Rusak & Manning
[2023] FedCFamC2F 11
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rusak & Manning [2023] FedCFamC2F 11
File number: PAC 3456 of 2020 Judgment of: JUDGE STREET Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – FINAL PARENTING ORDER– undefended hearing - unacceptable risk – no time Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) pt VII; ss 4, 4AB, 43, 60CA, 60CC, 60CC(2A), 61DA, 65D, 65DAA, 69ZM
Federal Circuit and Family Court of Australia Act 2021(Cth) s 190
Federal Circuit and Family Court of Australia (Family Rules) 2021 (Cth) rr 10.26, 10.27
Cases cited: A v A (1998) FLC 92-800 at 84,996
A & Z [2006] FamCA 179
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115
Academic Articles: Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249 Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 13 December 2022 Place: Parramatta Solicitor for the Applicant: No Appearance Solicitor for the Respondent: Mr Voros, Voros Lawyers Solicitor for the Independent Children’s Lawyer: Ms Hernandez, Claremont Legal ORDERS
PAC 3456 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RUSAK
Applicant
AND: MS MANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
13 December 2022
THE COURT ORDERS THAT:
1.The matter proceed as an undefended hearing.
2.The respondent mother have sole parental responsibility in relation to the child X born 2014 (the Child).
3.The Child live with the respondent mother.
4.The Child spend no time with the applicant father.
5.All orders sought in the applicant father’s application, dated 13 July 2020, are dismissed.
6.The ICL in this matter is discharged.
7.The Court reserves its reasons for the above orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These proceedings were commenced on 13 July 2020 by the applicant seeking parenting orders under pt VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the child X, born 2014 (“the Child”). Pursuant to orders made on 13 October 2022, the matter was fixed on 13 December 2022 for further directions. Orders were concurrently made for the applicant to file an amended application together with an affidavit, explaining their failure to comply with the Court’s orders dated 24 June 2022 and 2 August 2022, and why the matter should not proceed as an undefended hearing. No such amended application has been filed, no such affidavit has been filed, and the applicant has failed to appear.
CHRONOLOGY
The Court relies on the chronology as it was set out in the Independent Children Lawyer’s (“the ICL”) case summary document dated 25 June 2021:
Date Event 1966 Father born 1979 Mother born 2012 Parents commence relationship 2012 Parents commence living together 05/07/2013 Parents separate according to father. 07/2013 Parents separate according to mother Mid-2013 Parents ceased living together 2014 X born Late 2014 Father first meets X with the other present. Early 2017 Father alleges that mother stops him from seeing X. Early 2017 Father applies for Legal Aid Late 2017 Father granted S60i certificate because he alleges that mother refused to engage in mediation Late 2017 Father alleges receiving two phone calls form he mother. Mother advises that she had changed address. Father alleges that this is when he became aware that she had relocate to Queensland Late 2017 Father applies to FCC in Parramatta to spend time with X Early 2018 Mediation happens. Father alleges that from this time he was able to spend time with X for a couple of hours a fortnight with the other present. This continued for about 6 months Early 2019 Mother advises father that she was going on a cruise with X and needed a passport. Father agreed to sign the passport Early 2019 Mother alleges that Judge dismissed the father’s application as he would continuously not show up to Court. Early 2019 Father becomes aware that court proceedings were dismissed Mid-2019 Parents attend mediation. Father alleges that mother agrees to recommence time. Father starts seeing X every second Sunday for 2 hours with mother present 2020 X commences kindergarten Early 2020 Father alleges that mother tells him that she thought she was in love with her older children’s father and wanted to pursue a relationship with him. Mid-2020 Court orders for father to do CDT testing within 28 days Late 2020 Father attended to CDT testing Late 2020 Mother alleges that father sent her a text message with words “Fuck you see you in court” Late 2020 Parents attend mediation. 09/12/2020 Mother alleges receiving text message from father “I have $150 if you need it, come over with [X] and get it” 10/12/2020 Mother alleges receiving text message from father “why you not answering” 15/12/2020 Mother alleges receiving text message from father “you think your so clever” 19/12/2020 Mother alleges receiving text message from father “would you answer if I ring’ 12/12/2020 Father starts spending time with X again supervised by the mother from a distance Late 2020 Mother alleges receiving text message form father “I still love you”, “I will feel I need to be with you there always crazy love [X] have a great night” 01/01/2021 Mother alleges receiving text message from the father “Happy new year sweet heart” Early 2021 Mother alleges taking X to B Park as per the court orders and father did not show up and the mother did not hear from him. Early 2021 Mother alleges having text conversation with father;
Father – “[Ms D] asked do you and [X] would like lunch at her place and a swim she bought a car so she don’t drink no more”
Mother – “I appreciate the offer but can’t go against court orders. By the way what happened to you last Sunday. I was waiting out the front of [B Park] at 1pm and you never turned up for the visit”;
Mother – “can you do a visit today at the park if you want to but I’m in the middle of mowing my laws at the moment so just let me know”
Father – “my car is playing up, sorry got to fix it up. I’ll see her next fortnight”
Mother – “you could have texted me to let me know you weren’t able to make the visit”.Early 2021 Mother alleges weather was too hot for park so parents agree to go to City C Leisure Centre. Father arrived with his sister. Mother suspected father to be affected by alcohol. Father denied drinking. Early 2021 Mother alleges receiving text message from the father “I still care for you But I worried for [X] when she gets older hope to see her tomorrow’ Early 2021 Father alleges that the mother did not present X for time Early 2021 Father texts the mother to reschedule the visit to the week after due to heavy rain and the visit location being an outdoor venue. Mother did not respond. Early 2021 Father attended B Park. The mother and X were not there. Father called and texted mother with no response. Early 2021 Father messaged the mother asking to see X on Easter Sunday. He did not receive a response. 01/04/2021 Court notes that the mother will facilitate time on 3 April 2021 03/04/2021 Father attended B Park. The mother and X did not attend. Father waited for half an hour. The father texted the mother on 5 April 2021 asking “what the hell is going on” and on 6 April 2021 the mother responded. Father alleges that mother criticised him about not responding to her text message in a timely manner and raised false allegations about his alcohol consumption. 07/04/2021 Father messages the mother requesting to see X on 11 April 2021. The mother responded the following day “please don’t let her down” 11/04/2021 Father spends time with X at B Park whilst the mother supervised.
Additionally, the Court relies on the chronology of further events;
Early 2021 Father and mother agree to meet at a McDonald’s in Suburb F. Father left after six minutes spent with X. Mid-2021 The father sent a text at 8:35PM saying he would not attend the following day’s scheduled visit with X. Mid-2021 The mother texted the father to confirm whether he would be attending the scheduled visit that day. The father responded that he would not attend. Mid-2021 Court ordered father to undertake carbohydrate deficient transferring test and liver test once every six weeks. Mid-2021 The mother texted the father to confirm whether he would be attending the scheduled visit that day. The father responded at 12:45PM that he would not attend. Mid-2021 The mother texted the father to confirm whether he would be attending the scheduled visit that day. The father did not respond. Mid-2021 The mother texted the father to confirm whether he would be attending the scheduled visit that day. The father did not respond. Mid-2021 Mother stops taking X to the reserve. Mid-2021 Father texted the mother asking to see X. Mother agreed to 2 September 2021. 01/09/2021 Father texted the mother saying he could not make the scheduled visit the following day. 02/09/2021 Father spoke to X on the phone. 05/11/2021 Father texted the mother requesting to call X the following day. 06/11/2021 Father did not attempt to contact X. UNDEFENDED HEARING
The respondent has moved for the proceedings to proceed as an undefended hearing. The Court takes into account the following principles in relation to an undefended hearing.
In determining whether or not to proceed as an undefended hearing, the Court has taken into account the principles identified in Lanceley & Lanceley [1994] FamCA 94 as affirmed in A & Z [2006] FamCA 179 at paragraph 66 and Zane & Allen [2008] FamCAFC 115.
66. The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
“A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly ‘undefended’, and it would be a misuse of language to describe them otherwise. They certainly could not be described as ‘defended’.”
The Court has taken into account the overarching purpose and objectives in s 190 of the Federal Circuit and Family Court of Australia Act 2021(Cth). The Court is satisfied that there has been default under r 10.26 of the Federal Circuit and Family Court of Australia (Family Rules) 2021 (Cth) enlivening the powers under r 10.27.The Court is satisfied that this is an appropriate matter in the interests of the administration of justice in which to proceed as an undefended hearing and has accordingly made an order to that effect.
The Court is satisfied that there has been default in complying with the Court’s orders by the applicant in the present case of such a kind that makes it clear that the matter should, in the interests of the administration of justice, proceed as an undefended hearing. The Court is satisfied on the evidence that has been read, being the affidavit of service of Ms Manning of 8 November 2022, and the affidavit of 4 November 2022, and the affidavit of 27 October 2022, and the family report dated 24 June 2022, which was marked exhibit A.
The Court is satisfied that the applicant was served with both the notice of orders made by this Court on 13 October and the amended response to final orders by the respondent. The Court is satisfied that the applicant has been afforded procedural fairness in respect to being on notice that the matter may proceed as an undefended hearing. The amended response filed on 27 October 2022 identified seeking orders that; the mother have sole parental responsibility of the Child, that the Child live with the mother, that all orders in the father’s application be dismissed and any other order that the Court sees fit.
The ICL identified a possible different order to the effect that; the Child spend time with the father as agreed between the mother and father in writing and, if failing agreement, shall spend time with the father at the Suburb G Children’s Contact Centre for a period of two hours every second weekend at times and dates made available by the centre with the father being responsible for any costs associated with the father spending time at that centre. That order was not supported by the applicant, and the Court raised that the matter appeared to be one in respect of which a no time order should be made. The ICL did not oppose the making of a no time order.
The Court indicated that it was satisfied that; this was an appropriate matter in which to proceed as an undefended hearing, the Court would make orders 1 to 3 in the amended response by the respondent, the Court would make a no time order, the Court discharge the ICL and reserve its written reasons. Accordingly, the Court pronounced orders in the form of orders 1, 2 and 3 as stated in the respondent mother’s response and made a no time order and discharged the ICL, having ordered that the matter proceed as an undefended hearing.
EVIDENCE
The affidavit evidence of Ms Manning identified that there had been consent orders made on 14 December 2020 for two hours supervised time between the father and the Child in Suburb E each alternate Saturday. The respondent identified, since the making of those orders, that the child has not seen the father on a regular basis because he has stopped attending visits. The respondent deposed that there was irregular contact between December 2020 and May 2021. It was identified that the applicant often did not stay for the full two‑hour period and repeatedly failed to attend visits, leaving the child waiting for him.
On 23 May 2021, the parties agreed to attend a particular site at which the mother arrived with the child and a niece. The respondent expressed a concern as to the absence of quality time by the applicant with the child and, in response, the applicant left the visit after six minutes with the Child. The next scheduled visit was on 6 June 2021. At 8.35 pm the evening before the scheduled visit, a message was sent by the applicant saying “forget about tomorrow take great care of our [X] I will c you at court unfortunately.” The applicant did not attend the visit the following day.
On 20 June 2021, the respondent texted the applicant to confirm his attendance for the visit at 1 pm that day with the applicant responding that he would not attend. On 4 July 2021, the respondent mother again texted the applicant father, asking to confirm his attendance for the visit that day. At 12.45 pm, the respondent received a text that the applicant could not make it. On 18 July 2021, the respondent texted the applicant, asking whether he would attend for the visit that day in which he did not respond. On 1 August 2021, the respondent sent a text message to the applicant asking if he would attend the visit in which he did not respond or attend. On 1 July 2021, this Court ordered the applicant to undergo carbohydrate deficient transferrin test and liver test once every six weeks to test whether he was regularly consuming alcohol at an excessive level. The applicant has failed to comply with those orders made by the Court.
On 30 August 2021, the applicant sent a text message seeking to see the child, and the respondent identified a willingness to attend at 1 pm on Thursday 2 September 2021. On 1 September 2022, the applicant then sent a text that he could not make it. The applicant failed to engage with the Child on 2 September.
On 5 November 2021, the applicant asked to call his daughter, but then made no attempt to contact her the following day. The applicant then sent a text message on 16 November 2021 stating “You won bitch good luck with our daughter.” In December 2021, the respondent received a voicemail from the applicant saying he was not going to pursue his application before the Court any further.
In June 2022, the applicant suggested that he would be engaging a private lawyer, but this did not occur. The respondent stopped taking the Child to the reserve in or around August 2021, as the respondent observed it upsets the Child to wait for her father in circumstances where he does not show up. The last supervised visit was at a McDonald’s restaurant in Suburb F on 23 May 2021. Between 29 June 2022 and 23 September 2022, the respondent received no text messages from the applicant. On 2 September 2022, the applicant did speak to his daughter. There was a further text message from the applicant on 23 September 2022. The next contact was on 15 October 2022 where the applicant said “One day [X] will know everything.”
THE FAMILY REPORT
The family report, dated 9 May 2022, recommended that the respondent hold sole parental responsibility and recommended the child spend supervised time with the applicant in a contact centre “at times to which he can reasonably commit”. Materially, the report said:
If this is not possible, then it is recommended that [X] spend no time with [Mr Rusak].
The family report identified the infrequent and irregular contact between the applicant and the Child. The report identified that the Child will likely experience this as rejection and abandonment and may blame herself for this. The report identified when children feel rejected they are more likely to become anxious and insecure and may start to have low self‑esteem and possibly depression.
The report referred to the Child’s plea for a normal dad and a normal life. The family report writer noted that it would not be ideal for the Child to experience time with the applicant if there is ongoing tension between the parents as this may make the experience both less pleasant and possibly more anxiety-provoking. The report also referred to the allegations concerning the applicant’s use of alcohol and drugs and the apparent failure of complying with testing orders, reinforcing the fears of the respondent that the applicant does not value his ongoing relationship with the child sufficiently to comply with those orders.
The family report writer identified the significance of the consequences adverse to the child including the assumption the applicant is abusing alcohol and drugs, which would diminish his emotional and physical availability and give rise to safety features, including risk in relation to driving, inappropriate matters of discipline and injury from supervisory neglect. The report identified the importance of the applicant demonstrating that he is not drinking and abusing drugs, which may constitute a danger to the Child. There is also concern expressed as to the applicant’s alleged mental health status.
THE LAW
The Court has taken into account the principles in s 43 and s 69ZM of the Act. The Court has taken into account the statutory pathway in Goode v Goode [2006] FamCA136 at paragraph 65 of that judgement.
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of pt VII. These are to ensure, as stated in Section 60B(1) of the Act, 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 arising 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.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly 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 considerations by the Court are identified in s65DAA of the Act.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act. The Court has also taken into account s60CG of the Act to ensure the orders do not expose a person to an unacceptable risk of family violence. Family violence is defined in s4AB of the Act and abuse is defined in s4 of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child 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.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “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 to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Loddington at [173] Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
The Court has also taken into account that, in applying the primary considerations, greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In determining the best interests of the child, the Court has taken into account the whole of the provisions of s 60CC, including the additional considerations. The Court is exercising its power to make parenting orders consistent with s 65D of the Act. The Court has considered whether this is an appropriate matter in which there should be equal shared parental responsibility under s 65DAA of the Act.
FINDINGS
Given the applicant’s failure to engage in these proceedings and the neglect apparent from the evidence, the Court finds under s 61DA of the Act that the presumption does not apply. This finding is supported by reasonable grounds in believing that the applicant has engaged in family violence by way of neglect and failure to engage with the Child.
The Court finds that joint parental responsibility would give rise to an unacceptable risk of continuing neglect by the applicant that is likely to cause serious emotional harm to the child. The Court also finds that there is an unacceptable risk should the applicant be still using drugs or alcohol that gives rise to an unacceptable risk of danger to the child from; driving affected by drugs or alcohol, emotional or physical harm from an impaired ability to engage with the Child and a real risk of further emotional harm to the child. Having found that the presumption is rebutted, the Court has then turned to consider whether this is an appropriate matter in which to make orders as suggested by the ICL to facilitate agreement between the applicant and the respondent for time to be spent and for alternate weekend time.
Orders to the effect proposed by the ICL may well have been appropriate had the applicant engaged in the proceedings and identified a commitment to discharging his parental responsibility obligations to the Child. The continued failure of the applicant to participate in the opportunities of visits with the Child and to engage with the Child is causing emotional harm and is a form of family violence. The failure to comply with the Court’s orders in relation to drug and alcohol testing supports the inference that there is a real risk to the Child from unsupervised time, in circumstances where the applicant may well have a continuing drug or alcohol problem. That risk could give rise to both physical and emotional harm and is an unacceptable risk.
It is in these circumstances that the Court is not persuaded that this is an appropriate matter in which to make any order other than a no time order, which the Court notes was within the recommendation made in the family report, in circumstances where it appears that the applicant has not reasonably committed to the spending of time with his child. It is for these reasons the Court made the orders pronounced on 13 December 2022.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 9 January 2023
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