RIZZARDI & RIZZARDI

[2015] FamCA 718

FAMILY COURT OF AUSTRALIA

RIZZARDI & RIZZARDI [2015] FamCA 718

FAMILY LAW – CHILDREN – Undefended – Where the mother has discontinued her parenting application—Best interests of the child – Where the child lives with the father and spends no time with the mother – Where primary and additional considerations considered – Where only the father is seeking parental responsibility

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

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

APPLICANT: Ms Rizzardi

RESPONDENT: Mr Rizzardi

INDEPENDENT CHILDREN’S LAWYER: Ms Weaver

FILE NUMBER: PAC 1288 of 2014

DATE DELIVERED: 31 August 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Weaver of Legal Aid NSW Bankstown Family Law

Orders

1. That the father have sole parental responsibility for B, born … 2002 (“the child”).

2. That the child live with the father.

3. That the child spend time with the mother in accordance with his wishes.

4. That the mother be restrained from approaching, following, stalking or contacting the child at any time, or from approaching or attending the property at which the child resides or the school at which the child attends at any time unless agreed or arranged in writing with the father in advance

5. All outstanding applications in respect of the child are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rizzardi & Rizzardi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1288  of 2014

Ms Rizzardi

Applicant

And

Mr Rizzardi

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of B the 13 year old son of Mr Rizzardi (“the father”) and Ms Rizzardi (“the mother”).

2. The parents began living together in around mid-1997, and were married in 1998. The child was born in 2002.

3. The parents separated on a final basis in August 2011, although they both remained living in the family home with the child until January 2013 when the mother left to live elsewhere. The child remained in the care of his father.

4. On 21 March 2014 the father filed an Initiating Application in this Court seeking property orders.

5. On 30 May 2014 the mother filed a Response seeking both financial and parenting orders. In particular, she sought that the parents have equal shared parental responsibility for the child, that he be “reintroduced” to her starting with one hour at a Contact Centre each week and gradually increasing to every alternate weekend, that he spend defined time with her on special occasions and associated orders. On 13 June 2014 the father filed a Reply seeking parenting orders.

6. In December 2014, the mother indicated to the Registrar that she intended to discontinue her parenting application in its entirety and on 24 March 2015 she filed a Notice of Discontinuance in respect of the parenting proceedings.

7. In his Response to Initiating Application filed 4 June 2015 the father seeks the following orders:

   a.That the father have sole parental responsibility for the child;

   b.That the child live with the father;

   c.That the child spend time with the mother in accordance with his wishes;

   d.That the mother be restrained from attending the child’s school unless invited expressly by the child.

8. The Independent Children’s Lawyer seeks an alternate order to order (d) proposed by the father, that the mother be

   …restrained from approaching, following, stalking or contacting the child at any time, or from approaching or attending the property at which the child resides or the school at which the child attends at any time unless agreed or arranged in writing with the father in advance.[1]

   [1] Exhibit 4

9. The matter was heard on an undefended basis on 12 June 2015.

Background

1. The father, who is 41, and the mother, who is 50 commenced a relationship in 1996 and lived together from mid-1997. The parties married in 1998 and in 2002 B, their only child, was born. The mother’s two adult children from a previous relationship, Mr C and Mr D, also formed part of the household.

2. During the relationship the father worked outside the home while the mother cared for the child at home.

3. The parties separated in August 2011, although they remained living together until the mother left the home in an incident involving police in January 2013.

4. The father says in his affidavit that there was an incident in the home on 1 August 2011, about the time of separation when the mother drank a large volume of bourbon, became aggressive and threatened to burn the father’s truck and property. The child “became hysterical” while the mother yelled abuse and threats to the father.

5. The following day, the father says the mother again made threats to burn his truck and said to the child, who was nine, “you can go live with your father you fucking cunt”. The father says that he reported this incident to the police but there is no record of the event in the records from police produced on subpoena and tendered in the proceedings.

6. In another incident in August 2011, the mother’s older son Mr C punched a hole in the door, and the father saw the child being pushed to the ground by the mother and Mr C.

7. There was another incident in 2011, when the father says that the mother and her older sons, Mr D and Mr C, were intoxicated and the mother said to the child “fuck off and go live with your father you fat fucking cunt”.

8. The father alleges a history of physical violence perpetrated by the mother against the child. On an undated occasion, the father states that he saw the mother pull the child’s hair and kick him and there was an occasion where the mother was stopped by police as they had witnessed the mother pull the child’s hair.

9. The child disclosed to a counsellor in February 2014 that on an undated incident (in approximately 2011) after a water fight in the backyard the mother ripped off his clothes and chased him into the bathroom. In the counsellor’s records it is recorded that the child alleges that while he was in the shower the mother undid the lock and pushed him around causing him to have injuries and scratches.[2]

   [2]Exhibit 2.

10. In early 2012, the father says that the police applied for an Apprehended Violence Order (AVO) for his protection against the mother. Reports of the mother abusing by the mother and psychologically mistreating the child were received by the Department of Family and Community Services (“Community Services”) at this time.[3]

    [3]Exhibit 1.

11. In early 2012 there were also concerns about the child’s poor school attendance. The father seems to suggest that he was unaware that the child was regularly not at school but says that the child told him that the mother would often be asleep at the start of school. On 5 March 2012, the NSW Department of Education wrote to the parents regarding concerns about the child’s school attendance. The father expresses that he subsequently contacted the Department of Education to discuss the matter and then took responsibility for the child’s schooling.

12. In June 2012 the father ceased working and began caring for the child.

13. The father describes ongoing verbal abuse and threatening language by the mother against him and the child. For example, on 16 November 2012, following the police attending the home to question the mother’s son, Mr D, about an unrelated incident, the mother said to the father “you will pay for this you fucking cunt. [Mr D] will sort you out” in the presence of the child which caused him to become frightened upon hearing this. In December 2012 the mother said to the child “you can stay with your fucking father, I don’t give a fuck about you. He won’t be around for long when [Mr C] finishes with him”. The child also told his father that the mother had said to him that “I don’t care if the house burnt down with you and dad in it”.

14. Several further similar incidents are said to have occurred in January 2013.  The father says that the mother on each of these occasions verbally abused and threatened him and/or the child. On occasions the father called police and domestic violence incidents are noted in police records.

15. The child has not spend any time with the mother since January 2013.

16. The father reports that there have been further violent incident involving the mother since she left the family home when she has returned to collect items of property. On 4 February 2013, there was an incident at the former family home between the mother, father and the mother’s sons. The father states that Mr D came towards him and started to push him with his shoulder and screamed at him, and that the child was crying and called the police. The police attended the family home and after speaking to the parents and the mother’s sons, the mother entered the home in the company of police to gather some belongings.[4]

    [4]Exhibit 3.

17. On 6 March 2013, the father says that the mother screamed verbal abuse at him outside the father’s car and that the child locked himself in the car while this occurred. The following day, the father received a call from the school principal that the child was crying and afraid at what his mother had done and the father was asked to collect him from school.

18. The father also says that the mother harassed and threatened him and the child by driving up and down their street or attending the child’s school. He sets out particular incidents in March, May and June 2013.

19. Police records also indicate that the mother made similar complaints of the father using aggressive and offensive language towards her and harassing her. As a result of one such complaint in October 2013, the father was charged with operating a vehicle so as to harass or intimidate a person, negligent driving and driving a vehicle to menace another person with intent. An interim AVO was also made against the father for the mother’s protection prohibiting the father from approaching or contacting the mother by any means. The police records in relation to this incident are incomplete and the outcome of these proceedings is unknown.[5] At around the same time, the child attended a police station with his father to report the past history of verbal and physical abuse and ongoing issues that he had been having with his mother and half-brothers and that he “felt worried and scared” and “fearful” and a provisional AVO was granted against the mother for the child’s protection. The father says that this application made by police was dismissed at court due to technicalities surrounding the service of documents by police. The police records are unclear as to this issue.[6]

    [5]Ibid.

    [6]Ibid.

20. In February 2014, in a letter annexed to the father’s affidavit, a psychologist who had been working with the child since July 2013 wrote that

    [b]ecause of the intense anticipatory fear of his Mother showing up in the local area and other physical signs of hyper arousal and hyper vigilance, [the child] was assessed for Post-Traumatic Stress Disorder (PTSD)…[the child’s] score [on the Child PTSD Symptom Scale] placed him in the clinical range for PTSD.

    …

    When assessed last month, [the child’s] anxiety….is within the extremely elevated range (percentile rank of 99.) His separation anxiety is also not being managed at the present time. [The child] seeks continual reassurance from his Father and does not want to be away from him…He thinks he sees his Mother and brothers around every corner. In effect the trauma for the child continues.

21. On 20 March 2014 the child, accompanied by his father, again attended a police station to report the past history of abuse and ongoing concerns of the mother and his half-brothers. A non-urgent AVO was applied for by the police.[7] The outcome of this AVO application is also unclear. The father states that the police “then reapplied for the AVO [after the October 2013 application]” but he understood that it was dismissed at Suburb E Local Court on the basis that it was the same application as that which was dismissed in October 2013.

    [7] Ibid.

22. On 21 March 2014 the father (husband) filed an Initiating Application for property orders only. On 30 May 2014 the mother (wife) filed a Response seeking both property and parenting orders.

23. On 13 June 2014, the father filed a Notice of Child Abuse. Later that month the matter was allocated to the Magellan protocol and a report requested and ICL appointed.

24. On 1 September 2014, the child’s school counsellor noted that the child was anxious and upset because his mother and brother had followed his bus twice in the past fortnight and that he was “frightened to tell dad” and had “lost a bit of faith [and] trust in the police”. The counsellor noted that she had referred the child and the father to the police. The counsellor also stated that the child was highly anxious/often feeling sick [and] wanting to go home to be [with] dad [and] also worried that [mother and brother] will come to the school”.[8]

    [8] Exhibit 2.

25. There are numerous records of the child, accompanied by his father, attending at police stations to report the past history of abuse and ongoing concerns about the mother and half-brothers. The records indicate that the child made such complaints in at least October 2013, March 2014 and September 2014. On the last occasion, the child reported the complaint that he had made to his school counsellor about his mother and his brother following the school bus. Police records indicate that upon enquiries with the bus company regarding the CCTV footage it was recorded that the footage had been reviewed by the bus company staff and at no time was the vehicle described seen to be following the bus. The investigation was subsequently discontinued. The police officer noted that “[o]ther information available to this [officer] indicates that the [child’s] father is using the [child] as a “pawn” in an ongoing domestic/family court dispute”. [9] This incident is not mentioned in the father’s affidavit.

    [9]Exhibit 3.

26. In October 2014, the wife filed a Notice of Child Abuse and the Magellan Report was released. That Report indicated that there had been eight notifications concerning the child between February 2012 and June 2014. The matters of verbal and physical abuse of the child, neglect including school absences, alcohol abuse by the mother, domestic violence by the parents, psychological harm and concerns about the mother and brother’s criminal associates were reported. Some of the reports were regarded by Community Services as constituting a risk of serious harm but none were assessed as presenting so high a risk to the child as to require further investigation or action by Community Services. In the Report dated 8 July 2014, the relevant officer of Community Services expressed the view that there were no immediate child protection concerns arising from the child in the care of his father.

27. On 15 December 2014, the mother indicated through her solicitor that she intended to discontinue her parenting application and her Notice of Discontinuance was filed on 25 March 2015.

28. The matter was fixed for an undefended hearing which took place on 12 June 2015.

29. The mother did not appear and the affidavit filed by the father only was read. An ICL also tendered documents produced on subpoena by the child’s school, and the NSW Police.

30. The father sought orders that he have sole parental responsibility for the child, that the child live with him and spend time with the mother in accordance with his wishes. The father also sought an order that the mother be restrained from attending the school unless expressly invited by the child. The ICL supported the father’s proposed orders but proposed an alternative and more extensive restraint upon the mother from approaching or contacting the child at any time, approaching or attending the child’s home or school unless agreed and arranged in writing with the father in advance.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met in various ways 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;

3. The principles underlying these objects include 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

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. These proceedings were commenced after June 2012 so greater weight is to be given to subparagraph (b), the need to protect the child from harm.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[10] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[11] and has also agreed with the reasoning of Bennett J in G & C[12].  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”.

   [10] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [11] (2007) Fam LR 518

   [12] [2006] FamCA 994

4. Under the proposed orders of the father, the child would only have a meaningful relationship with his mother if he were to express a desire to spend time with her. Currently, on the limited evidence available, that seems to be unlikely.

5. However, when Bennett J discussed the terminology in G & C (supra) she 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).”

6. Further, the Full Court in McCall & Clark (supra) at [122] said:

   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.

1. In this matter it is difficult to conclude that there would be a positive benefit to the child of having a significant relationship with his mother, particularly as she has now disengaged from the proceedings and is not seeking any orders herself that would foster that relationship.

2. So far the need to protect the child from harm arising from abuse, neglect or family violence is concerned, although the evidence in the father’s affidavit is untested and some concerns arise particularly from the father permitting, or possibly encouraging, the child to make reports about his own safety to police, there is evidence the child has at least been exposed to family violence. There is also evidence that he is suffering from anxiety and Post Traumatic Stress Disorder associated with a fear of his mother and her behaviour. The orders proposed will result in the father, who has been responsible for the child’s sole care for two and half years, being responsible for him and that he only spend time with his mother in accordance with his wishes. The orders will also restrain the mother from coming into contact with the child at places such his school and home unless agreed to by the father.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of [the child/ren] and factors underlying those views

1. There is no information concerning the child’s views other than that which has been expressed in the psychologist’s reports and police records. To the extent that they indicate the child’s views they express that he has intense fear of his mother and seeks continual reassurance from his father and does not want to be away from him.

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

1. Very little is known of the child’s relationship with his parents. However, there seems to be no doubt that the child has been estranged from his mother since 2013 and that his father has been his main caregiver since at least June 2012.

2. The mother’s poor relationship with the child can be inferred from her discontinuing her parenting application. It appears that the child has a poor relationship with his two half-brothers who appear to be aligned with their mother, and about whom he has complained to police.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

1. The mother has not spent any time with the child since January 2013 and it appears that at least from this time failed to participate any decision-making regarding the child.

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

1. Although there is no direct evidence on this issue it can be inferred that the father who has cared for the child from at least mid-2012 has maintained him.

Likely effect of change in the child’s circumstances

1. The father’s proposed orders do not involve a change in circumstances.

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

1. Although it is not clear where the mother lives it appears that she has always lived near the father and child since separation. If the child chooses to spend time with his mother it appears that there would be no practical difficulty or expense to facilitate this occurring.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

1. The father says that he ceased working in June 2012 and then began caring for the child full-time. On the limited information known to me it appears that the father is able to meet the child’s physical and material needs. The Magellan Report indicates the Department of Family and Community Services had no child protection concerns about the child in the care of his father.

2. The child has been receiving support from a psychologist since July 2013 which appears to have been arranged by the father.

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

1. Although it is not clear why the father does not take responsibility for the child’s poor school attendance prior to March 2012 (especially as the parents separated in August 2011) it appears that since that time he has taken responsibility for the child’s attendance at school.

2. I have some concerns about the father involving the child in complaints to the police about the mother, rather than taking responsibility for making such complaints himself, especially as the child appears to suffer from extreme levels of anxiety which are described as meeting the criteria for Post-Traumatic Stress Disorder.

3. The father alleges that the mother has been extremely verbally aggressive to the child at least since separation in August 2011 and has told him in a particularly aggressive and offensive manner that she is not interested in caring for him. However, it is the mother who first sought parenting orders for the child. In light of her subsequently discontinuance of her parenting case it appears that she has also abandoned her responsibilities as a parent.

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

1. The father makes serious allegations of family violence and it appears that he has applied for AVOs on a number of occasions. It is difficult to understand the reasons why these AVOs have not been made on a final basis and it is also to be noted that the mother has sought and obtained at least an interim AVO for her protection against the father. There are also incomplete records in relation to final AVOs against him and his criminal history. I am unable to make any positive findings in relation to family violence though it suffices to say that the Department of Family and Community Services appear to be concerned that it has occurred and the child’s high anxiety appears to also be related to exposure to family violence.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. In Goode & Goode[13] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [13] (2006) FLC 93-286

3. Where the Court is to determine parental responsibility, the starting point is      s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for the child (subsection 61DA(4)).

4. In my view, the presumption that it is in the best interests of the child for his parents to have shared parental responsibility is rebutted in this case. Only one of the parents is seeking parental responsibility. In the circumstances there is no alternative other than for the father to have sole parental responsibility for the child.

Conclusion

1. Having regard the factors set out in relation to the best interests of the child and having regard in particular to the fact that the mother has discontinued her parenting application, I am of the view that it is in the child’s best interest for the orders to be made as sought by the father with the exception of the restraint which in my view will be more protective if made in the terms sought by the ICL. In my view, such a level of protection is in the child’s best interest. For these reasons I made the orders set out at the forefront of these Reasons.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 31 August 2015.

Legal Associate: 

Date:  31 August 2015