Sanford & Morce
[2022] FedCFamC1F 499
•19 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sanford & Morce [2022] FedCFamC1F 499
File number(s): MLC 8384 of 2020 Judgment of: HARTNETT J Date of judgment: 19 July 2022 Catchwords: FAMILY LAW – PARENTING – Undefended – Where the mother seeks sole parental responsibility – Where the father has failed to prosecute his case – Where the father perpetrated family violence against the mother – Where the mother has post-traumatic stress disorder and a real fear of the father – Where the mother is receiving sufficient support for her mental health – Where the father has failed to provide clear drug screens –Where the child has no relationship with the father and has not seen the father since 2018 – Where the father poses an unacceptable risk of harm to the child in the circumstances – Where the child has a meaningful and positive relationship with his mother – Mother to have sole parental responsibility – Child to live with the mother – Where the mother be at liberty to withhold information from the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 64B, 65D
Cases cited: Bell & Nahos [2016] FamCAFC 244
Blinko & Blinko [2015] FamCAFC 146
Russell & Close [1993] FamCA 62
Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69
Mulvany & Lane (2009) FLC 93-404
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 93 Date of hearing: 28 June 2022 Counsel for the Applicant: Mr Goddard Solicitor for the Applicant: Schembri & Co Lawyers The Respondent: Did not participate Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates Pty ORDERS
MLC 8384 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANFORD
Applicant
AND: MR MORCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
19 July 2022
THE COURT ORDERS THAT:
1.The Response to Initiating Application filed by the Respondent Father on 24 October 2020 be struck out.
2.The Applicant Mother have sole parental responsibility for the child, X born in 2015 (“the child”).
3.The child live with the Applicant Mother.
4.The Applicant Mother be permitted to travel overseas and interstate with the child without consultation with the Respondent Father.
5.The Applicant Mother be at liberty to withhold from the Respondent Father the following information:
(a)her and the child’s residential address;
(b)the full name of her partner;
(c)the name of the child’s school; and
(d)the name of any treating medical practitioners and allied health professionals.
6.That otherwise all extant applications are dismissed and the matter removed from the list of cases awaiting hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanford & Morce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Introduction
This proceeding commenced upon the applicant mother (“the mother”) filing an Application for Final Orders on 31 July 2020. That application was for property orders.
In his Response to Final Orders filed on 24 October 2020, the respondent father (“the father”) sought interim property orders and, in addition, sought final and interim parenting orders. The father was at that time legally represented.
The parties resolved their competing property orders applications, with final property orders being made by consent on 27 October 2020. Thus, what remained outstanding were the parties’ competing applications for parenting orders in respect of the parties’ child, X, born in 2015. At trial, X was aged seven years.
On 27 October 2020, the Court had also made parenting orders by consent including:
…
5. That the child lives with the Applicant.
6. Pursuant to section 69W of the Family Law Act 1975, each party:
(a)Sign all such documents and do all acts and things necessary to undergo an approved parentage testing procedure at an approved laboratory (“the procedure”) to ascertain whether the Respondent is the biological father of the child; and
(b)Cause, permit and encourage the child to fully and effectively participate in and otherwise undergo the procedure.
The parentage test results of February 2021, confirmed that the father is the biological father of X.
On 15 January 2021, a s 67Z of the Family Law Act 1975(Cth) (“the Act” ) report was produced by the Department of Health and Human Services (as it then was) in response to a Notice of Child Abuse, Family Violence or Risk of Family Violence filed in the proceeding by the mother on 24 November 2020. That report formed part of the evidence before me.
The s 67Z of the Act report contained, relevantly, the following:
There has been one previous report in relation to [X], received 14 October 2019 …[which] alleged the mother…was withholding contact from the father…The report also alleged historical drug use by [the mother].
…
The current report alleges significant family violence perpetrated by [the father] towards [the mother] in the course of their relationship. Follow up found that their concerns were reported to Victoria Police in May 2018. It is further alleged that [Mr Morce] has significant drug abuse issues; Child Protection have no further information in relation to this.
….The Court is best placed to decided ongoing custody arrangements….The matter [was]…closed on around 4 January 2021.
On 26 March 2021, the mother filed what was by then a Further Amended Initiating Application, which contained, relevantly, an interim order sought being an order for the parties to attend upon a Family Consultant pursuant to s 11F of the Act for the purposes of a child exclusive conference. That order was made. A written memorandum was ordered to be produced thereafter, and made available to the Court and to the parties.
The s 11F of the Act memorandum said, relevantly, the following:
29.There is no communication between the parties, and both parties…have not communicated since the parties’ separation in May 2018.
…
32.... [X] …has not spent any time with his father…since the parties’ separation in May 2018.
33. There are significant risks in the current matter, which require further investigation and assessment. The allegations of family violence made by [the mother] are concerning. …[X’s] resulting anxiety, sensory issues and toileting issues may be a result of his experience of family violence trauma, as indicated by [X’s] treating psychologist. …
34.The parties’ drug use also remains a concern, with the parties outlining they had historic issues with [drug] abuse. Whilst the parties deny having any current misuse issues, further information should be obtained to assess if there is a current risk.
35.It has been a considerable amount of time since [X] has had any contact with his father, and it is evident [X] is experiencing ongoing mental health issues. With this in mind, it is imperative any time [X] spends with his father is slow and graduated in line with his emotional wellbeing. If this graduated approach is not adopted, there is a considerable risk that [X’s] mental health and emotional security will be significantly destabilised. [X’s] treating psychologist and paediatrician may be best placed to guide any reintroduction of time, and provide [X] with support moving through this process.
The s 11F of the Act memorandum recommended that X remain in the mother’s care and that the Court obtain hair follicle test results for both parties; the appointment of an Independent Children’s Lawyer (“ICL”); that a Family Report pursuant to s 62G of the Act be obtained; and that the Victoria Police records of the father be placed before the Court.
On 30 June 2021, the mother filed a further affidavit, to which she annexed a psychological review in respect of X, the mother noting that such report would be provided by her to the National Disability Insurance Scheme in support of her application for further funding for X’s ongoing care and support. The report indicated that X had elevated ratings for traits of various psychological conditions. The report stated, relevantly, that in the event supervised access between X and the father was considered, it was strongly recommended that there should be:[1]
Close monitoring of emotional dysregulation and avoidant behaviours associated with DSM-5 criteria for 309.81 (F43.10) post-traumatic stress disorder.
[1] Mother’s affidavit filed 30 June 2021, Annexure JP-1.
In the affidavit of 30 June 2021, the mother described herself as “terrified of the respondent father”. She claimed that in 2018, the father was convicted of assaulting her, and of threats to kill her.
On 19 July 2021, a Senior Registrar made an order for the appointment of an ICL. He otherwise made orders, relevantly, as follows:
4.That each of the parents shall attend upon [Ms A] for the purposes of a psychological assessment on 29 July 2021 in respect of which:
a.Each parent shall meet the cost of their own assessment (approximately $1650);
b.Each parent shall provide [Ms A] with all documents filed on their behalf in the course of these proceedings;
c. The Independent Children’s Lawyer shall provide [Ms A] with:
i.Copies of any documents produced under subpoena and released for inspection by the parties;
ii. Court orders made in these proceedings;
iii.The child inclusive Section 11F Memorandum dated 14 July 2021;
iv.The 67ZW Report from the Department of Families, Fairness and Housing dated 4 January 2021.
…
6.That the father’s solicitors be restrained from providing the father access to any document which divulges the mother’s residential address, the full name of the mother’s partner or the name of the child’s school or from otherwise facilitating the father’s access to such information.
7.That each of the parents shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or such other clinic as shall be locally available for hair drug purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. To give effect to this order:-
(a)The parents are required to maintain their head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of the collection of the hair.
(b)On or before 23 July 2021 the parents are required to make an appointment with the clinic by telephoning their office for the purpose of providing a hair sample for hair drug testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The parents are each to attend at the clinic or nominee and submit to the supervised collection of a hair sample from the parents at the earliest available appointment time after 23 July 2021;
(e)The parents are to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising the clinic or nominee to provide the results of each test to both
(f)The hair drug and test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required.
(g)The clinic is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; the clinic’s selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
(h)The parents shall each be responsible for the costs of their respective tests pursuant to these orders.
On 20 October 2021, the ICL filed an affidavit sworn by Ms A annexing as evidence her psychological assessments undertaken in accordance with the order of the Senior Registrar made 19 July 2021.
On 20 October 2021, I made orders by consent, being in the nature of trial directions. Those orders included that the father file material as set out in Order 4 of those orders, which was as follows:
By 4.00pm on 7 March 2022 the Respondent file and serve upon all other parties:-
a.an Amended Response setting out with precision the orders to be sought; and
b.the Affidavits of Evidence in Chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave).
The father did not comply with the above order and filed no material.
Order 7 of the orders made 20 October 2021 was as follows:
That the parties attend upon [Ms B], Family Consultant, for interviews and preparation of a Family Report, noting as follows:
a.The interviews to occur on 7 or 9 December 2021 or other date nominated by [Ms B];
b.The Applicant and Respondent be equally responsible for the costs of [Ms B’s] report in the sum of $5,500.00, inclusive of GST;
c.The solicitors for the Applicant provide sealed copies of all documents filed by their client and a copy of all sealed Orders made in these proceedings including this Order, no less than seven days prior to the interviews, including documents detailed above in paragraph 3, which are yet to be filed;
d.The solicitors for the Respondent provide sealed copies of all documents filed by their client no less than seven days prior to the interviews;
e. The ICL provide the following documents:
i.The section 11F Report prepared by [Family Consultant D], dated 14 July 2021;
ii.The S67Z Report prepared by the Department of Families, Fairness and Housing on 4 January 2021;
iii.Psychological assessment and reports of the Applicant and Respondent prepared by [Ms A], psychologist filed on Affidavit on 20 October 2021;
f.The ICL be at liberty to provide [Ms A] with a copy of all documents produced pursuant to all Subpoenas filed in these proceedings, including but not limited to:
i.Subpoenas to Victoria Police filed 4 August 2021 and 22 September 2021;
ii. Subpoena to [Dr C] filed 22 September 2021;
iii.Subpoena to [Mental Health Service E] filed 22 September 2021; and
iv.Subpoena to [Medical Centre F] filed 22 September 2021.
Order 8 of those orders was as follows:
The Applicant and Respondent attend upon a supervised urine drug screen test, within 36 hours of any request made by the ICL, with such test not to occur more frequently than once a month, and the parties are to provide the written details of the results, and a letter from their respective general practitioners explaining the presence of any illicit or non-prescription substances if applicable, as soon as they become available to all parties in these proceedings.
On 12 November 2021, the mother filed an application for contravention of the orders made by the Senior Registrar on 19 July 2021, and in particular, Order 7 of those orders. That contravention was alleged to have occurred on 23 July 2021, the allegation being that the father had failed on or before that date to attend upon a drug testing service and/or clinic.
On 23 December 2021, the solicitors then acting on behalf of the father filed a Notice of Ceasing to Act. The father has been a litigant in person since that time.
On 13 January 2022, the ICL filed an affidavit sworn by Ms B, Family Consultant on 12 January 2022, and to which was annexed her Family Report dated 10 January 2022. That report was admitted into evidence.
On 14 January 2022, a further Contravention Application was filed by the mother alleging a breach of Order 7 of the orders made on 19 July 2021, and three breaches of Order 8 of the orders made 20 October 2021.
On 28 January 2022, a Senior Judicial Registrar made orders sought by the mother withdrawing the Contravention Application filed by her on 12 November 2021 and referring the Contravention Application filed 14 January 2022 to the National Assessment Team for consideration of listing for hearing before a Senior Judicial Registrar. There was no appearance at that hearing by the father.
On 14 February 2022, I made orders as follows:
(1)That the requirements of s.102NA (1) (c) of the Family Law Act 1975 (Cth) shall apply forthwith and, as such, the husband shall not be permitted to personally cross-examine the wife.
(2) That the trial date of 26 April 2022 is vacated.
(3)That there be a trial hearing of the matter on 20 June 2022 at 10:00am (for 4 days).
(4) That the orders made 20 October 2021 be varied as follows:
(a) order 2 shall refer to 14 March 2022 (not 14 February 2022);
(b) order 4 shall refer to 7 April 2022 (not 7 March 2022);
(c) order 5 shall refer to 21 April 2022 (not 21 March 2022);
(d) order 6 shall refer to 28 April 2022 (not 28 March 2022).
AND THE COURT NOTES:
1. An outstanding contravention application is listed for 11 May 2022.
2.The father will require the additional time provided by the orders to obtain legal assistance from the (Cth) s.102NA scheme.
The father failed to appear on the 14 February 2022.
On 11 March 2022, the mother filed a second Further Amended Initiating Application in which she sought the following orders:
1.That the Response to Initiating Application filed by the Respondent Father on 24 October 2020 be struck out.
2.That pursuant to Rule 10.27(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the Applicant Mother be permitted to proceed on an undefended basis.
3.That the Applicant Mother have sole parental responsibility for the child, [X] born [in] 2015 (“the child”).
4.That the child lives with the Applicant Mother.
5.That the Applicant Mother be permitted to travel overseas and interstate with the child without consultation with the Respondent Father;
6.That the Applicant Mother be at liberty to withhold from the Respondent Father the following information:
a)the Applicant Mother and the child’s residential address;
b)the full name of the Applicant Mother’s partner;
c)the name of the child’s school; and
d)the name of any of the child’s treating medical practitioners and allied health professionals.
On 11 May 2022, a Senior Judicial Registrar, on the hearing of the mother’s outstanding Contravention Application, made the following relevant findings:
1.The Respondent Father was provided with notice of the hearing this day and failed to attend.
2.The Applicant Mother has failed to establish that the Respondent Father failed to make an appointment for hair collection on 23 July 2021.
3.On 23 July 2021 the Respondent Father, without reasonable excuse, failed to attend at an Australian Workplace Drug Testing Service Clinic (or such other clinic locally available for hair drug purposes) and submit to a supervised collection of a hair sample, in contravention of Order 7 of the Orders dated 19 July 2021.
4.On 29 October 2021 the Respondent Father, without reasonable excuse, failed to provide the written details of the urine drug screen test results to all parties in these proceedings following the drug screen request made by the Independent Children’s Lawyer on 27 October 2021, in contravention of Order 8 of the Orders made on 20 October 2021.
5.On 18 December 2021 the Respondent Father, without reasonable excuse, failed to provide the written details of the urine drug screen test results to all parties in these proceedings following the drug screen request made by the Independent Children’s Lawyer on 16 December 2021, in contravention of Order 8 of the Orders made on 20 October 2021.
As a consequence of the above, the Court made a costs order against the father in the sum of $9,125.
At the final hearing, which ultimately proceeded on 28 June 2022, I made the following order:
1.The mother is granted leave to proceed on an undefended basis pursuant to rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The father failed to appear at the hearing. The father failed to place evidence before the Court as earlier ordered. He failed to prosecute his own case and failed to respond to the case as made before the Court by the mother.
Legal Principles
Part VII of the Act provides the statutory framework in which the Court’s jurisdiction, power and discretion to make parenting orders (as defined in s 64B of the Act) is exercised. The Court may make such parenting orders as it thinks proper,[2] within the context of the objects of the legislation and principles underlying those objects.
[2] Family Law Act 1975 (Cth) s 65D.
The principles and objects which underpin Part VII of the Act are set out in s 60B as follows:
(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.
Pursuant to s 60B(2) of the Act the principles underlying those objects, unless contrary to the child’s best interests, are as follows:
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[3] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[3] Family Law Act 1975 (Cth) s 60CC(1).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Section 60CC(2)(a) of the Act requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent. The High Court considered in M & M (1988) 166 CLR 69 what magnitude of risk would justify a Court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk, in that case of sexual abuse, to the child:[4]
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[4] M & M (1988) 166 CLR 69 at [25].
In the recent case of Isles & Nelissen [2022] FedCFamC1A 97 the Full Court of the Federal Circuit and Family Court (Division 1) Appellate Jurisdiction relevantly observed:
50In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
…
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
51We agree with and adopt that commentary as being a correct statement of the law.
The principles enunciated in the above cases are applicable in determining whether in the circumstances of the proceeding before me the child would be at risk of unacceptable harm within the context of s 60CC(2)(b) of the Act. Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[5]
[5] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Whilst the additional considerations as set out in s 60CC(3) of the Act must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[6]
[6] Mulvany & Lane (2009) FLC 93-404 at [77].
Section 61DA of the Act requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. If the presumption of equal shared parental responsibility does apply, or the Court is otherwise satisfied on the evidence that it is in a child’s best interests to make an order for equal shared parental responsibility, then the Court must consider whether it is in a child’s best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child’s best interests and reasonably practical for a child to spend substantial and significant time with each parent.
The presumption set out in s 61DA of the Act does not apply where there are reasonable grounds to believe that a parent has abused a child the subject of the proceedings or another child of that parent’s singular household at the time or engaged in family violence (s 61DA(2) of the Act). Further, the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4) of the Act).
“Family violence” is defined in s 4AB of the Act and is as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[7]
[7] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
Statements of fact in these reasons are findings of fact on the balance of probabilities.[8]
[8] Evidence Act 1995 (Cth) s 140.
Material Relied upon
Both the ICL and the mother relied upon the Family Report by Family Consultant, Ms B, dated 11 January 2022 and filed on 13 January 2022.
The mother relied upon:
(1)Further Amended Application filed 11 March 2022;
(2)her trial affidavit filed 11 March 2022;
(3)her outline of case filed 28 June 2022;
(4)affidavit of Dr C filed 8 December 2021;
(5)affidavit of Ms G filed 3 December 2021;
(6)affidavit of Mr H filed 26 November 2021;
(7)affidavit of Ms J filed 26 November 2021;
(8)affidavit of Ms K filed 19 November 2021.
The ICL relied upon:
(1)an outline of case filed 24 June 2022;
(2)section 67Z Response dated 4 January 2021;
(3)section 11F Report dated 14 July 2021;
(4)the psychological assessment and report of the mother by Ms A dated 20 September 2021 and filed 20 October 2022; and
(5)the psychological assessment and report of the father by Ms A dated 5 October 2021 and filed 20 October 2022.
Background
The mother was born in 1987 and is 34 years of age. The mother engages in home duties on a fulltime basis.
The father was born in 1989 and is 32 years of age. The father has been historically employed and, according to the Child Support Agency, earnt approximately $66,000 per annum. As at 8 March 2022, the father owed $3,699.54 by way of child support to the mother. However, at 7 December 2021, when the father was interviewed by the Family Consultant, he reported living “in [Suburb L] with the paternal grandparents and [as being] reliant upon Centrelink benefits.”[9]
[9] Family Report dated 10 January 2022, at [4].
The parties commenced a relationship in or around March 2011 and commenced cohabitation in March 2015. In 2015, X was born. The parties separated on a final basis on 6 May 2018 according to the mother and 10 May 2018 according to the father. Following separation, the mother and X moved out of the family home in Suburb M.
The child of the relationship, X, is currently in Grade 1. X lives with his mother and her partner, Mr R. X has not seen the father since the parties’ separation.
During Cohabitation
In late 2015, the parties purchased the family home in Suburb M and they and X moved from rental accommodation into that home.
In June 2016, the mother started using methamphetamines for a short period of time. She had a prior history of substance abuse.
In early 2017, the parties became engaged. It was at this point the mother says the parties’ relationship started starkly deteriorating. The mother commenced gambling which she says further contributed to the parties’ problems. The mother also recommenced using methamphetamines.
In late 2017, the mother lost her licence for three months because of her drug use.
In 2018, the father was charged by Victoria Police with threat to inflict serious injury – unlawful assault. The victim was the mother.
In mid 2018, and following separation in May 2018, the mother obtained a Final Intervention Order (“IVO”) against the father, for the protection of the mother and X. This IVO expired in mid 2019.
An Analysis of the Facts within the Legislative Framework
The parties provide competing accounts of their relationship.
The father’s account is in an early affidavit filed by him on 29 June 2021 and in his claims as made to the Family Consultant. The father was not available to be challenged on that earlier account given, nor in respect of his claims made to the Family Consultant. Accordingly, little or no weight can be given to his evidence.
The mother’s account was that during the parties’ relationship the father had been physically, financially and emotionally abusive toward her. The father “flatly denied family violence outside of the mutual verbal arguments”.[10] Rather, the father reported to the Family Consultant that the mother had “significant mental health issues resulting in erratic behaviours and mood swings” and that he was the primary carer of X. Both parties used methamphetamines, and the father “heavily” consumed alcohol, during the parties’ relationship.
[10] Family Report dated 10 January 2022, at [2].
In her interview with the Family Consultant the mother presented as “a confident woman with a strong personality and somewhat rigid views, and her recall in some circumstances was somewhat contradictory.”
The father presented to the Family Consultant as a “quiet, softly spoken, mild-mannered man.” He claimed he had “never ever been violent” and “was unaware of the extent of [the mother’s] illicit substance use during the relationship”. He otherwise reported that he had “attended a men’s behaviour change program in 2018”. Ms A’s expert opinion was that: [11]
[the father] does not present with a diagnosable DSM-5 clinical or personality disorder, and nothing untoward was observed during the assessment. There are signs of maladjustment in response to his relationship breakdown and sequalae that may have affected his self-esteem. There are no concerns about his physical health, cognitive function or substance abuse. His risk of violent offending is low.
[11] Affidavit of Ms A filed 20 October 2021, at [63]. As referred to in the Family Report dated 10 January 2022, at [47].
The mother provided numerous examples of family violence committed by the father against her. It was the mother’s evidence that in 2013, when the mother said no to having sex with the father, the father pushed her off the bed, pinned her to the floor with his knees, and punched her in the face.
The mother described 2013 as otherwise:
…a very difficult year for me due to both the above and personal reasons, and [two family members] passing away in reasonably close proximity. As a coping mechanism, I regrettably started regularly taking methamphetamines, approximately twice per week.
In late 2014, the mother’s “drug addiction was uncontrolled.”[12] It was her evidence that she “realised that if [she] did not do something, [she] was going to lose [her] job, [her] family and [her] friends. [She] also fell pregnant once again. [She] stopped using methamphetamines and encouraged [the father] to do the same.”[13] It is the mother’s evidence that the father’s ongoing “alcohol abuse and use of methamphetamines was a huge problem during [her] pregnancy and throughout the relationship”.[14] Both parties admitted to using methamphetamines and consuming alcohol during their relationship.[15]
[12] Mother’s affidavit filed 11 March 2022, at [28].
[13] Mother’s affidavit filed 11 March 2022, at [28].
[14] Mother’s affidavit filed 11 March 2022, at [30].
[15] Family Report dated 10 January 2022, at [33].
Other examples of family violence as set out in the evidence of the mother as perpetrated by the father against her were as follows:
·in March 2016, the father chased the mother out of the house with a fork in front of X. The father told the mother to “go and kill yourself, the world would be better off”;[16]
·on one occasion the father smashed a crystal bowl and threw a chair across the room;[17]
·in or around 2017 the father called the mother a “fucking dog” and “drug addict”;[18]
·the father would tell the mother on multiple occasions to “go and die” or to kill herself;[19]
·the father threatened the mother that if she were to leave him, he would “come and find [her] when [she] least expect[s] it and kill [her]”;[20]
·the father would regularly smash the mother’s belongings in anger;
·when the parties argued, the mother alleged the father:
“would often react by backing me into a corner and headbutting me repeatedly in the stomach. ….Sometimes, [Mr Morce] would stop headbutting me, and hold me pressed against the wall with his head against my chest, screaming, “hit me, hit me, hit me,” over and over again.
·in March 2018 at approximately 8:30pm one evening, the mother commenced vacuuming. The father threatened her and said words to the effect of “if you don’t stop what you are doing I’m gonna slit your throat”;[21] and
·the father claimed “all of [the parties’] money was his ‘fucking money’.”[22]
[16] Mother’s affidavit filed 11 March 2022, at [34].
[17] Mother’s affidavit filed 11 March 2022, at [35].
[18] Mother’s affidavit filed 11 March 2022, at [37].
[19] Mother’s affidavit filed 11 March 2022, at [34] and [37].
[20] Mother’s affidavit filed 11 March 2022, at [62].
[21] Mother’s affidavit filed 11 March 2022, at [42].
[22] Mother’s affidavit filed 11 March 2022, at [45].
Following X’s birth the mother recommenced working where she had worked before and during her pregnancy. During this time, X attended childcare weekly and was otherwise variously cared for by the paternal grandmother, Ms N; the father; and the maternal extended family.[23] The Family Consultant reported that:[24]
31.[The father] claimed that [the mother’s] [Medical Condition O] and methamphetamine use caused her to be unable to care for [X] effectively, that [X] was required to be in childcare three (3) days per week (where [the father] claimed [the mother] had forgotten to collect him on multiple occasions); and the grandmothers assisted in his care two (2) days per week and that he had been required to cease working weekends in order to care for [X]. [The father] identified himself as [X’s] primary carer prior to the parents’ separation as he was the parent who spent more of the time with [X] and met his daily needs.
[23] Family Report dated 10 January 2022, at [8].
[24] Family Report dated 10 January 2022, at [31].
Contrary to the father’s assertions, and as accepted by the Court, it was the mother’s evidence that she was forced to resign from her job four weeks after commencing it because:
47.…I would return home from work to find [X] screaming in his cot, having been left there for most of the day, noting that my shift was approximately six hours long. On one occasion I recall returning home and [X] was inconsolable. I asked [the father] if he had fed him and his response was, “I forgot.” The final straw was when I returned home from work to find [the father] passed out when he was supposed to be caring for [X]. I was devastated that [X] had been exposed to this and the neglect that he had suffered whilst in [the father’s] care. I immediately resigned from my employment.
The mother further described at [48] of her affidavit filed 11 March 2022, the father’s neglect and psychological abuse of X as follows:
When [the father] was angry at me, if I tried to get to [X] to protect him from [the father], he physically forced me out of the house, locking the doors so I could not get back in. [X] would scream for me through the door. I was terrified that [the father] would hurt him. On one occasion, he locked [X] in the bathroom and would not let me in to get him even though he was screaming at the door.
In the lead up to the parties’ separation, the father’s behaviour worsened. The mother described it, in particular, at [53]-[55] of her trial affidavit as follows:
I was leaning over the bathtub, which was full of water. There was a lamp on the bathroom bench. [The father] picked the lamp up, which was on, and threw it into the water. It was still plugged into the wall. I was terrified he was going to electrocute me. I started screaming, hoping that the neighbours would hear and call the police.
I managed to pull away from [the father] and he pulled the lamp out from the bath. He threw it into the lounge room. …[The father] chased after me and pinned me to a trunk that we kept in the lounge room. He was holding my legs very tightly. He was yelling at me about money and his friends.
Again, I managed to pull free from him. I ran into the bedroom and closed the door, frantically… [The father] managed to force his way in. …he was continuing to yell about money [and]… about all the drugs that he had taken. I tried to ignore him, hoping he would stop. As a result, [the father] got even angrier and put his hands around my throat, strangling me. He started shaking me and yelled, “you are going to listen to me.” After he let me go, he asked, “are you going to say sorry to me?” I responded by saying, “okay [Mr Morce], whatever you say.” I then left the family home and went to [the father’s] auntie’s home, [Ms P]. I sent her a text message which stated “[Mr Morce] put his hands around my throat and I need somewhere to go or the police will need to get involved”. [Ms P] responded “Come here if you need love.”
Approximately a month after this incident in 2018, the mother left the family home, taking X with her. They took up residence with the mother’s parents.
The father’s police records show that the father, in 2005, received a caution from Victoria Police after attempting to break into and steal several vehicles. On 14 April 2011, the father engaged in a physical fight with his brother in a taxi and on the roadside. No charges were laid. In October 2018, the father received a non-conviction order with an undertaking; a fine; and was ordered to attend a men’s behaviour change course in relation to his charges of assault and threats to kill wherein the mother was the victim.
The mother’s health
The mother suffers from anxiety, depression and post-traumatic stress disorder which she says has resulted from the father’s violent behaviours toward her and X. The mother reported to the Family Consultant that she was stable and engaged with her treating health professionals.[25] At January 2022, the mother had been prescribed “[various medications]” and was continuing to engage with Dr Q for her mental health needs and medication.[26]
[25] Family Report dated 10 January 2022, at [35].
[26] Family Report dated 10 January 2022, at [52].
The mother has been seeing Dr C, her psychologist, since 2016 “as she became anxious around leaving [X] in [the father]’s care”.[27] Around that time, the mother had “experienced suicidal ideation” and was diagnosed with depression.[28] The mother was subsequently referred to a psychiatrist who diagnosed her with Medical Condition O. Since that time, Ms A has undertaken a psychological assessment for the Court. Both Ms A and Dr C have noted that the mother did not show any signs of Medical Condition O during their time with her.
[27] Family Report dated 10 January 2022, at [52].
[28] Family Report dated 10 January 2022, at [52].
Dr C’s psychological report dated 5 December 2021 stated, relevantly, that:
·the mother’s fears of the father are genuine;
·“[X] was present during several verbal and physical outbursts of [the father] directed towards his mother, so I am confident [X] will harbour fear towards his father”; and
·if no time between X and the father was ordered by the Court, the mother “would be significantly relieved as she holds real fears for herself and that of [X]. I would anticipate a reduction in her PTSD, anxiety and depression”.
The mother continues to be terrified of the father, in particular what the father may do to her or X, and that the father “would follow [her] home in order to try and carry out his threat that he will one day find [her] and kill [her].”[29]
[29] Mother’s affidavit filed 11 March 2022, at [71].
Ms A described the mother as “a competent parent, who had overcome methamphetamine addiction”. Ms A indicated that the mother’s PTSD may be exacerbated if she was required to come in contact with the father. It was her opinion that the mother’s fears appeared to be real to the mother and were based upon the mother’s experiences. She otherwise had “no concerns for [the mother’s] physical health, cognitive function, or [of any] substance abuse.”[30] Ms A was satisfied that the mother continued to seek the support she needed.
[30] Affidavit of Ms A filed 20 October 2021.
X suffers from sensory issues, emotional regulation issues and anxiety. His paediatrician referred him to see a psychologist, Ms G in November 2020 to address these issues. The mother was in receipt of Early Interventions NDIS funding for X, which covered the expense of his psychologist sessions, Occupational Therapy sessions, play therapy, his paediatrician, and other allied health services until 23 June 2022.
Ms G prepared a report dated 25 November 2021 which is contained in her affidavit filed 3 December 2021. The Family Report accurately summarised at [36] Ms G’s psychological report of X as follows:
It was assessed that [X’s] communication and adaptive behaviours are below average, with his perfectionist and obsessive-compulsive behaviours elevated. It was assessed that [X] was unlikely to meet the criteria for an underlying neurodevelopmental disorder such as autism spectrum disorder (ASD) or attention deficit hyperactivity disorder (ADHD). “In the context of early developmental history, presenting concerns are more likely attributed to direct experience/witnessing traumatic event(s). If supervised access to [X’s] biological father is to be considered close monitoring of emotional dysregulation and avoidant behaviours associated with DSM criteria for 309.81 (F43.10) post-traumatic stress disorder is recommended.
X was 2 years of age at separation. The Family Consultant noted that X “reportedly has no memory of [his father]”,[31] and during her interview with X, X identified the mother’s new partner as his father and denied having any other father.
[31] Family Report dated 10 January 2022, at [10].
The child has a meaningful and positive relationship with his mother. He has no recollection of his father and has no current relationship with his father. The father has not had any input or active involvement of any kind in the child’s life since separation. He provides no significant financial support for the child to the mother, and his capacity and/or willingness to provide for X’s future financial needs both appear remote.
It is the mother’s evidence that X has made “a lot of progress” since the parties have separated.[32] The mother holds concerns that if any spend time was ordered between X and the father, supervised or unsupervised, that this progress would be undone.
[32] Mother’s affidavit filed 11 March 2022, at [79].
The mother’s evidence was that X is “thriving academically and enjoys learning”.[33]
[33] Mother’s affidavit filed 11 March 2022, at [9].
In relation to the parties competing proposals the Family Report Writer noted that:
17. During her interview, [the mother] sought for [X] to spend no time with [Mr Morce]. However, if the Court Ordered time to begin, she sought that this be professionally supervised and with the advisement of [X’]s psychologist.
18.In his Response filed 20 October 2020, [the father] sought equal shared parental responsibility for [X], for [X] to live with [the mother], to be excused from particularising further Parenting Orders at this time, for [the mother] to be restrained from removing [X] from Victoria, and for both parents to be restrained from denigrating the other to or in the presence of [X] or permitting another to do so.
…
21.During his interview, [the father] sought to re-establish his relationship with [X] via supervised time. He understood that should the Court approve this, that this would need to be professionally supervised before progressing to family in substantive attendance before unsupervised time could be considered. The writer advised [the father] that, regardless, the Court would not consider any time until he had completed the required Court Ordered hair follicle and urine screens and encourage him to complete these forthwith.
At the time of the Family Report, the father was “prepared to do whatever it takes” to spend time with X. However, since that time the father has not filed any trial material in the proceeding. The father has failed to comply with the Court orders requiring him to undertake hair follicle tests and supervised urine drug screens. The Court notes that the ICL made three written requests, on 27 October 2021, 16 December 2021 and 1 February 2022, to both parties requiring each of them to complete supervised urine drug screens. It is the mother’s evidence that she has not used drugs for over three years. The mother’s results have all been negative.
The mother reported to the Family Consultant that she “has been in a stable relationship [with her new partner [Mr R] and], that her partner has a good relationship with [X]”. I am satisfied that the mother is well supported by her new partner and by the maternal family.
Conclusion
The proceeding is undefended. The father has failed to participate to the extent of challenging the evidence of the mother at trial, and neither has he prosecuted his application for parenting orders by the placing before the Court of necessary evidence.
I am satisfied that in all the circumstances that an order rebutting the presumption of equal shared parental responsibility is in the best interests of the child. I am satisfied that the father has perpetrated significant family violence upon the mother and the child. The parties have not communicated since separation and are unable to do so, the mother because she is “terrified” of the father.
Given the serious family violence perpetrated by the father historically and as set out in the mother’s unchallenged evidence, and the father’s failure to provide clean drug screens, there is a need to protect X from being exposed to any further family violence and provide him with ongoing stability in his current living arrangements. I am satisfied that the father poses an unacceptable risk of harm to the child in these circumstances, and that the child should remain living with his mother and spend no time with the father as sought by the mother in the orders she seeks from the Court. Given the undefended nature of the proceeding, any possible amelioration of that risk is not able to be considered by the Court. There is simply no evidence going to that matter.
Given the mother’s real fear of the father, and the seriousness of the family violence as proven on the account of the mother, I am satisfied that an order for the mother to withhold information from the father such as a residential address, the child’s school, and the name of the mother’s partner, as sought by her, is an order able to be made on the material before the Court. The security of the mother and X promote the child’s best interests, both in an actual sense and also because the mother’s parenting capacity is enhanced by the making of such orders.
The Court will make the orders, in their totality, as sought by the mother.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 July 2022
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