ROURKE & MERCER
[2016] FamCA 329
•6 May 2016
FAMILY COURT OF AUSTRALIA
| ROURKE & MERCER | [2016] FamCA 329 |
| FAMILY LAW – CHILDREN – With whom the child lives – With whom the child spends time – Parental responsibility – Best interests of the child – Very young child – Father’s perpetration of family violence – Father’s mental health – Where father has disengaged from the proceedings – Benefit of a meaningful relationship – Need to protect the child from harm – Nature of the child’s relationship – Parental capacity – Attitude to the responsibilities of parenthood – Child live with the mother – Mother hold sole parental responsibility. FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – Considerations in respect of adjourning parenting proceedings – Proceed to final undefended hearing. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61CA, 61DA, 65DAC, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Rourke |
| RESPONDENT: | Ms Mercer |
| INDEPENDENT CHILDREN’S LAWYER: | Gonzalez |
| FILE NUMBER: | PAC | 4417 | of | 2013 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 24 November 2015 |
REPRESENTATION
| SOLICITOR FOR THE RESPONDENT: | Brian Samuel & Associates | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Gonzalez & Co | |
Orders
The mother have sole parental responsibility for the child B born … 2012 (“the child”).
The child live with the mother.
All previous parenting orders are discharged.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rourke & Mercer 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 4417 of 2013
| Mr Rourke |
Applicant
And
| Ms Mercer |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of the child B, a three year old girl (“the child”), the child of Mr Rourke (“the father”) and Ms Mercer (“the mother”).
The parents commenced a relationship in February 2010. Their only child, B, was born in 2012. The parents separated in January 2013 when the child was five months old.
On 15 October 2013, the father commenced the current proceedings in this Court.
The father sought, in his Initiating Application filed 15 October 2013 final orders including that the parents hold equal shared parental responsibility for the child, that the child live with the mother and spend three weekends every month, half school holidays and special occasions with the father. He also proposed orders in relation to specific issues such as parental communication, dispute resolution and communication with the child.
The mother seeks orders, as set out in her Response to Initiating Application filed 6 December 2013, that she hold sole parental responsibility for the child, that the child live with her and that the father’s application be dismissed. She does not seek any orders in relation to the father’s time with the child.
The Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother.
On 14 November 2015, the matter was listed for an undefended final hearing. The father did not attend and the matter proceeded to final hearing. Orders were made suspending the current orders with respect to the father’s time with the child and judgment was reserved.
The father’s non-attendance
The proceedings were commenced in October 2013.
On 21 September 2015, there was no appearance by or on behalf of the father. The matter was listed for undefended hearing on 24 November 2015 and directions were made in relation to the filing of documents. It was noted that the ICL had undertaken to notify the father personally in relation to the orders concerning the undefended hearing as it was his understanding that the father’s former solicitor no longer acted for him.
On 24 November 2015, there was again no appearance by or on behalf of the father.
On 24 November 2015, the ICL filed an Affidavit of Service, detailing that service of a letter from the ICL had been attempted at the father’s address, as noted on his Initiating Application, but the process server was told that the father no longer resided at that address and service was unsuccessful.
The mother and ICL sought that the Court deal with the matter to finality in the absence of the father. It was submitted on behalf of the mother that as the mother relied on her Response and affidavit of December 2013 there was no prejudice to the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
I am satisfied that that the father is aware of the proceedings.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it is in the best interests of child for the proceedings to be finalised and dealt with in the absence of the father.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
In light of the matter proceeding on an undefended basis, the father’s material was not read.
Documents relied on
At the hearing, the mother relied on the following documents:
a)Response to Initiating Application filed 6 December 2013,
b)Affidavit of the mother sworn on 4 December 2013 and filed 6 December 2013,
c)Expert Report of Dr C dated 18 June 2015,
d)Child Responsive Program Memorandum dated 24 July 2015,
e)Subpoenaed documents from the NSW Police in relation to the father’s criminal history,
f)Subpoenaed documents from the Sydney Children’s Contact Service.
Given that the mother’s affidavit was sworn in December 2013 and that few documents were tendered, many of the recent facts in the matter are drawn from the Expert Report.
Background
The father, who is 38 years old, and the mother, who is 30 years old, commenced a relationship in 2010.
The parents’ only child the child was born in 2012.
The mother was the child’s primary carer during the relationship. She says that the father played a minimal role in the child’s care.
The mother and father separated on 22 January 2013 after an incident of family violence. The mother and child have lived with the maternal grandparents since separation.
On 22 January 2013, a provisional Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection, which was made a final ADVO on 4 June 2013. The father was convicted for four breaches of the ADVO in 2013. The issue of family violence is discussed later in these Reasons.
In around July 2013, the father admitted himself to D Hospital for depression for six weeks. He was asked to leave two days before the end of the program because of his abusive behaviour towards staff and clients.
On 9 October 2013, in connection with his criminal proceedings, the father was assessed by Mr E, a forensic psychologist. The issue of the father’s mental health is discussed later in these Reasons.
In April 2014, interim parenting orders were made by consent providing for the child to live with the mother and to spend supervised time with the father for two hours each fortnight at Sydney Children’s Contact Service.
The parents attended upon the family consultant in July 2014 and the Child Responsive Program Memorandum was released in September 2014.
On 9 February 2015, Dr C was appointed as the Chapter 15 Expert.
On 16 April 2015, the Contact Centre sent the father a formal warning. The letter reads that the father has breached the service agreement to “behave in a respectful and responsible manner at all times at the [Contact Centre]”. It is further detailed that:
The service has had a number of phone calls with the father where he has been inappropriate and disrespectful. We had addressed this issue with him, and he had been asked to be mindful of this behaviour. Despite this advice, there have been further occasions of this inappropriate behaviour.
The parents, maternal grandparents, the father’s partner and the child attended upon Dr C in May 2015.
In the Contact Centre records for the father’s last session with the child on 11 July 2015, it is detailed that the handovers had become progressively more difficult recently, that the staff member and the mother spent approximately 10 minutes encouraging the child to separate from the mother, and then around another 10 minutes for the child to settle with the father. The father was observed to successfully engage with the child and be “completely at ease” with the child once she had settled. After the visit, when the staff member spoke to the father, it was recorded that the father quickly became frustrated and angry.
On 24 July 2015, the Contact Centre indefinitely suspended the child’s visits with the father. The Centre’s records indicate that:
After the contact visit on 11th July 2015, then in a phone call on 17th July 2015, the father spoke to staff in an argumentative and angry manner. The service issued the father with a formal warning on 16th April 2015 for the same behaviour…
The father has not spent time with the child since the visit on 11 July 2015. Given his lack of participation in the proceedings, no alternative to the Contact Centre has been proposed.
Dr C’s report was released to the parties in August 2015 and the matter was listed for further directions on 21 September 2015.
As previously noted, there was no appearance by the father on 21 September 2015 and the matter proceeded to hearing on 24 November 2015.
Risk in the mother’s household
The mother and the child live with the maternal grandparents. In interview with Dr C, the father raised the concern that the child is living with the maternal grandfather, who the mother has previously alleged had perpetrated child sexual abuse against her.
The mother does not mention this issue in her affidavit. In interviews with Dr C, the mother was questioned about the allegations she had made in 2002 when she was 15, which resulted in the maternal grandfather being charged with sexual assault. The doctor reports:
[Ms Mercer] explained not referring to her allegations unprompted because she has “blocked” them and was “so ashamed and embarrassed” at how she hurt her family.
Crying, [Ms Mercer] referred to “shame” and “disgust” with herself for what she had done. She was adamant there was no truth in her allegations, nor would she put the child at risk by living with an abusive [maternal grandfather]. She could not understand making the allegations, other than to think she made them up because she was “alone and wanted attention”….
[Ms Mercer] explained she had revealed she was lying about the allegations while living with friends, missing her family and feeling “horrible” for what she had done. She reported her parents forgave her and, following her return home, they all went to counselling….
When the maternal grandparents were interviewed by Dr C “they acknowledged [the mother’s allegations about the maternal grandfather] and explained not mentioning them because of the pain it causes the family, especially to [the mother].”
Dr C concluded that
[Ms Mercer’s] adolescent fabrications of abuse reflect her troubled state of mind at that time, as well as the pernicious influence peers may have on a fifteen year old who seemed to be desperate for attention and acceptance. Her behaviours and allegations at that time remain painful memories to her and her family.
As was appropriate, FaCS [the Department of Family and Community Services] made enquiries in 2014 to [Ms Mercer] about her allegations and later retraction of them. There did not appear to be any grounds for preventing the child living in the [Mercer] household. This still remains the case.
On the basis of the mother’s and grandparents’ responses in interviews with Dr C, Dr C’s conclusions about the allegations and the FaCS assessment, I am satisfied that the child is not at an unacceptable risk of sexual abuse in the mother’s household.
The father also alleged in the course of the interview with Dr C that when “clubbing” the mother had occasionally used cocaine and ecstasy, that she drank alcohol almost daily and that “at dinner she could drink a bottle”. He also alleged that the mother smoked marijuana with him a few times. The mother reported to Dr C that she drinks alcohol on “special occasions, now and then” and was adamant she has never used illicit substances. There is no evidence to support a finding that the mother has misused alcohol or drugs. Further, if the father is suggesting the child is at risk of neglect due to the mother’s substance abuse this allegation is inconsistent with his last known proposed orders that the child continue to live with the mother and his disengagement from the proceedings. In these circumstances I am satisfied that there is no unacceptable risk associated with alleged substance misuse in the mother’s household.
Family violence
The perpetration of family violence by the father is a significant issue in this matter.
In December 2012, the mother says that she and the father had an argument, in which he spat in her face and was verbally abusive towards her. The mother and child left the home and stayed with the maternal grandparents for a week. The mother says the father told her he was angry due to his medication and was going to seek counselling. The father described this event to Dr C as “a small argument”.
On 22 January 2013, the mother says that she and that the father yelled at her, stabbed her jewellery box with a pair of scissors and tipped a glass of bourbon and coke on her. When the mother was walking towards the front door with the child, the father grabbed her hair and ripped pieces of hair from her scalp. He slapped her face and spat on her. The mother went outside crying with the child and a neighbour called the police.
The application for the ADVO annexed to the mother’s affidavit is consistent with the mother’s account. It further details that:
Police were contacted by an anonymous informant. On arrival, Police saw the Victim outside the house with baby. She was obviously traumatised and terrified of the Accused. She asked for Police to leave, fearful of what the Accused was capable of doing to her if he knew she had contacted Police. The Victim told Police of what had occurred….
Photographs of the damage to the jewellery box and book were taken, including marks on the window sill and wall where the liquid had been earlier sprayed…
A paperback book owned by the Victim was ripped up by the Accused. It is totally destroyed. A jewellery box also owned by the Victim was stabbed with scissors…
…whilst Police were taking a Statement from the Victim, the Accused sent the Victim a text message stating “Just tell the Police you don’t remember anything”.
While the relevant NSW Police Records were not tendered, it is noted that Dr C recorded that while the mother and father dispute the extent of his assault, “there is evidence she did have some hair pulled out (regrowth was later observed)”.
The father was convicted of common assault and destroying or damaging property as a result of this incident. He was sentenced a two year s 9 bond requiring him to take medication and comply with the treatment recommended by a nominated psychologist. A provisional ADVO was made on 22 January 2013, restraining him from coming within 200m of the mother’s residence or approaching or contacting the mother except through his legal representative or as authorised by a parenting order.
In interview with Dr C, the father acknowledged he put a pair of scissors through the mother’s jewellery box, which he regretted straight away. He described grabbing the mother by her arms to stop her running on a slippery floor with the child in her arms, and that he had thrown a plastic cup in the sink and some water splashed on him and Ms Mercer. The father said that the mother’s initial statement was “overdramatised”. Inconsistently with his criminal history records, the father told Dr C that although he was charged with assault he had been found guilty of harassment and intimidation.
A final ADVO was made on 4 June 2013 for two years restraining the father from coming within 200m of the mother’s premises. On 29 June 2013, the police applied on the mother’s behalf to have the ADVO varied, as the mother had received 200 text messages from the father between 1 June and 20 June 2013. On 14 August 2013, the ADVO was varied to restrain the father from approaching or contacting the mother by any means whatsoever except in regards to organising and initiating access to the child the child.
The mother attended a Police station on a number of occasions in 2013 to report missed calls and numerous text messages from the father. On some occasions she said she received more than 100 text messages in one to two days. The father’ criminal history records that the father was convicted of breaching an ADVO on 24 January 2013, 3 March 2013, 14 September 2013 and 23 September 2013.
At the time of the interviews with Dr C in May 2015, it also appears that an Apprehended Violence Order (AVO) was also in place for the protection of the maternal grandparents against the father, although the details of this AVO or the circumstances which gave rise to it are unknown.
Prior to his relationship with the mother, the father was in a relationship with an ex-partner Ms F for sixteen years from around 1990 to around 2006, with whom he has an older son, G.
The father’s criminal history also records a number of domestic violence offences during the period of his previous relationship. The father was convicted of two counts of common assault and contravening an ADVO on 1 July 2001 and sentenced to a s 12 suspended sentence. The father was later convicted for common assault on 30 January 2003. The two year s 9 bond for two years required the father to comply with various conditions including “particular attention to anger management courses not to assault, molest, harass or otherwise interfere with [Ms F]…”. The father was convicted for destroying or damaging property and contravening an ADVO on 27 May 2004 and sentenced to a s 9 bond for two years and a s 12 suspended sentence for six months, including conditions he accept the guidance of a psychologist or psychiatrist to take medication. The father was convicted of destroying or damaging property on 1 November 2004 and sentenced to a s 9 bond for six months with similar conditions.
In interview with Dr C, the father stated that his relationship with Ms F was:
…“volatile from the start” and there had been “plenty” of assaults, about ten verbal ones, when he had spat in disgust on the floor in her direction and caused “malicious damage on my own property”.
He reported [Ms F] would “call the police for no reason” and officers would pick him up and “drop (him) at a mate’s”.
In October 2014, the father’s son, G, made a statement to police. Although the statement or the details of the incident are not in the mother’s affidavit or tendered documents, in interview with Dr C, it is recorded:
… [the father] has seen [the statement]. Explaining the incident, he reported [G] had been “mucking up…fourteen year old teenage boy…he stood up to me and came at me ([Mr Rourke] indicated with a raised fist)…I grabbed him and pushed him to the ground”, where [G] wrestled and swore at him.
Following this incident, he had told [G] never to do that again and, the next day, they were “fine”.
Dr C was of the opinion that the father’s inappropriate manner of responding to G’s adolescent challenge suggests his children are not protected from his own aggressive impulses.
At the time of the interviews with Dr C, the father was in a relationship with Ms H, who he had met in August 2014. Ms H was interviewed by Dr C and did not report any family violence. However, it was noted by Dr C that the father and Ms H were in the “idealistic, early style of a relationship, they have not lived together and have known each other for a very limited time”.
Given the long history of violent conduct including a number of convictions for offences against two partners, I am satisfied that the father perpetrated family violence against the mother, to which the child was exposed, and is likely to commit further family violence.
The father’s mental health and drug use
In a report prepared by Mr E, a forensic psychologist, on 9 October 2013 in association with the father’s criminal proceedings, Mr E was of the opinion that the father:
…is suffering from the following co-morbid disorders: -
· Major Depressive Disorder, Single Episode, Severe …
· Intermittent Explosive Disorder …
· Cannabis Use Disorder, Moderate…
· Borderline Personality Disorder…
Mr E expressed the opinion that the father was
…in need of further psychological treatment in order to address his personal and relationship insecurities, self defeating personality traits, poor impulse control and aggressive acting out, his symptoms of depression and posttraumatic stress and his drug abuse to minimise his risk of recidivism.
It appears from Dr C’s report that the father was also previously treated by Mr J, a psychologist. The father reported that a diagnosis of Borderline Personality Disorder had been given to him.
As previously noted, in around July 2013, the father admitted himself to D Hospital for six weeks. In interview with Dr C, the father acknowledged that two days before the end of the programme he had been asked to leave because of his abusive behaviour towards staff and clients and said that of the two nurses who complained, one was later fired and one left the hospital. He stated that he decided to go to another clinic for psychiatric treatment.
While the records are were not tendered, Dr C notes that it is recorded in the subpoenaed medical file that on 10 July 2013, in an anxiety and depression group at the hospital the father had “disagreed with most of what was said… (opining) “anger is not an emotion…he manages his anger through doing graffiti and vandalising trains and government property”.
In interview with Dr C in May 2015, the father reported that after a work related back injury in 2002 he has suffered from chronic pain.
The father reported that he currently smokes cannabis for his “nerve pain” and stated that he last used 10 weeks prior to the interview. When questioned about any problems with prescription drugs, he said that he was currently has Epilim (for “pain and anxiety”), Norflex (a “muscle relaxant”) and Lexapro (antidepressant). The father acknowledged periods of non-compliance with his prescribed medication, as he has not wanted to be reliant on it.
The father reported to Dr C that in the last twelve months he has not felt as depressed, and reported his last episode of Major Depression had occurred a few weeks previously when his pain had flared up and he had to make decisions about surgery. He thought that in the previous three months, he had probably had two to three episodes of depression and prior to this there was an episode eight months ago.
In discussing his psychiatric history, the father observed that Mr J was a psychologist and queried whether he was qualified to diagnose him with Borderline Personality Disorder. Asked about Mr E’s diagnosis of Intermittent Explosive Disorder, the father replied that he forgets about it and opined that he does not see he has a problem as he has “not done anything” and he thinks it is the paternal grandmother’s diagnosis, not his.
Dr C was of the opinion that the father’s presentation was concerning as he minimised his own history of misconduct and violence and seemed dismissive of diagnoses which did not suit him. The doctor was further of the opinion that the father has inconsistently taken responsibility for managing his mental health, including any psychological impairment from his back pain.
Dr C concluded that:
At the present time, [the father’s] history of unstable and aggressive interpersonal relationships suggest the presence of one or two DSM Cluster B personality disorders (Borderline, Antisocial and Narcissistic elements are discernible). A Cluster B personality disorder, combined with his past psychiatric and criminal history and previously discussed current instabilities in his life make [the father] unsuitable to single parent the child without supervision.
Dr C’s recommendations
Dr C recommended in her Report that the child live with the mother and that the mother hold sole parental responsibility.
The doctor also recommended that the child continue to spend time with her father in a contact centre. If the father is able to demonstrate over the next three years he has stable healthy relationships with a partner and his son G, has no further encounters with police and has resolved his chronic pain as much as possible and his then uncertain living situation, then unsupervised time with the child could be considered.
I accept Dr C’s evidence and recommendations. She is a suitably qualified expert whose evidence is not challenged. Her opinions are consistent with the father’s criminal history and reported conduct at the Contact Centre. I attach significant weight to her assessment.
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
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.
The need to protect the child from harm is to be given greater weight than the benefit of having a meaningful relationship with both parents (s 60CC(2A)).
Benefit of a meaningful relationship
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. 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”.
[3] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.
[4] (2007) Fam LR 518.
[5] [2006] FamCA 994.
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) went on to say 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.
Under the mother’s proposed orders, the child will continue to live with her and enjoy the benefit of a meaningful relationship with her. The mother’s proposed orders will not result in the child having any relationship with her father.
The first matter to consider is whether it will be of benefit to the child to have a meaningful relationship with the father, or in terms of the order proposed, whether it would be contrary to her best interests to be deprived of that relationship. Although it can generally be said that children benefit from each of their parents having a meaningful involvement in their life and the objects and principles in the Act promote this principle, this is also subject to that involvement being consistent with the child’s best interests.
This child has not enjoyed any relationship with her father for almost a year, with the last contact being when she was just under three years old. The father has a well-documented history of violent and aggressive conduct which he minimises and a presentation that indicates a personality disorder. In these circumstances I am of the view that the child would receive a benefit from an ongoing relationship with her father only under supervision until he addresses a number of concerning features of his conduct and psychological state.
There are no orders proposed in these proceedings for the relationship between the child and father to be promoted in a supervised setting. The father has not participated in these proceedings for almost a year. His last known proposal that the parents hold equal shared parental responsibility for the child and that she spend three weekends every month and half school holidays and special occasions with him could not be said to be in the best interests of the child on the available evidence. In circumstances where there is no current proposal to support the child’s relationship with her father in a manner that is consistent with her best interests there is in my view no positive benefit to her by attempting to craft orders to foster that relationship.
Need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
A significant issue in this matter is the need to protect the child from physical harm perpetrated by the father and psychological harm from being exposed to family violence.
As discussed earlier in these Reasons, I am satisfied that the father has perpetrated family violence against the mother to which the child was exposed. The father also has a history of family violence with his ex-partner Ms F. Concerningly, in interview with Dr C, the father minimised his history of violence and failed to appropriately reflect on his own misconduct.
Further, there is a concerning instability in the father’s mental health which, it is inferred from his criminal history and Mr E’s report, are associated with his violent criminal behaviour. He appears to have dismissed diagnoses which do not suit him and has inconsistently taken responsibility for managing his mental health.
The father’s aggressive conduct towards hospital staff in 2013 and Contact Centre staff in 2015 raises concerns about his behaviour. Further, on the father’s own account of the events in October 2014, as opined by Dr C, the father’s inappropriate response to G suggests his children are not protected from his own aggressive impulses.
I attach significant weight to Dr C’s opinion that the father’s:
…history of unstable and aggressive interpersonal relationships suggest the presence of one or two DSM Cluster B personality disorders (Borderline, Antisocial and Narcissistic elements are discernible). A Cluster B personality disorder, combined with his past psychiatric and criminal history and previously discussed current instabilities in his life make [the father] unsuitable to single parent the child without supervision.
I have particular regard to the father’s history of violence in partner relationships and aggression in other settings such as towards hospital staff, contact centre staff and in his relationship with his teenage son. These matters in combination with the instability in his mental health in my view give rise to an unacceptable risk the child will be exposed to family violence or be subjected to physical abuse if she were to have unsupervised time with the father. Given the father’s disengagement from the proceedings and the suspension of the Contact Centre’s service, there is no proposal which would ensure that the child is protected from harm of this type while in the father’s care.
As noted earlier in these Reasons, on the basis of the mother’s and grandparents’ responses in interviews with Dr C, Dr C’s conclusions about the allegations and FaCS assessment, I am of the view that the child is not an unacceptable risk of sexual abuse in the mother’s household.
Additional considerations
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 and factors underlying those views
As the child is only three years old, she was not interviewed by the Expert and her views are unknown.
Nature of the child’s relationship with each parent and other significant persons
The mother, as the child’s main caregiver, would be her primary attachment figure.
In the Contact Centre records for the father’s last sessions with the child on 11 July 2015, while the child took some time to settle with her father, she was observed to be “chatty, vocal” and “completely at ease with her father”. After observing the child and the father, Dr C was of the opinion that the child “related affectionately and trustingly with her father, who was appropriately responsive”. She further opined that it was probable the child’s protests about seeing the father in the contact centre resulted from the child’s awareness that her mother is not comfortable in the proximity of the father. However, the child has not spent time with her father since the Contact Centre’s service was suspended in July 2015, and it may be inferred that the relationship has been damaged given the child’s young age.
Dr C observed that the child’s maternal grandparents were loving and attentive with her, and that the child is reported to have a good relationship with her paternal half-brother G.
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
There is very little evidence in relation to decision-making for the child, but as the mother is the child’s primary caregiver and given the absence of contact between the parents it may be inferred that the mother has made the long-term decisions for the child.
The father appears to have initially taken the opportunity to spend time with the child at the Contact Centre, but through his inappropriate and disrespectful behaviour to Contact Centre staff, the service was indefinitely suspended in July 2015. The father did not make any application to the Court for alternative arrangements.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is no evidence in relation to this consideration, although it was submitted on behalf of the mother that the father does not provide any financial assistance to maintain the child.
Likely effect of change in the child’s circumstances
Under the mother’s proposed orders, there will be no change in the child’s circumstances.
The father’s last proposed orders involve a dramatic change in the child’s circumstances as his proposal would see her spend three weekends of each month and half school holidays with him. In circumstances where there has been no contact between the father and child since July 2015 and nothing is known of the current state of the relationship there would be a likely detrimental impact upon the child if she were to suddenly resume time with the father and be separated from her mother for considerable periods of time.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There is no practical difficulty or significant expense involved in the father’s last known proposal for him to spend time with the child. The mother’s proposal is for the child to spend no time with the father.
The alternate proposal that arises on the evidence, in accordance with Dr C’s recommendations, is that the child spend time with her father at a Contact Centre for three years. This would involve some expense for the parties. As the services of the Contact Centre have been indefinitely suspended and the father has not engaged with the proceedings, this recommendation was not pursued.
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
Dr C is of the opinion that the mother’s judgment about what was in the child’s best interests seemed reasonable. The doctor observed that the child presented as an “outgoing, busy girl” with “excellent language skills” and opined that the mother’s parenting of the child has been well suited to her.
Dr C further opined that the mother presented with ongoing signs and symptoms of traumatic anxiety, which become activated with thoughts of seeing the father. While this will affect the mother’s ability to co-parent the child with the father, it was not suggested it would otherwise affect her capacity to provide for the child’s needs. The doctor recommended that the mother engage with appropriate professionals to manage her mental health, presumably in relation to the mother’s anxiety.
As discussed earlier in these Reasons, there are significant concerns about the father’s mental health and stability which impacts upon his parenting capacity and necessitates supervision.
Further, as opined by Dr C, the father’s manner of dealing with conflict and failure to learn from his inappropriate and disrespectful behaviour make him a poor role model for children. His behaviour at the Contact Centre which resulted to the service being suspended also reflects a limitation on his ability to prioritise the child’s need to spend time with him in a supervised environment over his own impulse to express his anger and complaints to staff, despite being previously warned about his behaviour in April 2015.
Maturity, sex, lifestyle and background (including culture and traditions) the child and either parent
The mother presented to Dr C as a pleasant, assertive woman and appears to have a close and supportive relationship with the maternal grandparents.
As discussed earlier in these Reasons, the father stated to Dr C that he has suffered from chronic pain since 2002 and has a significant past criminal and psychiatric history. The father also reported a conflictual family background, describing being abused by his parents and stepparents. The father described his mother as “controlling, ridiculing” and an “emotional wreck” and said that he has not spoken to his father for a year prior to the interviews. Dr C was of the opinion, which I accept, that the father was “not psychologically minded and has poor insight into how his life experiences and adjustment have impacted on his parenting.”
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The father’s aberrant conduct towards the mother and inappropriate behaviour towards Contact Centre staff indicate an irresponsible attitude to the responsibilities of parenthood. The father has disengaged with the proceedings to determine the future parenting arrangements for the child.
The mother has been the child’s primary carer since her birth and the child appears to be a “very competent young girl”. In interviews with Dr C, while she acknowledged her “wish” that the child did not have to see the father, the mother has complied with Court orders and the Contact Centre records indicate the mother was supportive of the child at changeover.
Family violence relating to the child or a member of the child’s family
This issue has been discussed earlier in these Reasons and is a weighty consideration in this matter. The factor is relevant to the need to protect the child from harm, as well as the mother’s capacity to negotiate with the father if they were to share parental responsibility.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
While the mother’s proposed orders, which make no provision about the father’s time with the child may lead to further proceedings, in circumstances where the father has disengaged from the proceedings it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the child’s parenting arrangements.
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.
In Goode & Goode[6] 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.
[6] (2006) FLC 93-286.
In this matter, the mother is seeking to hold sole parental responsibility, which is supported by the ICL. The father makes no proposal as to parental responsibility.
Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, an order providing that a parent have sole parental responsibility for the child must mean that the parent would have all the duties, powers, responsibilities and authority which by law parents have in relation to child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to 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 (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 her (subsection 61DA(4)).
In circumstances where I am satisfied that the father has engaged in family violence, the presumption does not apply.
Further, Dr C was of the opinion that the mother presented with signs of traumatic anxiety, with an elevated heart rate and mild hand tremor, when she spoke about any form of contact with the father. The doctor expressed that it would be anxiety provoking for the mother to have to negotiate or mediate with the father if they were to share parental responsibility. The doctor further opined that given the father’s history of aggression to his family and others, her personal experience with the father and the 2015 letter from the Contact Centre, the mother’s fears and perceptions about the father were understandable.
In these circumstances, and given that the child will continue to live with the mother and that the father has disengaged from the child it is appropriate and in the best interests of the child for the mother to hold sole parental responsibility.
Conclusion
In considering each of the matters relating to the child’s best interests, I have attached particular weight to the primary consideration of the need to protect the child from harm, which favours the orders proposed by the mother and supported by the ICL. Other weighty factors include the nature of the child’s relationship with each parent, parental capacity and the attitude to the child and responsibilities of parenthood.
While the child and the father appear to have had warm interactions, due to the concerns discussed above, in my view, it is in the best interests of the child for any time with the father to be supervised. In circumstances where the father’s time at the Contact Centre has been indefinitely suspended and he has not participated in the proceedings or shown a willingness to make alternative arrangements to spend time with the child, it is not appropriate to make such orders for the father to spend supervised time with the child.
Having regard to all of the factors in relation to the best interests of the child I make orders as sought by the mother and supported by the ICL for the child to live with the mother and for the mother to hold sole parental responsibility.
The orders that I make are as set out at the forefront of these Reasons for Judgment.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 May 2016.
Legal Associate:
Date: 6 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Jurisdiction
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