Russell and Purdey

[2013] FamCA 865

FAMILY COURT OF AUSTRALIA

RUSSELL & PURDEY [2013] FamCA 865

FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time – best interests – child to live with the mother and spend supervised time with the father. 

Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 61DA; 62B; 65D; 65DA; 65DAA; 69ZW

Buljubasic v Buljubasic (1999) FLC 92-865
Allesch v Maunz (2000) 2003 CLR 172
Haydon v Bennett & Anor [2012] FamCAFC 89
Sexton v Sexton [2012] FamCAFC 218

APPLICANT: Mr Russell

RESPONDENT: Ms Purdey

INDEPENDENT CHILDREN’S LAWYER: Ms Kathleen Berck, Solicitor

FILE NUMBER: BRC 1520 of 2012

DATE DELIVERED: 5 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Brisbane

JUDGMENT OF: Berman J

HEARING DATE: 15 October 2013

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nicole Martin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

Orders

1. That all previous parenting orders be discharged.

2. That the child, B born … 2003 (“the child”), reside with the Mother.

3. That the Mother shall have sole parental responsibility in respect of decisions concerning the child’s long-term care, welfare and development.

4. That the child spend time with the Father upon such terms and conditions as may be agreed, but in any event, subject at all times to supervision upon such terms and conditions as the Mother at her sole election shall determine, on not less than four (4) occasions to take place on either the first Saturday or Sunday of each calendar month over a period of six (6) consecutive calendar months from the date of this Order.

5. That provided the Father shall spend time with the child in accordance with paragraph (4) hereof, then such time as provided for therein between the Father and the child for each consecutive six (6) month period until the said child reaches the age of 12 (twelve years).

6. If the Father shall not spend time with the child in accordance with paragraph (4) hereof, in that he shall spend time with the child on less than four (4) occasions, then save and except with the express consent of the Mother, the child shall thereafter spend no time with the Father and the Father be restrained and an injunction granted restraining him from seeking to communicate with and/or to come into physical contact with the said child.

7. That upon the child reaching 12 (twelve) years of age, then the Father shall spend time with and communicate with the child subject to her wishes.

8. That the Mother shall facilitate the child to communicate with the Father at all reasonable times.

9. That the Mother shall advise the Father of any major long-term decision in respect of the said child.

10. That the Order for the appointment of the Independent Children’s Lawyer be discharged.

11. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Purdey 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 BRISBANE

FILE NUMBER: BRC1520 of 2012

Mr Russell

Applicant

And

Ms Purdey

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting issues in respect of the child, B born in 2003, now aged ten years (“the child”).

2. By amended initiating application filed 8 August 2012, the father sought extensive orders in respect of parenting issues and additionally, property orders.  The property proceedings were finalised by consent on 23 May 2012.  The matters that remain for determination arise in respect of the parenting orders sought by the father and the orders as set out in the amended response filed on behalf of the mother on 6 September 2012.

3. By way of his application, the father seeks orders that he and the mother have equal shared parental responsibility and in addition, he seeks orders that the child shall live with the mother but that he shall have regular time with the child on each alternate weekend, half school holidays and on other occasions.

4. The orders sought by the mother are in stark contrast to those sought by the father.  The mother seeks that she have sole parental responsibility and that the child shall live with her.  Other than a concession that the mother will keep the father informed of major long-term decisions in respect of the child, the mother seeks that there shall be no time spent nor communication between the child and the father.

5. It was at the conclusion of the proceedings in circumstances that will become apparent, that agreement was reached between the mother and the independent children’s lawyer (“ICL”) seeking orders substantially in terms of the orders now pronounced.

court history

1. The proceedings were transferred to the Family Court by way of order of

   
   

   7 June 2012 and was designated a “Magellan” matter pursuant to the orders of Registrar Brooks made 26 June 2012.

2. Interim parenting orders were made by Principal Registrar Filipello on

   
   

   11 September 2012.  Those orders provided for the parties to have equal shared parental responsibility for the major long-term issues in respect of the child, for the child to live with the mother and for the child to spend time with the father on a supervised basis at a contact centre.  These orders remain in place as at the date of the trial.  The extent to which the father has either complied with the orders or participated in the opportunity to spend time with the child as provided for in the orders, is a matter of some significance. The father was represented.

3. The father did not attend the trial.  His non-attendance is against the background of the father having representation before Principal Registrar Filipello upon the making of the consent orders on 11 September 2012.

4. On 20 February 2013 the father was again represented and orders were made for the parties to attend a conciliation conference but with a further directions hearing before Registrar Brooks on 26 June 2013.  On that occasion the father appeared in person and without representation (by telephone link) and trial directions were made by the Registrar which set out an appropriate trial regime for the filing of any amended application and response, affidavit Jial, subpoenae and a request pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) to the Director-General of the Department of Communities, Child Safety and Disability Services (“DoCS”) for the purposes of obtaining an update to the Magellan Report. The matter was then listed for a compliance hearing before Registrar Brooks on 28 August 2013.

5. On 8 August 2013 Registrar Brooks made an order in chambers listing the matter for trial at on 15 October 2013 with three days allowed.  Further consideration of the matter occurred before Registrar Brooks on 28 August 2013 where it was noted that there was no appearance on behalf of the father and general orders were made for an extension of time for the parties to comply with certain of the trial direction orders made 26 June 2013.  Importantly, the following notations were made:

   1.        The matter remains listed for trial commencing 15 October 2013.

   2.Interviews for updated family reports now scheduled for 15 September 2013 as the father did not attend previously scheduled interviews.

   3.        The father did not appear today.

   4.        The father has filed no Jial in accordance with prior orders.

6. I am satisfied that notwithstanding the father was not in attendance before the Registrar on 28 August 2013, he was properly advised of the orders made by the Registrar following on from the hearing.  I am also satisfied that the father was aware of the trial date and that the father’s non-attendance on the scheduled interviews for the preparation of a family report is without proper explanation.  That finding is reinforced by the rescheduling of the interviews for the preparation of the family report for 15 September 2013.  As will be seen, the father did not attend the newly scheduled interviews.

7. As noted the father did not attend the trial.  Communication was made with the father on 14 October 2013, wherein he advised that he had no intention of attending the trial.  An email was forwarded to the Court which appears as part of the Court record (but not by way of an application in a case with an affidavit in support).  The email is without detail but advises that the father is suffering from “Post-Traumatic Stress Disorder”.  There is no detail or particulars given in the email, nor is there any explanation for the father’s non-attendance in terms of the original and rescheduled appointments for the preparation of the family assessment report, nor for the non-compliance with the trial direction orders.

8. The lack of engagement in the proceedings appears deliberate, but in any event, is without any explanation.

9. Whilst in the ordinary course of events, I consider that I am entitled to have scant regard to correspondence between a litigant and the Court, and in a general sense I am persuaded that I need to consider the particular circumstances of the case and the nature of the communication.

10. In Buljubasic v Buljubasic (1999) FLC 92-865 Lindenmayer J made the following observations at:

    [29]… I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. While it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.

    [30]Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.

11. If the email communication had been more expansive and could not be seen against the unfortunate background of the father effectively taking no part in the proceedings, and importantly the family assessment report process, it may have been appropriate to consider a further investigation of the email communication.  That is not the course that I consider is appropriate in this case.  Even if I were to place more weight on the email communication, the complete lack of detail does not assist the Court either in determining whether any non-attendance by the father is for good and proper reasons, nor importantly, if the matter were to be adjourned to what date and in what circumstances.

12. I also think it proper to consider the significant and serious issues that need to be the subject of determination and the strong submission of counsel for the ICL that the interests of the child would be served by the proceedings being concluded.  Having given careful consideration to the need to ensure that the father is afforded procedural fairness and natural justice, but also that the mother is entitled to have the proceedings heard and determined in circumstances where she has complied with all court orders and directions, I have with little hesitation determined the matter should proceed in the absence of the father.

documents relied upon

1. The mother relies upon the following documents:

   ·    Amended response to initiating application filed 6 September 2013.

   ·    Trial affidavit of mother filed 21 August 2013.

   ·    Affidavit of Mr C filed 21 August 2013.

2. Documents relied upon by the ICL:

   ·    Affidavit of Ms D (Regulation 7 report writer) annexing family report dated 9 August 2012 filed 27 August 2012.

   ·    Affidavit of Ms D annexing update family report dated 16 September 2013 and filed 22 September 2013.

   ·    Affidavit of Dr E (psychiatrist) filed 28 February 2013.

evidence of father

1. The father did not comply with any trial directions and accordingly there is no affidavit Jial that the Court would be able to consider on his behalf.

2. Notwithstanding that the father plays no part in the proceedings either by way of his physical presence or in terms of any affidavit Jial that the Court is able to consider, nonetheless I do not consider that this matter is dealt with appropriately by in effect dismissing the father’s application summarily and making orders in default. It is not as simply resolved by finding that the apparent failure to prosecute the action by the father entitles me to make a parenting order as a result. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that it is apparent how I have exercised and discharged the need to give proper consideration to s 60CC of the Act.

3. I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 2003 CLR 172, Sexton v Sexton [2012] FamCAFC 218 and Haydon v Bennett & Anor [2012] FamCAFC 89.

background

1. The parties have experienced what is clearly a tumultuous relationship over a period of about 10 years.  It is highlighted by numerous allegations of the mother having found pornography in the father’s possession, allegations of infidelity and further allegations that the father was frequently in the possession of and would sell cannabis which led to police raids on their various homes. 

2. Following the parties’ separation on a final basis, the father, through having instituted the proceedings in respect of parenting, failed to comply with the directions of the Court, specifically in relation to his time spent with the child, which was ordered by consent to occur at a contact centre.  This is a matter which will be the subject of particular mention.

3. The parties met in late 2000 and according to the evidence of the mother, commenced a relationship in mid-2002.  They moved in together in the same year but ceased cohabitation in about October 2002 after the mother found pornographic Jial and newspaper clippings relating to the father’s involvement with and/or interest in transsexual prostitutes and brothels.  According to the mother, when the father was confronted with this information he made initial denials.

4. In February 2003, the father moved into a property owned by the mother after, on the mother’s case, the father was evicted from his home after being charged with possession and cultivation of cannabis.  The father then left the property in May 2003, after the mother alleged she again found pornographic Jial in his possession.  One week later the father returned to the property to live.

5. Following the birth of the child, the mother and the father recommenced their relationship and registered as a de facto couple with Centrelink.  Shortly thereafter in July 2003, and having determined that the father had been in a relationship whilst the parties were dating, the mother terminated the relationship with the father, and requested that he leave the home.  There was conflict, but ultimately the father refused to go and the parties remained living together albeit, unhappily so.

6. On 20 January 2005 the mother’s home was raided by the police who found cannabis seeds and cannabis leaf on the property.  The father admitted that the seeds and leaf was his and he was fined $800.  The mother asked the father to leave but other than a brief separation, the parties remained together. 

7. In August 2005 the mother purchased a property at F Town and the parties moved into the property together with the children.  In September 2005 the parties recommenced their relationship.

8. Further periods of separation occurred in 2006 and 2007 as a result of the mother having found pornography on the father’s computer and in circumstances where she was concerned that the pornographic images and information may have been able to be accessed by the children.

9. It would appear that there was some reconciliation of the differences of the parties, in that in late 2009 the mother took employment on a property

   
   

   100 kilometres from the F Town home, which effectively left the father as the primary caregiver of the infant child B, but also the child, G born in 1999, being a child of a former relationship.

10. In 2010 the mother alleges that G made disclosures to her that he had found the father viewing pornography at a computer and masturbating late one night in circumstances where demonstrably his behaviour was able to be observed by the children.  The mother ceased working away from home as a result of these allegations and resumed her role as the primary caregiver for the children.

11. Consistent with the history of the matter, the parties separated finally in June 2011 as a result of the mother finding pornographic Jial hidden in the shed in the F Town property in April 2011.  The father was confronted by this, the father as a result caused damage to the bedroom door of the property and ultimately he moved out of the family home into rental accommodation in the Warwick area and by agreement between the parties, he spent time with G and the child.

12. In August 2011 the mother alleges that she found pornographic emails in the inbox of a mutual email account of the parties’ and that some of the titles of the emails related to bestiality and children.  Consequent upon this discovery, the mother refused to allow overnight time between the father and the children and in September 2011, following an allegation that the father was selling drugs from his rental accommodation in Warwick, the mother stopped the father from having unsupervised time with the children.

13. In October 2011, the police raided the father’s home and found cannabis at the property.  The mother alleges that her home was broken into some days later and alleges that the father was seen on the property.  The mother also alleges that as a result of a malicious complaint by the father, her home was the subject of a police raid in early October 2011, but no drugs were found.

14. The mother’s home was further broken into and she and the children moved to H Town, New South Wales, in November 2011 and it was there that the child B first made disclosures that she had been sexually abused by the father.

15. On 15 February 2012 the mother’s home was broken into for a third time in circumstances where she alleges the father was seen at the property.

16. The father commenced the proceedings on 23 February 2012. 

17. On 21 and 25 March 2012 the mother asserts that the child B made further allegations that the father had sexually interfered with her and on 27 March 2012, the child was interviewed by the I Town Police following an earlier contact with DoCS.

18. On 15 April 2012 further disclosures were made by the child B and she was thereafter taken to a medical centre for examination and to the J Hospital where she was diagnosed with a possible urinary tract infection.

1. Orders were made for the preparation of a family report and initial interviews took place on 9 August 2012 attended by both parties in terms of the preparation of the report by Ms D dated 9 August 2012 (“the first report”).

2. The first report of Ms D recommended that the father spend supervised time only with the child the child and for a period of up to two hours once per month.  It was also recommended that the father undergo a sexual risk assessment.  Consistent with the recommendations of the report, orders were made by consent on 11 September 2012 that the father spend supervised time with the child at the K Town Contact Centre once per month. 

3. In preparation for the first session, the children G and the child had counselling with L Counselling Service.

4. It is reported that the first supervised contact which occurred on 13 October 2012 was positive.

5. There then followed a significant history of opportunities for the father to spend time with the children (in particular the child), but which generally did not occur because of the non-attendance by the father or his determination not to comply with the terms and conditions as set out by the Contact Centre.

6. The history of time spent between the father and the children or not as the case may be, is set out as follows:

   ·    13 October 2012.  First supervised contact.  All parties attend and it is reported to have been a positive visit.

   ·    10 November 2012.  Second contact visit but cancelled by father.

   ·    8 December 2012.  Third contact visit but cancelled by father.

   ·    5 January 2013.  Fourth contact visit but cancelled by father.

   ·    20 February 2013.  Fifth contact visit but cancelled by father.

   ·    2 March 2013.  Sixth contact visit but cancelled by father.

   ·    30 March 2013.  Seventh contact visit but postponed due to the Easter holidays.  Father did not seek to reschedule.

   ·    27 August 2013.  Eighth contact visit occurs but in circumstances where the father acts inappropriately towards the child by denigrating the mother to her and referring to the proceedings.

   ·    25 May 2013.  Ninth contact visit.  Cancelled by the Contact Centre in circumstances where the father does not call 72 hours prior to the visit to confirm his attendance.

   ·    22 June 2013.  Tenth contact visit.  Cancelled by the Contact Centre in circumstances where the father did not confirm his intention to attend 72 hours prior to the visit.

   ·    20 July 2013.  Eleventh contact visit.  Cancelled by the Contact Centre in circumstances where the father did not confirm his attendance 72 hours prior to the visit.

7. Against the backdrop of this history, the parties were to attend upon Ms D on 20 August 2013 for the preparation of an update family report.  The father failed to attend the visit.

evidence of mother

1. The mother attended the Court proceedings and in support of the orders she sought filed in the Court a case outline document on 16 September 2013 and a summary of argument on 10 October 2013.  Notwithstanding that the father was not present, I considered it appropriate that the mother be sworn in and that she present her evidence with formality.  Opportunity was given to the counsel for the ICL to cross-examine the mother.  That did not occur.  There was an opportunity for me to ask the mother some brief questions in respect of her change in attitude between the initial response filed by her and the amended response.  She was also asked questions as to her current attitude to the father spending time with the child. 

2. Whilst obviously the enquiry of the mother was not searching, nonetheless her demeanour, the preparation of the case outline and summary and her general presentation, gave me significant confidence to have regard to those matters raised in her trial affidavit that were both relevant and in a general sense, admissible.

3. I was mindful of the risk of simply accepting the uncontested evidence of the mother in circumstances where the father was not present.  I am however entitled to take into account that counsel for the ICL did not cross-examine the mother in circumstances where the opportunity existed to do so.  In short, I place significant weight on the matters expressed and the evidence given in the mother’s trial affidavit.  In particular, I accept the mother’s evidence as to the following matters:

   ·    The discovery by the mother of significant obsession by the father with pornography.

   ·    The allegations made by G at paragraph 89 namely:

   89.Soon after [Mr Russell] had moved out at separation, [G] said words to the effect “I don’t know how to say this but [Mr Russell] was watching this stuff on television that made me sick”.  I asked [G] “what do you mean?”  [G] was hesitant to tell me and said “I can’t tell you this.”  I encouraged [G] to talk to me.  [G] then said words to the effect “there was a man lying on his back and the other man was sucking his old fella and then there was a man putting his old fella in that fella’s bum”.  [G] refers to a penis as “old fella”.  [G] said that he had been in his room and the door was slightly ajar.  The television can be seen from an angle from [G’s] room and that’s the end of that.

   ·    That the mother discovered in a joint email account the father’s “adult friend finder” account which refers to matters of his sexuality.

   ·    The mother’s allegations of drug use by the father both personally and for sale.

   ·    The allegations of the mother in respect of violent and aggressive behaviour by the father but in particular, post-separation which culminated in an incident in September 2011 where at paragraph 100 the mother records:

   100.[Mr Russell] swore at me and yelled at me in a raised voice.  He called me “a whore” and said I was “too fucked in the head to look after children”.  [Mr Russell] said “I’ll destroy you and your life”.  [Mr Russell] told me that he would turn [Mr M] against me and have the kids taken away from me.  I recall that [Mr Russell] said words to the effect that he said “I will walk through you and over you and do whatever it takes”.  I recall that [Mr Russell] stated he had been telling everyone possible that I was an abusive mother.  He said that [G] “is a pig”.  [Mr Russell] was in a rage.  I felt very fearful of [Mr Russell] after this phone call and have never experienced him this angry.

   ·    That between 8 December 2011 and 20 April 2012 the father forwarded to the mother aggressive and threatening text messages.

   ·    Without making a finding that the father behaved sexually inappropriately with the child the child, I accept that the mother sets out accurately the allegations and disclosures made by the child (see paragraphs 125 to 148 inclusive).

evidence of Mr C

1. The witness and the mother commenced a relationship in August 2012.  The witness was a regular visitor in the home of the mother and accordingly, spent increasing time with the child B and also G.  It appears that the children took Mr C into their confidence.  The strength of that relationship and the extent to which his involvement with the family appears to have had significant and lasting benefits, is the subject of favourable comment by the family consultant.

2. The witness alleges that the children would regularly disclose to him that they had observed the father watching pornography in circumstances where there appeared to be no attempt to shield the children from the pornographic interests of the father.

3. The children expressed their fear of the father.  The witness was also in a position to observe the significant distress and fear of the child leading up to and following upon the supervised contact periods.

4. Whilst much of the affidavit of the witness is inadmissible (hearsay upon hearsay and opinion), I accept the accuracy of the observations of the witness, in particular in circumstances where the counsel for the ICL did not require the witness for cross-examination.

evidence of Ms D – family consultant

1. Ms D has prepared two reports.  The first report was published on 9 August 2012.  On that occasion all parties participated in the assessment.  The father denied any current involvement with illicit drugs.  He asserted that he did not smoke marihuana and whilst he admits a recent police search took place, he notes to the family consultant that no drugs were found. 

2. The father denies any inappropriate sexual misconduct with the child and in order to provide an explanation as to why the allegations might have arisen, the father raises a vague allegation of a concern by the father’s brother that G may have been “inappropriate” to the child.

3. The father, does however admit, to viewing pornography on a regular basis, but asserts that it is age appropriate.  In addition, the father considers that the mother suffers from depression and anxiety which he promotes as an explanation for the nature and extent of the serious allegations that she makes directed to him.

4. G, when asked why he was not seeing the father said, “I don’t really want to see him because he was really mean to me.  He would turn the child against me…He used to watch really violent movies and also yell at her [the mother] and me. Sometimes he would be really nice to her and not me.  He’d pack the child’s lunch and not any for me.  He sent us to school in dirty clothes because he was so lazy.  He grabbed me by the neck, threw me in my room, locked the door and go and smoke and play X-Box…He used to make me feel like nothing”. 

5. B reported being scared of the father.  She reports that her father is, “really mean to my mum and [G], well mean to my mum when I showed her the key to [Ms N’s] house…he watched horror movies and sexual movies.  We laid on the floor and he’d sleep naked and he’d put on scary movies, Dad and I were in the lounge room.  [G] was in his bedroom…he asked if I wanted to watch a movie, it was scary, we were lying on a mattress…he had no clothes on.  It was weird, I don’t know why he did it…I had PJs on”.

6. The family consultant was clearly concerned that the father may pose a risk to the children.  It was noted that the allegations that had been made were the subject of denial by the father.  It is for that reason that the family consultant recommended that the father engage in a Sexual Risk Offender’s Assessment in order to assist the Court in determining the current level of risk.

7. The second report was published on 16 September 2013.  It was noted that the father failed to attend.  I have no doubt that the family consultant took all reasonable steps to ensure that the father was aware of the assessment process and was able to attend if he was so minded.

The Father

1. It was an important consideration for the family consultant that in the past two years the father had spent time with the child on two occasions only.  As a result she submits:

   The father’s demonstrated behaviour does not indicate that increases to the child’s contact arrangements with him or eliminating the supervision requirements of this time would be in her interests or would promote the meaningfulness of any relationship they share.

2. Significantly, the child is reported as still desiring “the acknowledgement and acceptance of the father”.  The child however is displaying distinct signs of parental abandonment and absenteeism.  The report writer is of the opinion that notwithstanding the almost total lack of commitment by the father to having a relationship with the child, it is nonetheless important to leave the option open for the child to spend time with her father at least in the short to medium term.  Put simply, it is a matter for the father as to whether he takes the opportunity to spend time with the child, and if he chooses not to then it will thereafter be a matter for the child as to the nature and extent of the relationship that she would wish to have with him.

3. Importantly, the mother is providing an appropriate and safe environment for the child and the relationship between Mr C and the family appears to be beneficial.

4. It is not recommended by the family consultant that there should be shared parental responsibility.

Statutory Framework

1. Part VII of the Act sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.

2. The best interests of the children are required to be met and s 60B(1) provides the relevant considerations to satisfy the objects of s 60B.

3. Pursuant to s 60CA the Court must have regard to the best interests of the child.  That consideration is to be considered as paramount. 

4. I am obliged to consider s 60CC of the Act and in particular the primary consideration (s 60CC(2)) and the additional considerations (s 60CC(3)). The Court is also obliged to consider the manner in which each of the parents have either fulfilled or failed to fulfil their responsibilities as a parent pursuant to

   
   

   s 60CC(4).

5. Section 65D provides:

   (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

   …

6. Section 65D(1) is subject to s 61DA of the Act. This section requires the Court to apply a presumption that is in the interests of the child that there be equal shared parental responsibility, unless there is abuse or family violence as referred to in s 65D(2) and/or the presumption is rebutted by evidence that suggests equal shared parental responsibility would not in the circumstances be in the interests of the child.

7. The evidence in this case, whilst not going so far as to enable me to make a finding that the father has engaged in sexual abuse of the child as alleged, in the circumstances of the uncontested evidence of the mother and the matters raised by the family consultant and supported by the ICL, I find that the father presents as an unacceptable risk to the child.  Moreover, the behaviour of the father towards the mother, his denigration of her and the offensive nature of his communications directed to the mother, whilst serious, could have potentially been the subject of resolution, the difficulty is that the child is aware of the father’s opinion of the mother.

8. Accordingly, the presumption in s 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.

9. I must still apply the relevant provisions of s 60CC of the Act.

10. I place weight on the strong views of the child that she does not wish to see her father and is frightened of him, particularly in circumstances where there have been numerous scheduled contact visits, but the father has not appeared to commit to the process ( s 60CC(3)(a)).

11. The evidence suggests that the child has a close relationship with her mother, her step-brother G and of more recent date, the mother’s current partner.  The child has a residual interest in her father and this has been the subject of comment by the family consultant.  The time with her father however needs to be seen against the backdrop of the lack of involvement by the father and the resultant disappointment that colours the relationship between the father and the child.  The child has come to the point where she needs to see her father but on her terms and only in circumstances where he is prepared to facilitate the relationship (s 60CC(3)(b)).

12. It is difficult to assess the willingness of the parties to facilitate and encourage a meaningful relationship between the child and her father in circumstances where any time that is to be spent between them will be the subject of supervision, but in any event ultimately, at the discretion of the child.

13. Even on the most advantageous view towards the benefits of the relationship between the father and the child, the father does not seek that the child live with him, and in the foreseeable future, if the father does participate in the process, there is not likely to be any significant or dramatic change in the child’s circumstances (s 60CC(3)(d)).

14. Similarly, there are no issues in respect of the practical difficulties in the expense of a child spending time with and communicating with the father

    
    

    (s 60CC(3)(e)).

15. The mother considers that the father is unfit to spend any significant or substantial time with the child.  As has been the subject of comment, the mother makes significant serious allegations against the father.  There is no issue as to the mother’s ability to provide for the child’s physical, emotional or intellectual needs.  The current care of the children is entirely proper.  The child reports of a close and loving relationship with her mother, her step-brother and a respectful relationship with the mother’s partner.  I do not consider that there is any evidence to support the contention that the mother has embarked upon a campaign of alienating the child from her father.  The contrary position would appear to be more likely.  For reasons best known to the father, he has chosen to not involve himself in the process, not participate in the supervised time with the child, and to not follow up the recommendations of the family consultant that he should undergo a Sexual Risk Offender’s Assessment.

16. In circumstances where the child, at least from her perspective, would wish to have a relationship with her father, he has chosen a path which provides no comfort to the child.

17. Accordingly, the mother should have the sole parental responsibility in respect of the said child and because of the findings contained in these reasons, the presumption in s 65DAA does not apply.

18. The orders have as their focus to ensure that the child is able to maintain a relationship with her father if he determines to make the effort to do so, but in the absence of his commitment it will thereafter be a matter for the child as to the extent to which she sees her father and in what circumstances.

19. Accordingly, I make orders as set out at the commencement of these reasons.

    .

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 November 2013.

Associate:

Date:  5 November 2013