Sackes & Rumney
[2021] FamCA 422
•23 June 2021
FAMILY COURT OF AUSTRALIA
Sackes & Rumney [2021] FamCA 422
File number(s): SYC 6011 of 2016 Judgment of: BERMAN J Date of judgment: 23 June 2021 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility - Where the mother seeks sole parental responsibility – Where the Department of Communities and Justice and the Independent Children’s Lawyer also support the mother having sole parental responsibility – Where there are extensive allegations of family violence – Presumption rebutted – Order made for sole parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Family violence – Child’s views – Where the father seeks the resumption of previous final parenting orders – Where the mother seeks that the child live with her and ultimately spend no time with the father and/or the paternal grandmother – Where the Department of Communities and Justice and the Independent Children’s Lawyer support the orders sought by the mother – Where the child currently lives with the mother and spends no time with the father – Where there is uncontested evidence that the father has been the perpetrator of serious and violent physical harm – Where the mother and child are fearful of the father – Where the father made threats to the family consultant – Where the child wishes to remain with the mother and spend no time with the father – Where significant weight should be given to the views of the child – Where the father represents an unacceptable risk to the child – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(2A) 62G(2), 67ZC, 68B, 69ZN, 69ZT, 102NA(2) Cases cited: Mazorski v Albright (2007) 37 Fam LR 518 Number of paragraphs: 175 Date of hearing: 31 May 2021 Place: Sydney Counsel for the Applicant: Self Represented Solicitor for the Applicant: Counsel for the Respondent: Mr Legg Solicitor for the Respondent: Burridge & Legg Counsel for the Second Respondent: Ms Winfield Solicitor for the Second Respondent: Jacqui Griffin Mobile Solicitor Counsel for the Intervener: Mr Anderson Solicitor for the Intervener: Department of Communities and Justice Secretary Counsel for the Independent Children's Lawyer: Mr Longworth Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 6011 of 2016 BETWEEN: MR RUMNEY
Applicant
AND:
AND:
MS SACKES
First Respondent
MS RUMNEY
Second Respondent
AND:
AND:
DEPARTMENT OF COMMUNITIES AND JUSTICE SECRETARY
Intervener
LEGAL AID NSW
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
23 JUNE 2021
THE COURT ORDERS:
1.That all former parenting orders in relation to Y born … 2010 (“the child”) are discharged.
2.That MS SACKES (“the mother”) have sole parental responsibility for the child.
3.That the child live with the mother.
4.That the child spend no time with MR RUMNEY (“the father”).
5.That the mother be restrained and an injunction granted restraining her from allowing the child to communicate with and/or spend time with the paternal grandmother MS RUMNEY.
6.That the father is restrained pursuant to s 68B and s 67ZC of the Family Law Act 1975 (Cth) from:
(a)Entering or approaching within 200 metres of the residence of the child;
(b)Entering or approaching any education institution attended by the child; and
(c)Entering or approaching any venue where the child is participating in extracurricular activities or attending for the purpose of receiving medical or allied health services.
7.That the appointment of the Independent Children's Lawyer is discharged.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sackes & Rumney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J:
INTRODUCTION
Ms Sackes (“the mother”) and Mr Rumney (“the father”) are the parents of Y born in 2010 (“the child”).
On 27 October 2017, Judge Boyle made final orders by consent in the following terms:
1.That the mother and the father shall have joint parental responsibility for [the child] born … 2010.
2.That the child shall live with the mother.
3.That the child shall spend time with the father:
a. During School Term: Every Wednesday from after school until before school on Thursday.
b. During School Term: Every second weekend from after school on Friday until before school on Monday.
c. For half of the school holidays;
with pickup and drop off to take place at school or at Café B, Suburb C.
4.Within 7 days the parties are to enrol in and then attend the next available “D Program” course at Suburb E or Suburb F conducted by G Service.
5.In the event that either party requests support or assistance in relation to any parenting matter, in the first instance, the parties are to request G Service to assist or provide such support.
…
In February 2018, the mother relocated the residence of the child from Sydney to Queensland at an undisclosed address. The apparent catalyst for the mother’s actions was the father’s retention of the child consequent upon his opposition to the mother’s proposal to travel with the child to an Asian country.
The mother filed an Initiating Application in the Federal Circuit Court of Australia on 19 January 2018, seeking a recovery order and the return of the child to the mother’s primary care.
On or about 24 January 2018, the father returned the child to the mother’s care. There were further difficulties as between the parties with the father retaining the child.
Following the mother and the child’s relocation to Queensland, on 28 February 2018 the father filed an Initiating Application seeking the following final orders:
1.That the orders of 26 October 2017 resume within seven (7) days from the date of these orders.
2. The mother pay the father’s costs.
By way of interim relief, the father sought a location and recovery order seeking the location of the child and her delivery up to the father’s care.
Following the non-appearance of the mother at various court events, on 19 October 2018 a recovery order was executed and the child was returned to the father’s care.
Case workers for the Department for Communities and Justice (“the DCJ”) continued to closely monitor the child’s care arrangements in the father’s home.
The child had reported that she was frightened of the father and in particular his continued drug use, that she slept in the same bed with him in a granny flat at the home of the paternal grandmother and that the father had slapped her.
The case workers sought ongoing urinalysis testing of the father given his initial assertion that he was no longer consuming methyl amphetamine and had reduced his use of cannabis. Urinanlysis tests were positive to cannabis and amphetamine.
In late November 2018, the father made admissions to using methamphetamine and the consumption of cannabis on a daily basis.
There was a suspicion that the father may have been selling drugs all of which prompted the DCJ to put in place a safety plan.
A critical component of the child’s care upon return to the father was the ongoing involvement of Ms Rumney (“the paternal grandmother”).
On 12 December 2018, the concerns of the DCJ were heightened by the report that the child had not been attending school. A determination was made that the paternal grandmother was not able to keep the child safe, that the father was likely to be drug affected and that the terms and conditions of the safety plan were not being followed. Consequently, the child was removed from the care of the father and the paternal grandmother and placed into the care of authorised carers.
It is not controversial that the removal of the child from the paternal grandmother’s home was traumatic for the child, with the child declaring that she did not wish to live with the mother who she alleged had physically assaulted her.
Interim orders were made on 17 December 2018 that provided for the Minister to exercise parental responsibility for the child and that the future arrangements for the child to spend time with each of the parties to be supervised and in any event, at the discretion of the Minister’s Secretary or his delegate.
The father was arrested in December 2018 for a serious assault. The father’s bail was refused and it was deemed that the conduct of the father was a breach of his intensive correction order which warranted his detention until November 2019.
The child spent supervised time with the mother on two occasions in January 2019. It appears that there may have been a reconciliation between the mother and the child which resulted in the child indicating her preference to resume residing with the mother.
The DCJ adopted a cautious approach and did not immediately restore the child to the mother’s care but rather decided to relocate the child to Queensland and to allow the child to spend more time with the mother.
Various assessments were undertaken as to the mother’s capacity to better parent the child which were ultimately considered by the DCJ to be positive.
On 3 April 2019, orders were made that the Minister retain parental responsibility for the child but that she live with the mother and spend no time with the father.
On 26 May 2019, a corrective service employee intercepted and made a recording of two telephone conversations between the paternal grandmother, the child and the father. Given that the paternal grandmother understood that a fundamental condition of the child spending unsupervised time with her was that there was to be no communication between the child and the father whilst he remained in custody, unsupervised time was no longer supported. Orders were made to that effect on 13 June 2019.
The father was released from custody in December 2019 and returned to the home of the paternal grandmother and his brother Mr J.
As a result of COVID-19 travel restrictions the paternal grandmother had face-to-face contact with the child on 22 February 2020 but not thereafter.
On 25 December 2020 the father was arrested and charged with one count of contravening a domestic apprehended violence order (‘AVO’) and one count of impersonating an Australian Federal Police Officer during a telephone call with a DCJ case worker. A feature of the father’s complaint against the DCJ is his allegation that the removal of the child from his care and a cessation of the child spending time with the paternal grandmother arises from a conspiracy involving the father’s sister Ms K. The AVO was issued to provide the father’s sister with protection.
On 31 March 2020 Senior Registrar Campbell made orders summarised as follows:
(1)That the Minister for the Department of Family and Community Services (as it then was) have sole parental responsibility for the child.
(2)That the child live with the mother.
(3)That the child shall spend no time with the father.
(4)That the father is permitted to communicate with the child through letters and cards subject to being vetted by the Secretary of the Department or his delegate.
(5)That the child spend time with the paternal grandmother as may be directed by the Secretary.
(6)The mother be restrained from consuming or being under the influence of alcohol while spending time with the child.
(7)That the mother and the father attend random chain of custody drug urinalysis testing.
(8)That unless otherwise agreed in writing by the Secretary or his delegate, the father is hereby restrained by injunction from:
(a)Entering or approaching within 200 metres of the residence of the child;
(b)Entering or approaching any education institution attended by the child;
(c)Entering or approaching any venue where the child is participating in extracurricular activities or attending for the purpose of receiving medical or allied health services;
(d)Entering or approaching any venue where the child is spending time with the paternal grandmother;
(e)Entering or approaching within 200 metres of any Department of Communities and Justice Community Services Centre; and
(f)Communicating with any Department of Communities and Justice staff member, other than through his legal representative, or if not legally represented in writing via email.
(9)The mother and father are restrained from:
(a)Being under the influence of illicit drugs whilst caring for the child;
(b)Denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other;
(c)Discussing any allegation made or evidence given in these proceedings to or in the presence of the child and from permitting another person to do so;
(d)Exposing the child to any form of family violence, including verbal violence or using abusive language to, within, or in the hearing of the child;
(e)Physically disciplining or striking the child;
(f)Questioning the child about the appropriateness of the other parties' behaviour or parenting or partner's behaviour or parenting while taking care of or spending time with the child.
(10)The paternal grandmother is restrained from providing information to the father about the child's current address.
(11)That a single expert psychiatrist be appointed to report upon matters relating to the welfare of the child.
(12)The father shall submit to a hair follicle test within 7 days of the Independent Children’s Lawyer (“the ICL”) directing that such sample be taken with such request to occur not more frequently than once every 3 months and then for a maximum of 3 requests.
The final hearing commenced in the Sydney Registry of the Family Court of Australia on 31 May 2021 with judgment being reserved on that same day.
TRIAL DIRECTIONS
On 18 December 2020 the father appeared in person. The mother, the paternal grandmother, the DCJ and the ICL were represented. The hearing was conducted by telephone.
An order was made pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) that applied to any cross-examination occurring in the proceedings. The father was able to be represented pursuant to the family violence scheme.
All applications for final orders were listed for hearing on 31 May 2021, with the further direction that the evidence-in-chief of all witnesses be given by affidavit.
An order was made pursuant to s 62G(2) of the Act for the preparation of a family report.
The proceedings were further adjourned for mention and trial directions to 15 January 2021.
On the adjourned date the father was represented by Mr W Butler, with the mother and paternal grandmother both being represented by their solicitors and the DCJ and the ICL being represented by counsel. The following is a summary of the trial direction orders made:
(a)That the father file and serve his trial material on or before 4.00 pm on 12 March 2021;
(b)That the mother, the paternal grandmother and the Secretary for the DCJ file and serve their trial material by 4.00 pm on 7 May 2021;
(c)That the father file and serve any affidavit in reply by 4.00 pm on 21 May 2021; and
(d)That the ICL file and serve any affidavit material relied upon by 4.00 pm on 21 May 2021.
At a directions hearing on 18 February 2021, the father appeared in person with the mother being represented by her solicitor, the paternal grandmother represented by Ms Griffin and the DCJ and the ICL being represented by counsel.
The Court heard and determined an Application in a Case filed by the father on 14 January 2021, seeking the following orders:
1.The Marshal of the court, all officers of Aust Fedral [sic] Police are requested to find and recover Y DOB …10 and deliver the child to the father.
2.Until further orders are made the father have and exersize [sic] sole parental responsibility for Y …10.
3.The child shall spend no time with the mother.
4.The mother and the Secretary or his delegets [sic] are hereby restrained by injunction from entering or approaching within 200 m metres of the child, or any educational institute, or other venue where the child is participating in extra curicular [sic] activitys [sic].
5.The mother and the Secretary or his delegets [sic] are restrained by injuction [sic] from attempting to contact or communicatev [sic] with the child in any way.
6.That there is a thouroh [sic] Royal Commission Investigation into reportable conduct and corrupt conduct of those involed [sic] regarding the FACSNSW investigation 26/10/18 the removal and assumption 12/12/18, the foster care placement 12/12/18, and relocation of the child to Queensland 3/3/19.
7.At first instance all costs of flights to and from Brisbane Airport for both the child and the father during the course of recovery of the child shall be met by The Secretary, Department of Communities and Justice.
8.That all legal expenidures [sic] made by the paternal grandmother be fully reimburst [sic], all cost met by The Secretary, Department of Communities and Justice.
9.That compansation [sic] for expenidures [sic] related to participation in proceedings for the father and paternal grandmother be be [sic] fully reimburst [sic], all cost met by The Secretary, Department of Communities and Justice.
10.That this application be dealt with ‘ex parte’.
11.The father, compensated for time lost, with child and paternal grandmother be, [sic]
12.The mother be arrested if attempts [sic] contact with the child, until further order.
The Application in a Case filed 14 January 2021 was heard and dismissed. The resolution of the father’s Application in a Case has broader significance in that at the commencement of the final hearing the Court was required to deal with 19 applications that had been predominately filed by the father but also purportedly by the paternal grandmother, although it is likely that they were prepared and filed by the father.
The process and procedure adopted by the father was to utilise the same orders sought and the same affidavit in support being a document sworn on 6 July 2020 and to affix the photocopied application and affidavit to a fresh Application in a Case cover sheet.
Accordingly, 12 of the Applications in a Case were the same as the dismissed Application, with two further applications alleging contravention and an application alleging contempt relying upon the father’s affidavit of 6 July 2020.
On 31 May 2021, all of the outstanding Applications in a Case, Contravention Applications and the Contempt Application were heard and dismissed.
Further orders were made on 18 February 2021 to better assist the family consultant in the preparation of the ordered family report such that the order made pursuant to s 62G(2) of the Act be conditional upon the following:
3. …
(a) the identity of the family consultant to remain anonymous;
(b)all interviews with adults and the subject child are to be conducted by telephone to ensure that the family consultant is not able to be identified;
(c)That if the family consultant is required for cross examination then that shall occur either by telephone or by way of such other arrangements as may be necessary to ensure the anonymity of the family consultant.
DOCUMENTS RELIED UPON
The father
The only document that could be considered in compliance with the trial direction orders is the father’s Initiating Application filed 28 February 2018.
The mother
The mother relies upon the following documents:
(a)Amended Response to Initiating Application filed 7 May 2021;
(b)Trial affidavit of the mother filed 7 May 2021; and
(c)Outline of Case document filed 27 May 2021.
The Department of Communities and Justice
The DCJ relies upon the following documents:
(a)Response to Initiating Application filed 7 May 2021;
(b)Trial affidavit of Mr L (a manager employed by DCJ) filed 10 May 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 12 May 2021; and
(d)Outline of Case document filed 26 May 2021.
The paternal grandmother
The paternal grandmother did not file any documents in respect of the orders made for trial directions.
On 17 January 2019, Judge Boyle made the following order:
1.Ms Rumney has leave to intervene in the proceedings as the 2nd respondent and shall file and serve a response and affidavit by 22 February 2019.
It is common ground that the paternal grandmother did not comply with her Honour’s order.
As previously considered, the paternal grandmother had a position of significance in the history of the matter given that it was her involvement and intended supervision of the child remaining in the father’s care that was integral to the decision of the DCJ to initially place the child with the father.
During the period of the father’s incarceration, the child spent time with the paternal grandmother at the discretion of the DCJ and it was the paternal grandmother’s conduct in facilitating two telephone conversations between the child and the father that prompted the DCJ to intervene and remove the child from the paternal grandmother’s home.
The order of 31 March 2020 provides that:
6.The child shall spend time with the paternal grandmother as directed by the Secretary.
On 18 February 2021, the paternal grandmother was represented by Ms Griffin of Jacqui Griffin Mobile Solicitor. Ms Griffin confirmed that she had received instructions from the paternal grandmother and needed a few extra days to prepare a Response and trial affidavit. No application was made by Ms Griffin to the effect that the paternal grandmother would not be able to comply with the trial directions or in any event file the necessary trial documents in a timely fashion.
Independent Children’s Lawyer
The ICL relies upon the family report dated 11 May 2021 and a Case Outline document filed 21 May 2021.
SEPARATE PROPOSALS OF THE PARTIES
Whilst not prosecuted by the father, the father sought a resumption of parenting orders as provided for in the final orders of 26 October 2017.
The mother seeks orders summarised as follows:
(1)That the mother have sole parental responsibility for the child;
(2)That the child live with the mother;
(3)That the child spend time with and communicate with the father and the paternal grandmother in accordance with her wishes.
(4)That the father be and is hereby restrained from:
(a)Communicating with the child except in response to any correspondence, including social media and electronic communication which the child sends to the father;
(b)Approaching the child;
(c)Attending the child’s school;
(d)Seeking from the child’s school copies of school reports or other information relating to the child; and
(e)Attending any sporting or extracurricular activity in which the child is participating.
As considered, the paternal grandmother has not filed any Response nor are there any documents which might give an indication as to whether the paternal grandmother seeks orders that are different to those of the father. Given the circumstances to date and the failure to file a Response, the involvement of the paternal grandmother is limited to the support of the father.
The Secretary for the DCJ seeks orders summarised as follows:
(1)That all former parenting orders be discharged.
(2)That the mother have sole parental responsibility for the child.
(3)That the child live with the mother.
(4)That the child spend no time with the father.
(5)That the child spend time with the paternal grandmother subject to the child’s wishes.
(6)That pursuant to s 68B and s 67ZC of the Act the father is restrained from:
(a)Entering or approaching within 200 metres of the residence of the child;
(b)Entering or approaching any education institution attended by the child;
(c)Entering or approaching any venue where the child is participating in extracurricular activities or attending for the purpose of receiving medical or allied health services;
(d)Entering or approaching any venue where the child is spending time with the paternal grandmother;
(e)Entering or approaching within 200 metres of any Department of Communities and Justice Community Services Centre; and
(f)Communicating with any DCJ staff member other than through his legal representative, or if not legally represented in writing.
The orders sought by the ICL mirror the orders sought by the DCJ, save and except that the ICL does not support the child spending time with the paternal grandmother even if the child has expressed a wish to do so.
As between the mother, the DCJ and the ICL there is agreement as to the living arrangements for the child but there is disagreement as to whether the mother should facilitate the child’s wishes to spend time with or communicate with the father and/or the paternal grandmother.
In evidence, the mother was challenged by counsel for the ICL as to whether she had given adequate thought to the orders she sought that might see the child resuming a relationship with the father and the paternal grandmother.
It was clear that it was not her personal view that it would be safe for the child to resume a relationship with either the father or the paternal grandmother but she proposed the order on the basis of an expectation that the Court would want her to respect the child’s wishes.
The mother’s evidence was insightful and when it became apparent that any wish expressed by the child would be a factor to be considered but not in and of itself determinative of what is to happen, she readily recanted from her position and was demonstrably more comfortable with a position that there be no time spent between the child and the father and/or the paternal grandmother.
In final submissions it also became apparent that the DCJ now considered that the paternal grandmother was in the thrall of the father and would not be able to protect the child. The DCJ does not now support an order that would enable the child to communicate or spend time with the paternal grandmother.
CONDUCT OF THE PROCEEDINGS
At the commencement of the proceedings I advised counsel that I was cognisant of the provisions of s 69ZN of the Act and gave consideration to the principles to be applied in conducting child related proceedings pursuant to Div 12A of the Act.
Whilst there were significant allegations of family violence, in the circumstances as presented, namely that the father appeared only for a short time and there was no appearance by the paternal grandmother, I did not consider that there were any circumstances which might be considered exceptional thereby requiring that I dispense with the provisions of s 69ZT of the Act.
As discussed, the parties who remained engaged in the proceedings, including the ICL, were consistent in their separate approach that the mother should have the sole parental responsibility for the child and that the child should live with her and spend no time with the father.
This is a case where the mother, the DCJ and the ICL consider that the child needs to be protected from physical or psychological harm and family violence likely to be perpetrated by the father.
The ICL considers that the father’s behaviour and his substance abuse issues present him to be an unacceptable risk to the child.
The ICL has no confidence that the paternal grandmother could protect the child from the father’s physical aggression and antisocial conduct. It is not suggested that the paternal grandmother presents an overt physical risk to the child but she has no ability or preparedness to adopt a stance that is different to that of the father.
The parties commenced their relationship in mid-2007. Later that same month the father was the victim of a home invasion. He discharged firearms and as a result of the father’s actions and gunshot wounds received by the home invaders, the father was charged with a serious crime. He was acquitted on the basis of self-defence but spent three and half years in custody for firearms offences.
The father alleges that in June 2011 the mother stabbed him in the presence of the child.
The mother admitted that she had stabbed the father with a small kitchen knife but contends that she did so to protect the child from the father’s conduct and his drug use.
In 2017 the mother alleged that she was assaulted by the father in a shopping centre and on 4 March 2017 was able to obtain an Apprehended Violence Order against the father with the mother as a protected person.
On 24 March 2017, there was a further allegation that the mother had assaulted the father by threatening him with a brick.
On 10 May 2021, the mother filed a request to attend by electronic communication. The reason for the application was that the mother was residing in Queensland and had insufficient funds to travel to and from New South Wales.
The mother annexes the following email from the father in opposition to her request to attend by remote hearing:
From: …@gmail.com>
Sent: Wednesday, 5 May 2012 5:41AM
To: Burridge and Legg
Cc:…@cso.nsw.gov.au; …@mobilesolicitor.com.au; …@legalaid.nsw.gov.au
Subject: Re: Sackes & Rumney
I do not give consent for that dog to appear via video link. The putrid mutt can attend in person… warm regards
The form and level of engagement between the father, the Court and the parties and their legal representatives involved in the proceedings was such that the family consultant was only prepared to undertake the preparation of the family report if there was complete anonymity. Accordingly, the family consultant has adopted the name of “Jane” and her evidence was to be given only by telephone and not by visual link.
Significant efforts were made such that those not directly involved in the proceedings would have a shield of anonymity and it was my decision that the father could appropriately engage in the proceedings from a remote courtroom, in this case courtroom 5A.
At the commencement of the hearing, the father made it clear that he was fearful of me and wanted the protection of another judicial officer to remain with him in the remote courtroom. The father would not accept my direction that he should allow the proceedings to commence given my assurance that I would come back to him and ensure that he was heard.
The father continued to interrupt and ultimately disrupt the proceedings up to the point when he refused to remain in the courtroom, ignoring my invitation for him to remain and stay seated.
The father was seen to leave the courtroom.
In the absence of the father, the appearances of those representing the remaining parties were taken.
The focus then turned to the status of the paternal grandmother. She was not present. Her counsel and instructing solicitor were not able to advise the Court whether the paternal grandmother was going to attend. It did not appear that they had been able to take proper instructions if any. There was no explanation as to why a Response and affidavit had not been filed by or on behalf of the paternal grandmother, in circumstances where her solicitor had indicated a preparedness to do so.
There was then some uncertainty as to the extent to which counsel and the solicitor were able to assist the Court in the determination of those Applications in a Case and Contravention Application which were purportedly filed by or on behalf of the paternal grandmother.
Given the departure by the father from the courtroom, the proceedings were then stood down to ascertain the whereabouts of the father and to give counsel for the paternal grandmother an opportunity to take instructions and ascertain the whereabouts of their client.
On resumption of the hearing the Court heard evidence from the head of Court Security, Mr M (not related to the father). The evidence was to the effect that the father had been observed to leave the courtroom and was escorted to the registry where he appeared to be remonstrating with registry staff. Thereafter, the father left the building and did not return.
Counsel for the paternal grandmother advised the Court that they were not able to further assist in terms of the whereabouts of the paternal grandmother and sought leave to withdraw from the bar table on the basis that their future involvement would be limited to a “watching brief”.
The proceedings then commenced in the absence of the father and the paternal grandmother. The mother gave evidence and was cross-examined by counsel for the ICL. The focus of the cross-examination was of limited compass, seeking to explore the order sought by the mother that she would facilitate the child seeking and/or communicating with the father and the paternal grandmother if she wished to do so.
The remaining parties did not require the family consultant to be called and her report was tendered into evidence.
Mr L gave short evidence on behalf of the DCJ and the inquiry was again limited to the extent to which the Department considered the mother should facilitate a request by the child to see or communicate with the paternal grandmother.
At the conclusion of the evidence, counsel made final submissions and judgment was reserved.
Neither the father nor the paternal grandmother reappeared during the course of the hearing.
THE EVIDENCE
The mother
The mother relied upon her trial affidavit.
The relatively brief oral evidence given by the mother proved to be of assistance in that it gave the mother an opportunity to demonstrate that she had a level of insight as to the need to protect the child. Her evidence was broadly corroborative of matters raised in her trial affidavit.
She appeared to be a credible witness.
Mr L
Mr L relied upon his trial affidavit. His evidence and affidavit was not the subject of challenge.
I find Mr L to be a credible witness.
The Family Consultant
The family consultant is to be known as “Jane”. Her curriculum vitae is not attached to the report however I accept the proposition that the mere fact of her employment with the Family Court enables a finding that she meets the relevant criteria regarding qualification and experience.
The family consultant conducted interviews with the father, the mother, the paternal grandmother and the child on 13 April 2021.
The father and the mother were further interviewed on 14 April 2021.
The family consultant viewed a raft of materials including relevant orders made, applications and affidavits filed by or on behalf of each of the parties.
At paragraph 36 of her report, the family consultant identified the issues relevant to the parties as follows:
•[The father] appears to be focussed on, what he considers to have been, the illegal and corrupt removal of [the child] from his and/or the paternal grandmother’s care by DCJ on 12 December 2018,
•[The mother] appears to be focussed on protecting [the child] from exposure to trauma and harm and supporting [the child] to meet her full potential,
•[The paternal grandmother] appears to be focused on being able to have some contact with [the child], as well as supporting [the father’s] position.
At paragraph 37 of the report, the family consultant lists the issues they identified during the assessment:
•The alleged risk factors with regard to each parent,
•The nature and content of written material filed by [the father] in the Court,
•The assessments already conducted by DCJ,
•The trauma that [the child] and both parents have experienced,
•The apparently differing capacity of each of the parents to be reflective about and meet [the child’s] needs,
•The role of the paternal grandmother,
•[The child’s] presentation and views.
The family consultant noted that the father was fixated on the events of December 2018 which he considered to have been a kidnapping of the child at the instigation of the DCJ. The father’s position is adequately summarised in paragraph 41 of the report in the following terms:
[The father] started by stating that, on 12 December 2018, “my daughter was kidnapped by a criminal syndicate” of DCJ caseworker Ms O, [the mother] and [the father’s] sister…
The family consultant recorded the father’s allegation that the child was at serious risk by remaining in the care of the mother and that he described “[the child] as enduring ‘a lifetime of abuse’ from the mother.”[1]
[1] Family Report dated 11 May 2021, paragraph 45.
The family consultant recorded the father’s view that the mother was a “crack head”.[2]
[2] Ibid, paragraph 46.
The father admitted to the family consultant that he had been a drug dealer, had sold cannabis “but also ice and ecstasy”.[3]
[3] Ibid, paragraph 47.
The family consultant properly explored the father’s drug use and the following explanation appears in paragraph 47:
He indicated that he had used drugs because his own father was abusive of him. When asked about his history of ice use, he said “I was shooting people in Suburb P, love, don’t worry about drugs”. He said that, since he was released from gaol in 2011, he had used drugs occasionally when he has partied for a weekend, but has never relapsed back into his former lifestyle. …
The father admitted to modest use of cannabis but denied that he was currently using ice.
The father recognised that the child might not currently hold him in good light but considered that if that was the case, then it was as a result of the mother denigrating him and influencing the child against a relationship with the father.
The father considered that he would not be going to the final hearing and that the “only way I don’t get my daughter back, is if you railroad my daughter”.[4]
[4] Ibid, paragraph 52.
The family consultant summarised the father’s current presentation at paragraph 54 as follows:
He said “My life stopped. I’m not celebrating nothing. Until my daughter’s free. Until I save my daughter. I’m her protector. I’m very good at it. Doesn’t matter if the world is against me. If you’re against me, you won’t work in your field again. I’ll put you in McDonalds”. The Family Consultant suggested that his comments were threatening, and he said “I’m not threatening you. I’m guaranteeing you”. The Family Consultant told [the father] that she was going to finish the interview and he said “I’m going to finish your career. I guarantee you will lose your job if you don’t do your job”. He then apologised, but the Family Consultant ended the call.
In contrast, the family consultant found that the mother in interview was “polite, respectful and very forthcoming with information”.[5]
[5] Ibid, paragraph 55.
The mother was frank and forthright in admitting to the family consultant that at the time of separation she remained in love with the father and wanted to reconcile. She admitted that she had thrown a phone at the father and had stabbed him in the leg in 2011. She stated that she was not proud of her behaviour. Whilst she had continued with cannabis use, albeit occasionally and had used “ice” on one occasion and occasionally used cocaine between 2002 and 2007, her position is now that she does not use drugs nor does she consume alcohol.
The family consultant reported that the mother considers herself to be responsible and able to take care of the child’s needs both emotionally and financially.
The mother remains fearful of the father and of the ability of the paternal grandmother to protect the child from the overtly aggressive conduct of the father.
In interview, the paternal grandmother was polite and respectful.
She considered that the mother was unable to control her aggressive behaviour, had been physically abusive to her and that she sought the protection of an AVO following an incident in 2017 involving the mother threatening her and the father with a brick.
Contrary to the observations of the mother, the paternal grandmother denied that she had experienced any aggressive, violent or abusive conduct by the father and indicated that the father had been supportive of her since her husband had died.
The family consultant explored the cultural background of the paternal grandmother arising from the father’s contention that he was entitled to identify as Aboriginal. The paternal grandmother was not able to provide further assistance as to whether there was any basis for the father’s purported identification with an Aboriginal heritage.
At interview, the child was aged 10 years and 6 months. She was able to contrast her previous life as being really hard in that it involved changing where she lived and attending different schools. The child now considered that she was settled with the mother and she summed up her position by saying “I love it”[6].
[6] Ibid, paragraph 93
She does not feel unsafe with her mother and was complimentary of the efforts the mother had gone to to provide a nice home environment, good food and clean clothes.
The child advised the family consultant that she did not trust the father and that he had once slapped her across the face.
She felt unsafe with the father and the paternal grandmother and when pressed, could not identify any positive experience that she had with them.
The child’s views were voluntarily expressed and appear at paragraph 95 of the family report:
When asked about the future, [the child] seemed to become frustrated and stated “I’ve said lots of times, I just want to live with Mum. If they’re listening, I won’t have to talk to you again”. When asked specifically about the possibility of spending time with her father, [the child] said “I don’t want to” and again became upset, audibly crying. When asked about the possibility of spending time with her paternal grandmother, [the child] said “no”. [The child] said “I just want to live with my Mum. I don’t want any contact with them [her father and paternal grandmother], when I’m around them, I don’t feel safe”.
The family consultant did not consider there was any prospect of the parties forming an effective parenting relationship.
Subject to the Court finding that the mother perpetrated physical abuse of the child, the family consultant underpinned her recommendation that the child live with the mother and that her physical and emotional safety should be prioritised in the following manner:
139.[The child] would benefit from long term decisions being made in a timely and efficient manner, with her best interests being the primary concern. If [the child] is to remain living with [the mother], it is assessed that it would be inappropriate, inefficient and place [the mother] and [the child] at risk of harm if [the mother] were required to share parental responsibility with either [the father] or [the paternal grandmother]. If the child protection authority considers it necessary to retain parental responsibility or to share parental responsibility with [the mother], then this would potentially be appropriate, given the history of this matter. However, there would be some benefit to [the mother] holding sole parental responsibility for [the child] in that it would support [the mother] to overcome the trauma and stress she has endured.
The mother, the DCJ and the ICL commended the family report to the Court and did not seek for the author to be cross-examined.
APPROACH TO BE ADOPTED
The child currently lives with the mother and spends no time with the father.
The father seeks to return to the parenting arrangements as determined by the orders of 26 October 2017.
The mother, Secretary for the DCJ and the ICL propose that the mother have sole parental responsibility. That outcome is also supported by the family consultant.
In any event the extensive allegations of family violence are such that the presumption of equal shared parental responsibility is rebutted.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I am also mindful of the directions contained in s 60CC(2A) and in particular, the focus by the mother on what she considers to be the father’s abusive, derogatory and threatening behaviour towards her.
I propose to adopt the following approach:
(1)Have consideration to the proposals put forward by each of the parties as they are identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of a child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations made under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
PARENTING CONSIDERATIONS
Meaningful relationship
It is fundamental to the Act that I regard the best interests of the child as the paramount consideration. Section 60B(1) of the Act provides that the aims and objects of the Act 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 best interests of the child, while paramount, is not the sole consideration. In this case both of the primary considerations are relevant.
In Mazorski v Albright (2007) 37 Fam LR 518 Brown J considered the definition of the term “meaningful” and observed:
26.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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Protection from harm
The historical evidence is uncontested that the father has been the perpetrator of serious and violent physical harm.
The mother also concedes that she has perpetrated family violence in the presence of the child.
The mother has not been convicted of any offence of violence and it is the contention of the DCJ, based upon the evidence of the family consultant, that the mother’s violence towards the father was situational. As discussed, the family consultant considered it to be an important factor in the mother’s presentation that she was able to admit her involvement in family violence and had developed significant insight into her behaviour.
Those findings enable a Court to consider that the likelihood of the mother committing further acts of physical violence is low.
Whilst the mother’s evidence was brief, she was nonetheless impressive in her understanding of the matters that had the potential to impact adversely on the child and those matters which would assist in her future development.
The father has a history of appalling violence. Whilst acquitted of the charges of attempted murder he was convicted of serious firearms offences which resulted in an extended period of incarceration.
The father has an admitted history of drug use and drug dealing. Whether by way of inappropriate puffery, bravado or an accurate recitation of true events, the father indicated to the family consultant that he had killed people in Suburb P.
The mother is fearful of the father.
The family consultant commented on the father’s threatening and aggressive conduct and interaction with her.
Given the evidence of the mother as contained in her affidavit, there is some justification for her concern that the threats of the father to kill her may in fact be capable of execution.
The father’s description of the mother in open correspondence, describing her as a “dog” and a “putrid mutt” together with the disingenuous complimentary close of “warm regards” is sufficient foundation for the mother’s fears.
The father’s threats to the family consultant to end or limit her career are not considered to be empty by nature and are indicative of the father’s general tone and presentation.
Views expressed by the child
The evidence of the family consultant supports a finding that the views of the child should be given significant weight. She displayed a high level of insight into her current circumstances and was able to contrast the uncertainty of her life before being placed in the primary care of the mother to the stability that her mother is now able to provide.
That does not mean that the mother is without blame and it may be that the mother should have been more diligent in terms of the environment that she either created or was complicit in when with the father.
The child has expressed a view that she wants to stay with the mother and feels that her life is now “settled”.
She does not wish to spend time with the father and bases her reluctance to do so on her feelings of fear.
Her view of the paternal grandmother is more subtly developed. There is no allegation that the paternal grandmother has been violent towards her but the concern of the child is a mature recognition on her part that the paternal grandmother is in the thrall of the father and will do his bidding.
The paternal grandmother is not able to protect the child from the excessive aggressive conduct of the father as is self-evident from her conduct in facilitating two telephone calls between the child and the father on 26 May 2019 whilst he remained in custody.
I propose to give significant weight to the views of the child based upon the evidence of the family consultant.
The nature of the relationship of the child with each of the parents and any other person
The relationship between the child and the mother is functional and the child desires the current parenting arrangements to continue.
The family consultant considered that the child did have fun times with the father but his florid and exaggerated view of him being the child’s protector is indicative of a significant lack of insight.
The family consultant considered that the father was not able to reflect on the child’s needs and the basis for the child’s current rejection of him arising from what can only be described as a history of chaotic behaviour, antisocial conduct and an aggressive and frightening demeanour. The very fact that the father’s behaviour has placed him in long-term incarceration underpins the child’s concerns.
The paternal grandmother is not a party to the proceedings. Whilst in the past she has been a significant person in the child’s life, her inability to separate her own views from those of the father has provided support to the child deciding that the paternal grandmother is not able to protect her from the father.
The mother and child now reside in an undisclosed location in Queensland. It appears that the child is doing well in terms of her curricular and extracurricular activities and the DCJ have been vigilant to ensure that the child has attended school regularly. The evidence supports the efforts undertaken by the mother to ensure that the child is provided with an appropriate domestic environment and is prompted to engage in regular school attendance.
The father does not present any evidence in support of the final orders that he seeks. It is not a complicated exercise to consider that a return to the earlier final orders would represent manifest disruption to the child and would place her in circumstances where she would be fearful of the father and the environment in which he is enmeshed.
The father represents an unacceptable risk to the child. The father demonstrates overt violence and is not just physically threatening to the mother but holds her in little or no regard. The father is not able to contain his dislike of the mother nor is he able to refrain from engaging in derogatory and offensive reference towards her.
There is no evidence that could support a finding that the father is capable of supporting an ongoing relationship between the mother and the child.
Sex, lifestyle and cultural background
There is a scant reference by the father to his purported Aboriginality. The father did not seek to place evidence before the Court in that regard and all reasonable efforts that appear to have been made by the DCJ and the family consultant to explore that aspect have borne no fruit.
The mother is a Maori woman born and raised in New Zealand. She identifies as both an Australian and a Maori but there is no evidence that the mother has a strong cultural engagement with the Maori community, culture or her heritage.
Family violence
The evidence presented by the mother, the DCJ and the family consultant is redolent of matters pertaining to the father’s violence and aggression.
The assertions of family violence are not the subject of any answer by the father and are corroborative of a finding that by reason of family violence he presents as an unacceptable risk.
CONCLUSION
There is no reason presented on the evidence which would support the Court from making orders other than as sought by each of the mother, the DCJ and the ICL that the previous parenting orders be discharged, that the mother have sole parental responsibility for the child and that she have the child’s primary care.
All parties consider that there should be no time spent with the father.
I consider that there is sufficient evidence to support a finding that the mother is able to provide an appropriate level of care for the child.
There is no evidence that would support a finding that it would be in the best interests of the child to resume a relationship with the father.
Similarly, even though the paternal grandmother is not a party to the proceedings, I consider that there needs to be an order of injunction put in place ensuring the mother does all that she can to ensure that the child does not speak to or spend time with the paternal grandmother.
For those reasons, I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Dated: 23 June 2021
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