proceedings in the Federal Circuit Court in October 2015 seeking orders that the parties have equal shared parental responsibility for the children and that the children live with the mother and spend time with him as agreed between the parties.
In November 2016 the father amended his case and sought orders giving sole parental responsibility for the children to him and they live with him and spend time with the mother as determined by the court.
The property proceedings were resolved by orders with the consent of the parties.
The mother initially sought orders that the parties have equal shared parental responsibility for the children, that the children live with her and spend defined time with the father. Allegations of sexual abuse were then made against the father and the proceedings were transferred to this court forming part of the Magellan program[1]. Subsequently the father discontinued his application for parenting orders.
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
The mother now seeks orders for sole parental responsibility of the children and that they live with her and that no order be made with respect to the father’s time. The mother also seeks that the father pay half the children’s medical and school related expenses.
The Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother with respect to parental responsibility and that the children live with her.
History of proceedings
In October 2015 the father commenced proceedings. In December 2015 the court made final property orders with the consent of the parties and ordered the parties to attend upon a family consultant for the purposes of a Child Dispute Conference. The parties attended upon the family consultant for interviews on 10 March 2016 and the Memorandum was released on the same day.
On 22 June 2016 an Independent Children’s Lawyer was appointed.
On 26 September 2016 the court made interim orders with the consent of the parties for the father to spend time with the children each alternate Saturday for a seven hour block period. The mother was also permitted to take the children on an overseas holiday.
In December 2016 there was a further interim hearing in relation to the parenting arrangements and judgment was delivered in February 2017. Pursuant to those interim orders the children were to continue to live with the mother and spend increasing amounts of overnight time with the father leading to a regime from April 2017 of each alternate weekend (from after school on Friday to before school on Monday) and half of all school holidays.
The family attended interviews with a family consultant in October 2017 and on 15 December 2017 the Family Report was released.
In February 2018 the matter was transferred to the Family Court of Australia and allocated into the Magellan Protocol as the mother had then recently made complaints that the father had sexually abused the oldest child, which were investigated by the NSW Department of Family and Community Services (“the Department”).
Apprehended Domestic Violence Order (ADVO) proceedings were brought in a Local Court and a final order for the protection of the children against the father was made in April 2018.
On 18 June 2018 the father appeared in person and withdrew from the proceedings. Orders were made for the final hearing with respect to orders sought by the mother to proceed on an undefended basis. The interim orders for the children’s time with the father were discharged.
On 14 August 2018 the mother’s application for parenting orders was heard on an undefended basis.
At the conclusion of the hearing I ordered that the mother have sole parental responsibility for the children. The outstanding application for parenting orders was reserved for judgment.
Background
The mother is 41, and the father, is 43. They commenced a relationship in 1998 and married in 2001. They also participated in a religious ceremony a few months later.
In February 2002 the parties migrated to Australia.
The mother alleges that the father was physically and emotionally abusive towards her on numerous occasions during their relationship. She deposes to a number of specific assaults including the father slapping her in the presence of her friend in 2004.
There has also been some involvement by the police in disputes between the parties. Documents produced by the police on subpoena tendered in the proceedings indicate that the police were called to the parties’ home in February 2005. On that occasion the father put a lock on his bedroom door, which the mother attempted to remove with the use of a hammer. The father then removed the lock and attended the police station to report that the mother threatened to kill him and made threats to harm herself. The police attended the parties’ home and the mother reported that she had no intention of harming herself but said that she would do so in order to anger the father.
In 2007 the oldest child, a daughter (“the oldest child”) was born and in 2009 a son (“the youngest child”) was born.
The mother alleges that the father’s violent conduct towards her continued after the birth of the children. She deposes to an incident in about 2009 in which she was bathing the oldest child, who was then two years old, and the father punched a wall in the home causing damage to it and intimidating her.
The mother also alleges that the father assaulted her in 2010 while holidaying with members of the paternal family.
The parties’ marriage broke down sometime in 2013 but they both continued to remain living in the family home. In August 2014 the father moved into his own accommodation and the children remained living with their mother and began spending each alternate weekend with the father.
The mother alleges that the father started seeing other women and introduced them to the children as their step mothers. She also deposes that the father made the oldest child sleep in the same bed as one of these women.
In January 2015 the mother deposes that the father took a “strange woman” on a holiday and that he told the children not to tell the mother about it.
On 19 February 2015 an incident occurred between the parties in which the police were involved. According to police records the father had attended the mother’s house to pick up the children and parked his car in the mother’s driveway. She refused to allow the father to take the children. The father would not leave so the mother picked up a piece of concrete and hit the father’s car, damaging it. Police attended the incident and charged the mother with damaging property. She was subsequently convicted and sentenced to a 12 month good behaviour bond.
On 15 May 2016 the father remarried. The mother deposes that on the morning of the wedding the father contacted her and asked to spend the day with the children to go shopping and see a movie. The mother consented to the father spending time with the children but was not aware until after the event that they had attended the father’s wedding.
The mother has made a number of allegations that the father has perpetrated sexual abuse against the children. It is alleged that on 22 September 2017 the youngest child (who was then eight years old) disclosed that the father had told him to get into the bed of the father and his wife while they were naked. On this date the oldest child (who was then ten years old) allegedly disclosed that the father had told her to take off her towel to “see how much she’s grown”. On 23 September 2017 a report was made to the Department of Family and Community Services (“the Department”) regarding these allegations as well as a further allegation that the father referred to the youngest child as a “swine”. The Department did not find that the children were at risk of harm as a result of these allegations.
In October 2017 the family were interviewed by a family consultant for the purposes of a Family Report. No reports of sexual abuse were made to the family consultant by either child or the mother on this occasion.
On 4 December 2017 the oldest child was presented to the police station where she made allegations that the father had entered her bedroom naked and had touched her genital area (“the December sexual abuse allegation”).
On 7 December 2017 this matter and two further allegations in relation to the father were reported to the Department. The further allegations were that the father had brought the children to a beach where there were naked men and women and that the oldest child had seen a text message on the father’s phone which was sexual in nature.
On the 14 December 2017 the oldest child was interviewed by Joint Investigation Response Team (JIRT)[2] and made a report consistent with the December sexual abuse allegation and that she was physically chastised by the father with a belt.
[2] The Joint Investigation and Response Team, made up of officers from police and Community Services, investigates allegations of serious child abuse
On 15 December 2017, as a result of the complaints made by the children, a provisional Apprehended Domestic Violence Order (ADVO) was made against the father for the protection of the children.
On 2 January 2018 the youngest child was interviewed by JIRT as a witness. It is recorded that the youngest child did not provide any information that corroborated the oldest child’s disclosures.
On 11 January 2018 the father was interviewed by JIRT and denied all allegations.
JIRT was unable to substantiate the allegations made by the oldest child, but did assess that the oldest child was at risk of sexual and physical harm and subsequently closed the investigation.
A Final ADVO against the father for the protection of the children was made on 30 April 2018. The Final ADVO was made in the mandatory terms and further restrained the father from approaching or contacting the children or going within 500 metres of their home until April 2020.
On 18 June 2018, as previously noted, the father withdrew from the proceedings.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and also agreed with the reasoning of Bennett J in G & C[5].
[3] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[4] (2007) Fam LR 518
[5] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark (supra) continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The family consultant observed that the children had a close and positive relationship with the mother. She has been their primary caregiver their entire life. It is clear that the children have a meaningful relationship with the mother and it is important that this relationship continue.
The family consultant was of the opinion that the children’s relationship with the father was strained and observed that the children and father’s interactions were stilted and distant. It could not be said however that the children do not benefit from having a meaningful relationship with the father.
The orders proposed by the mother and ICL do not provide for the children to spend any time with their father and the father has withdrawn from these proceedings and no longer seeks orders for time with the children. He can be taken in doing so to accept that the children will not benefit from having a meaningful relationship with him in the future.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
Ordinarily I would be required to make findings in relation to the allegations levelled against the father, and whether such allegations give rise to an unacceptable risk of harm to the children. However, in the circumstances in which the father has withdrawn from the proceedings and seeks no order as to time with the children, and where the mother and the ICL do not seek a positive order that the children spend no time with the father, I am not required to make a finding as to whether the allegations are proven on the balance of probabilities or whether the father poses an unacceptable risk of harm to the children.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Both the children have expressed negative views of the father and the father’s wife and are strongly aligned with the mother. The family consultant is of the opinion, which I accept, that neither of the children are of an age and apparent developmental level whereby the Court could place significant weight on their views.
The family consultant observed that the children’s relationship with the father and the father’s wife as somewhat fractured. She opined:
[The children] appeared to have a strained relationship with [the father]. Both children report that they would like to have a better relationship with [the father]; however, both reported that their experience is that [the father] is not available to them, even when they spend time with him.
…
[The children] appeared to have a conflictive relationship with [the husband’s wife], which seems to have been significantly negatively impacted by the lack of communication between [the husband’s wife] and the children following allegations made by [the mother] against [the father].
Of the children’s relationship with the mother, the family consultant observed:
[The children] presented as having an overall positive relationship with [the mother]. They both reported that it was a safe relationship, and both children said they feel cared for, and heard. The children also seemed to have a positive relationship with the maternal grandparents, whom, the children reported, they trust to provide care for them. The children’s primary attachment is to their mother, who they have a warm and positive relationship with.
The children’s relationship with the father and the father’s wife was strained at the time of the Family Report, which occurred prior to the December sexual abuse allegation being made. It is likely to have become further attenuated since these allegations were made.
The father has not spent any time with the children since December 2017.
Until June 2018 the father had been proactive in seeking orders to spend time with the children in these proceedings. However, the father’s voluntary withdrawal from these proceedings in June 2018 without any arrangements for even communicating with the children in the future is a very weighty consideration. There is no evidence that the father provides any financial support to the mother in the form of Child Support and it can be assumed from the father’s abandonment of these proceedings that he does not.
The mother has been the children’s primary carer since they were born. The family consultant observed the mother to have a positive and loving relationship with the children and that the children felt safe and cared for by her. I am of the view that the mother has demonstrated a positive attitude to the responsibilities of parenthood.
In the circumstances where the children have not spent time with the father since December 2017 and have lived in the care of their mother, there will be no changes to the children’s circumstances.
It is the view of the family consultant, which I accept, that the father has limited parenting capacity demonstrated by his inability to engage with the children. The family consultant observed:
The children continued to stand together as [the father] watched them from a slight distance. [The youngest child] made an attempt at connection with [the father] by inviting him to play, but [the father] did not respond, and continued to stand in the middle of the room as the children played between themselves.
The mother raised concerns that the father was unable to put the children’s interests before that of his new wife, as they live in her home without an appropriate place for the youngest child to sleep and the oldest child had reported being asked to massage the father’s wife’s feet.
The Family Consultant held strong concerns in regards to the parenting capacity of the father’s wife. She opined:
It appears that the children may be experiencing some distress while spending time with [the father], as it was reported by [the father’s wife] and the children that she no longer interacts verbally with the children when they spend time with [the father]. [the father’s wife] stated that she implemented this system as a way to protect herself against further accusations from [the mother], however, this strategy has created an environment where the children do not feel welcomed or included, and they appear to experience this as animosity … This indicates a low level of both reflective functioning, and not understanding the children’s developmental needs. It also indicates that [the father’s wife] is unable to prioritise the children’s needs above her own.
Both parents are of the same ethnic background and there is no dispute that the children will experience traditions and practices of this culture in the mother’s household.
As the father has withdrawn from these proceedings it is in the best interests of the children to finalise these proceedings.
The mother contends that the father was physically and verbally abusive towards her during their relationship, including two incidents in which she was slapped in front of family and friends.
As detailed above there have been a number of incidents in which the police were called due to the mother making threats of violence towards the father or causing damage to property during arguments. Indeed in February 2015 the mother was found guilty of the offence of damaging and destroying property. The mother’s perpetration of family violence appears to be in the context of entrenched conflict between herself and the father. Considering that the proposed orders do not provide for the children to spend time with the father, or require the parents to share parental responsibility, there is little likelihood that the parents will come in contact with one another in the future.
The father raised concerns with the family consultant that the children are fearful of the mother and that she controls them through threats. Of this the family consultant said:
Both children reported a positive relationship with [the mother], and were observed to relate to her in an easy and natural manner during the observation and neither child indicated feeling fearful of [the mother]. It is possible that [the father] has based his assumptions on behaviour that he has seen in the children that he has misattributed to fear, when in fact it may reflect discomfort in the children which is driven by their awareness of the conflict between their parents.
Having raised this allegation; the father has withdrawn from the proceedings. He can be taken to accept that the mother does not pose any real risk of harm to the children.
Any other fact or circumstance that the court thinks is relevant
It is the mother’s proposal that an order be made for the father to pay half of the children’s educational and medical expenses. There has been no evidence adduced as to the father’s capacity to meet these expenses or indeed any evidence as to whether the father is already paying child support for the children.
As the mother is also seeking an order for sole parental responsibility of the children, it is in my view opportunistic of her to seek that the father be financially involved in the children’s lives. Given his withdrawal from the proceedings and the children’s lives, it is unlikely that he would comply with such an order which may lead to contravention proceedings.
Further, as there is a history of both parties perpetrating family violence against the other, it is in the best interests of the children to minimise contact between the parties to reduce the likelihood of any future acts of family violence. An order that the parties share financial responsibility for the children’s medical and educational expenses would necessitate communication between the parties which would in turn increase the likelihood of future acts of family violence.
For the foregoing reasons I am not satisfied that it would be in the children’s best interests to make this order sought by the mother.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (s 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (s 61DA(4)).
In these proceedings the mother seeks sole parental responsibility for the children.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
Given the father has withdrawn from proceedings, the only proposal before the court is for the mother to have sole parental responsibility. In circumstances where the father is uninvolved in the children’s lives and there is no capacity for the parent’s to co-operate with one another, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Conclusion
Having regard to all of the factors in relation to the best interests of the children I make orders that the mother have sole parental responsibility for the children and that the children live with the mother.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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Family Law
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