Schild & Schild (No 2)
[2023] FedCFamC2F 746
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Schild & Schild (No 2) [2023] FedCFamC2F 746
File number(s): PAC 4364 of 2020 Judgment of: JUDGE STREET Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – PARENTING –interim orders – mother in hospital – unable to attend hearing – final hearing date vacated Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2021 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: A v A (1998) FLC 92-800
A & Z [2006] FamCA 179
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Masson v Parsons (2019) 266 CLR 554
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52
Potter and Potter (2007) FLC 93-326
Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 52 Date of hearing: 13 June 2023 Place: Sydney Counsel for Applicant: Mr P Livingstone Solicitor for Applicant: Matthew Dooley and Gibson The Respondent: Litigant in Person (did not appear) Independent Children’s Lawyer: Mark Macdiarmid Family Law Specialist ORDERS
PAC 4364 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SCHILD
Applicant
AND: MS SCHILD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE STREET
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.The matter will proceed with the interim application filed by the applicant as an undefended hearing and the Court otherwise vacates the final hearing date of the parenting matter.
2.The Court reserved its written reasons for all of these orders.
3.The matter is stood over for directions commencing at 9:30AM on 5 April 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
4.That Orders 2, 3 and 4 in “Annexure A” of the orders made on 30 July 2021 be and hereby are discharged.
5.That the Father has sole parental responsibility for the children in relation to decision about their international travel for the purposes of holidays, and they take the children out of Australia on temporary travel without the consent of the respondent pursuant to s 65Yof the Family Law Act 1975 (Cth).
6.That the Father has sole parental responsibility for the children in relation to decisions about where they shall live with him from time to time provided that the Father shall not relocate the children outside the state of New South Wales.
7.That the Father has sole parental responsibility for the selection of schools that the children are to attend from time to time.
8.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia on a date and at a time/s to be advised for the purposes of the preparation of a family report.
9.The respondent is to meaningfully engage with the ICL in relation to progression therapy with an appropriate expert for reintroduction of the mother to the children, in an environment least likely to cause any unacceptable risk, and with the intention through that therapy of progressing to communication by video and audio means, uses of a parenting app between the parties and, if appropriate, contact time and the applicant is to co-operate with the ICL in that regard.
10.The applicant is directed to file and serve an amended parenting application on or before 28 July 2023.
11.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
12.Liberty is granted to apply on three (3) days notice.
THE COURT NOTES THAT:
A.If there has been a continuing failure by the respondent to have engaged with the family report writer and/ or the ICL, the matter may proceed as an undefended hearing on 5 April 2024, in which final parenting orders might be made in accordance with the amending parenting application of the applicant file pursuant to order 10 above.
B.The family therapist referred to in the orders above may also be the person who has been allocated the responsibility of preparing the family report if so requested by the ICL.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Schild & Schild has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are parenting proceedings in relation to two children, X, born in 2013, and Y, born in 2016, which were fixed for a final hearing to take place starting today. Prior to this hearing date an application in a proceeding was filed by the applicant seeking the discharge of orders in respect of time between the respondent and the children and giving the father interim responsibility for overseas travel, that the children live with the father, and responsibility in relation to schooling.
BACKGROUND
The respondent mother failed to attend the hearing. The Court unsuccessfully endeavoured to contact the respondent mother on the mobile telephone number that was provided. The respondent mother had earlier conveyed that she was unable to meaningfully participate in the hearing and was unable to take steps pursuant to a section 102NA order that had been made, and the respondent mother was also the subject of the appointment of a New South Wales guardian and trustee in the property proceedings. The respondent mother has a serious mental illness and has spent a substantial period of the last few years in hospital due to her illness. The illness appears to have commenced in about 2018.
There was a most inappropriate and unacceptable physical discipline of a child that occurred in mid-2020 and there has been a history of verbal abuse and dysregulation. The respondent mother has not seen the children for almost a year and failed to take any steps under the orders that had been made by the Court on 30 July 2021 to spend time with the children for at least the last year. The Court made orders on 2 June 2023 facilitating the application in the proceeding filed by the applicant and noting that the respondent mother is still in hospital but has the benefit of the 102NA order and has not taken steps to obtain a legal representative pursuant to that order. The Court noted that the issue of whether there should be an adjournment of the final hearing was stood over to today’s hearing date, and the Court added a notation that it anticipated in the absence of any engagement by the respondent mother the Court may well vacate the hearing date and refix the matter to a further date later in the year suitable to the ICL and counsel for the applicant.
It is the case that the respondent was directed in order 2 to file the medical certificate relating to her current state and an affidavit explaining her current circumstances. No such document has been filed.
In determining to proceed in this interlocutory hearing an undefended hearing, the Court took into account the principles; Lanceley & Lanceley [1994] FamCA 94 as affirmed in A & Z [2006] FamCA 179 at [66] and Zane & Allen [2008] FamCAFC 115.
The Court has taken into account the overarching purpose and objectives in s 190 of the FCFCOA Act and the principles in s 43 and s 69ZN of the Act. The Court is satisfied that there has been default under r 10.26 of the Family Law Rules, enlivening the powers under r 10.27. The Court finds that there has been a failure by the respondent to comply with the procedural orders within rule 1.33 of the Family Rules. The Court is satisfied that this is an appropriate matter, in the interests of the administration of justice, and best interests of the children to proceed as an interim undefended hearing and has accordingly made an order to that effect.
Having raised the Court’s concerns in relation to procedural fairness the applicant did not press for the hearing date to proceed as a final undefended hearing.
CHRONOLOGY
Date Event 1982 Applicant father was born in Country B (41 years old) 1985 Respondent mother was born in Country D (38 years old) 2008 The parties commenced cohabitating in City E, USA 2011 The parties commenced living in Sydney 2013 The parties marry 2013 The child X is born (9 years old) 2016 The child Y is born (7 years old) 2017/ 2018 The applicant father observes unusual behaviour from the respondent mother Early 2018 Respondent mother is admitted as in inpatient to the Mental Health Unit at G Hospital. Early 2018 Respondent mother is discharged from G Hospital Early 2018 Dr H, psychiatrist, drops the respondent mother’s medication Early 2018 The applicant father is very concerned about the respondent mother’s mental health and has assumed the primary role of homemaker and carer for the children. Mid-2018 Respondent mother is detained as an involuntary patient at G Hospital Mid-2018 Respondent mother is discharged from G Hospital subject to a Community Treatment Order (CTO) pursuant to which the respondent mother was required to take antipsychotic medication by way of injection. Early 2019 A further CTO is made with ongoing injections Mid-2019 Further CTO is made with ongoing injections Late 2019 CTO expired and the respondent mother’s medication is changed at her request Early 2020 The applicant father observed changes in the respondent mother’s behaviour Early 2020 Respondent mother stops cooking proper meals for the children, fails to attend an appointment with a psychiatrist, and fails to attend scheduled appointed for an injection, and stops cleaning the apartment. 15 June 2020 The parties separate under the same roof Mid-2020 The respondent mother hits Y on the face and the police are called Mid-2020 Final AVO made against the respondent mother by consent for the protections of the applicant father and the children Mid-2020 Respondent mother is taken to G Hospital by hospital staff and the police and is again detained as an involuntary patient Mid-2020 A CTO is made which expires in 2021 Mid-2020 Respondent mother is discharged from G Hospital 24 August 2020 Date of filing of the applicant father’s initiating application 26 August 2020 An interim order is made for the children to live with the father Late 2020 Variation of CTO made in mid-2020 arising out of the respondent mother’s change of residence 1 April 2021 Orders made for the children to spend supervised time with the respondent mother on Saturdays 30 July 2021 Orders made for the children to spend supervised time with the respondent mother on Saturdays from 11:00am to 3:00pm. 2021 The applicant father and Ms J commence a relationship May 2022 Divorce order is made June 2022 The last time that the children spent time with the respondent mother Mid-2022 The police gain entry to the respondent mother’s rented unit, found her lying on the bed and acting under s 22 of the Mental Health Act, arranged for her to be transported by Ambulance to K Hospital Mid-2022 The respondent mother is admitted to a mental health unit at K Hospital where she becomes admitted firstly as a voluntary patient and subsequently as an involuntary patient Mid-2022 The applicant father and Ms J commence a defacto relationship Mid-2022 The respondent mother is very paranoid towards Hospital Case Manager and voice thoughts of harm towards her. She voiced wanting to die. Mid-2022 NCAT received report of Ms L which says to the effect the respondent mother does not wish to have any contact with the children. Mid-2022 The respondent mother is reported by a nurse as saying to her “I will not talk to you. I feel nauseous and I will vomit on you if you force me”. Mid-2022 The respondent mother was scheduled at K Hospital after complaining about Doctors and wanting to be discharged. The respondent mother tells a nurse that she does not want to see the Asian doctor saying that his English comes from the toilet and he is an abuser. Mid-2022 The respondent mother is evicted from her rented unit and items of personal property left in the unit were disposed of. Mid-2022 When served with NCAT Applications by Hospital Social Worker Ms L, the respondent mother became enraged and followed Ms L grabbing her arm and screaming “Sit your arse down right now”. Mid- 2022 Second opinion report of K Hospital Senior MO Ms N referring to the respondent mother’s florid psychotic illness and that she may well not be capable of acting in her own best interests in the longer term in order to keep her safe and housed. Mid-2022 K Hospital RN Ms O reports serving NCAT documents on the respondent mother who then became agitated and was yelling and swearing, ripped the document into little pieced and threw them at staff and then throughout the afternoon followed staff and yelled profanities and abuse at them. Mid-2022 K Hospital Clinical Psychologist Ms P reports that the respondent mother prefers to wear hospital gown than her own clothing and that the respondent mother says that she does not have any current mental health problems. Late 2022 Date of NCAT hearing and financial management and guardianship orders, the respondent mother refusing to participate in the hearing. Late 2022 Ms L serves NCAT Orders on the respondent mother who screams to her and Dr Q, “I hope you get raped and die” Late 2022 K Hospital RN Ms R reports that the respondent mother tried to punch a doctor, staff intervened and deflected the punch, that the respondent mother subsequently show minimal remorse and that a psychologist spent time with the respondent mother in the courtyard with security present. Late 2022 The respondent mother had no response to her pre-admission treating psychologist Ms S as to why she did not respond to daily attempts from the treating team to contact her for a period of 5 weeks before her admission. Late 2022 The respondent mother exits K Hospital for unescorted leave and does not return Late 2022 The respondent mother is admitted to T Hospital for the U Program 10 October 2022 A directions hearing takes place in the absence of the respondent mother and orders are made fixing these proceedings for final hearing. 10 November 2022 Letter from the applicant father’s solicitors via email requesting for the respondent mother to sign Country B Passport Application documents for the children. Late 2022 T Hospital RN Ms V reports the respondent mother yelling at her and other staff that she doesn’t know why they can’t do their fucking jobs properly and should all be sacked. December 2022 Applicant father failed an application in a proceeding relating to passports and international travel for the children. December 2022 Application in a proceeding served on the respondent mother who responds by email January 2023 The Guardianship Order lapses and a new financial management order is made to be reviewed in 9 months February 2023 Neuropsychology report of Mr W and Ms Z in relation to the nature and progression of cognitive changed in the context of ongoing stressors and psychiatric illness. The authors refer to a history of medication non-compliance. Early 2023 T Hospital JMO Ms AA reports the respondent mother as having a verbal outburst when discussing her neuropsychology report. Early 2023 Ms AA reports that the respondent mother seemed very keen to move to Country D with the help of her sister and wanted discharge within a few weeks. March 2023 Date of service of hardcopy letter from Matthews Dooley and Gibson solicitors to the person in charge of T Hospital (being a person referred to in Rule 2.37(2)) advising of the hearing dated and enclosing copies of the orders made on 10 October 2022 and 7 March 2023 Early 2023 Ms AA reports that the respondent mother has cancelled plans to go to Country D due to Family Court issues. Early 2023 T Hospital Social Worker Ms BB reports handing to the mother documents received from ex-husband’s solicitor and discussing the October and March orders with the respondent mother. Early 2023 Date of printing of T Hospital documents to be produced under subpoena such that there are no records produced after that date Early 2023 Email from the respondent mother to the Court advising that she remains in hospital for mental health reasons. 27 April 2023 Chambers orders are made by Judge Street granting access to the parties, including ICL to have photocopy access of the NCAT material produced to the Court. 26 May 2023 Chambers orders are made by Judge Street listing the matter for directions on 2 June 2023. The respondent mother is directed to file and serve an affidavit explaining the steps that she has taken to obtain Legal Aid and her current mental health, including supporting evidence in respect to the final hearing listed for 13 – 15 June 2023. 2 June 2023 Directions hearing occurs without the appearance of the mother. Orders are made by Judge Street directing that any application in a proceeding by the application regarding overseas travel, including interim application relating to property other parenting is to be filed and served within 7 days. The respondent is directed to file ad serve any medical certificates and/or reports regarding her current mental health state and ability to participate in the final hearing listed for 13 – 15 June 2023 alongside a supporting affidavit. 7 June 2023 Chambers orders are made on a final basis that the respondent mother is a person in need of a litigation guardian and NSW Trustee and Guardian is appointed for property proceedings only. The financial aspects of the proceedings were dismissed. EVIDENCE AND SUBMISSIONS
The Court admitted into evidence the affidavits and documents identified in the applicant’s case outline filed on 6 June 2023 as well as the further affidavits dated 7 June and 9 June 2023. The Court raised with counsel for the applicant and the ICL whether it was appropriate to keep in place orders of the kind that permitted the father to allow time with the children. The counsel for the applicant correctly identified that the respondent had failed to engage in the proceedings to date and that significant cost had been incurred, and that the nature of these proceedings was imposing a significant strain on the applicant as well as financial impact due to circumstances relating to the failure of the respondent to have engaged properly in these proceedings.
The Court notes that there is information in the tender bundle marked Exhibit B, identifying the respondent acting angrily and aggressively in September 2022, and that she was dependent on medication to manage her worsening mental health condition. Other material includes an attendance by police in mid-2022, where the respondent was unconscious. The diary notes include the domestic violence episode in mid-2020, and that the respondent admitted that she hit the child on the face and identified closed fist behaviour, putting the applicant in apprehension. The Court notes that the police asked for a demonstration in relation to the smack and were satisfied it was not excessive.
The respondent was identified as suffering from a serious mental illness, was described as highly irritable and agitated, as well as suspicious and not feeling safe, and was verbally aggressive and said to be not caring for her children. The respondent was also identified as being uncooperative on that occasion. The respondent admitted that she had not been compliant with her tablets on that occasion. Medical notes identify that the non-compliance with medication had occurred for a number of months. There is an admission record of mid‑2022 in relation to the respondent, identified as having a serious mental illness, reporting to record that she does not wish to have any contact with her kids or ex-husband, or referring to family overseas. The records for mid‑2022 identify the respondent as being found unresponsive by the police, and identified her first mental health episode as occurring in early 2018, with further episodes in mid-2018 and mid-2020. There is a social worker report dated 4 April 2023 that identifies the respondent wants shared custody in relation to her children, that wants legal support.
There is a report dated, or at least there is a record in early 2023, that identifies the respondent’s sister as hoping to help move her to Country D on discharge from hospital, and a report dated March 2023 that overall the respondent has made a good recovery. There is a psychology progress note dated March 2023, that the respondent’s mental health has improved significantly since last year and that her children are her only motivation for staying in Australia. There are progress notes printed in April 2023 that identifies the respondent taking multiple medications, and that the combination may have some disruptive effect on her cognitive functioning, and that the respondent has experienced a complex series of intense stressors, and that the respondent in response to testing was rigid and inflexible, and at times hyper focused. Reference is also made to the respondent’s fatigue when referring to the respondent’s cognitive changes, and strategies promoting an increased sensitivity to her cognition being premature and the need for that to occur with psychological treatment.
There is a note dated December 2022 that identifies aggressive verbal behaviour, and in January 2023, the applicant being dysregulated, agitated and disorganised. There is a diary note of October 2022 that records the respondent has a history of aggressive communication directed at her family/children, and more recently health staff. There was a further note in March of 2023 that identifies the respondent being dysregulated, shouting and yelling and being verbally abusive, and being increasingly more dysregulated. There is a note in relation to verbal abuse that occurred in September 2022, as well as a note in July 2022 that the applicant was very paranoid towards her case manager.
The applicant’s affidavit dated 31 May 2023 identified the history of the proceedings and the steps that have been taken to try and bring the matter on for trial. The affidavit dated 7 June by the applicant referred to the final apprehended violence order made against the respondent for the protection of the children and the applicant on 30 June. The applicant said that order was made as a result of aggression on the part of the respondent, including hitting the youngest son, who was then aged four years, on the face. The applicant identified concern that if the applicant is discharged she will attempt to resume spending time with the boys and engage in verbal and physical aggression. The Court also notes in the applicant father’s tender bundle there is a record in September 2022 referring to the respondent’s escalated behaviour, being threatening, intimidating and verbally aggressive, and recording that the respondent tried to punch a doctor and that staff intervened, deflecting the punch.
The counsel and the respondent acknowledged the surrounding circumstances, including that the New South Wales Trustee and Guardian had been appointed for the respondent in the property matter and the ongoing hospitalisation and apparent failure of the respondent to have taken steps under section 102NA as well as the apparent difficulty of the respondent to understand documents and potentially the orders of the Court.
Mr Macdiarmid, the ICL, identifies that this is a matter where, given the lapse of time that has now occurred between the mother and the children, it would probably be in the best interests of the children for there to be some re-engagement therapy before the Court made orders about spend time or video/audio contact. Mr Macdiarmid identified that there had been previous outbursts by the respondent that appeared to blame the applicant for the current state of affairs and that if this were communicated through video or audio contact in an unregulated environment this could do unintended emotional harm to the children and adversely impact on their relationship potentially with both parents.
The tender bundle material from the applicant identifies a very substantial period of hospitalisation and relatively recent ongoing aggressive verbal behaviour by the applicant, including threatening to punch out a doctor. The Court does not have the benefit of a family report or a child inclusive report in this matter and is persuaded by the ICL that the most appropriate, cautious approach would be for the respondent to engage with the ICL for the purpose of participating in family therapy rather than the making of an order for steps to be taken by the applicant that could give rise to unnecessary dispute that would not be in the best interests of the children.
Mr Livingstone foreshadowed that it appeared that the respondent may not participate in any further steps in these proceedings and was most concerned about the applicant having to incur further cost or participate in further steps that may be unnecessary. Least the applicant did not, however, oppose an order facilitating engagement with therapy by the respondent, and if the ICL was satisfied that it was meaningful and appropriate, the applicant cooperating with the ICL in relation to that possible reintroduction therapy.
The applicant also did not oppose the making of an order for the preparation of a family report and the Court has facilitated the ICL being able to use the same person if the ICL so sees fit as he is preparing the family report for the purpose of the therapy or some other suitable expert. The report has taken into account the parenting principles and statutory provisions in relation to the statutory pathway as identified below.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents.
Best Interests of the Child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ [At 173]
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(emphasis added)
Issue of Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
Additionally the following guidance emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Being interim parenting orders the Court has taken into account the short form reasons power in s69ZL.
FINDINGS AND CONCLUSIONS
The Court is satisfied that the interim parenting orders sought by the applicant in the application in a case are in the best interests of the children. The Court notes that it is the Court is satisfied that there has been family violence which has included physical discipline of one of the children in 2020 on one occasion, as well as neglect by the respondent but displaces the presumption of joint parenting in relation to the orders sought in the application in a proceeding.
The Court has taken into account the primary considerations and benefit to the two children of having a meaningful relationship with both parents that must in accordance with section 60CC(2A) give greater weight to the primary consideration as to the need to protect the children from physical and psychological harm and from being subjected to or exposed to abuse, neglect or family violence. In the circumstances of this case at an interim stage, the Court is satisfied that there is an unacceptable risk of psychological harm to the children through abuse, neglect or family violence so as to warrant that the children live with the father, and that both communications with the children and time with the children should only progress through family therapy coordinated by the ICL.
The Court finds that there is an unacceptable risk of psychological harm to the children through the respondent engaging in possible abuse and blame of the applicant if permitted to communicate and spend time with the children prior to meaningful engagement by the applicant with family therapy to reintroduce the children.
The Court has also taken into the additional considerations in section 60CC, subsection (3). At this stage, no views have been expressed by the children, however, the Court has facilitated the preparation of a family report that will do so. At this stage, the children do not appear to have a relationship, at least have not had contact with the mother for over a year, and the respondent mother has not engaged in meaningful parenting of the children for a substantial period of time and needs reintroduction for the best chance of that relationship to be meaningful.
The Court takes into account that the respondent mother has not participated in the opportunity that she has been given to spend time with the children for the last year pursuant to the orders that were made in July of 2021.
The Court is of the view that the respondent is not currently capable of making major long term decisions of the kind addressed in the proposed orders by the applicant – interim orders by the applicant.
The Court has taken into account that there has been no communication with the children for almost the last year by the mother.
The Court has taken into account that the respondent has not fulfilled her parental obligations to the children for a substantial period of time.
The Court has taken into account that the proposed orders sought by the applicant create the least change in the child's current circumstances.
The Court is alive to the potential adverse effect from the children not spending time with and communicating with the mother and engaging in self-blame. It is for these reasons that the Court has facilitated an order for the respondent to meaningful engage with the ICL for reintroduction therapy to ensure a safe environment and maximise the possibilities of a re‑engagement in a meaningful relationship with the respondent mother.
The Court notes the respondent mother has no other relatives living in Australia, having moved here from Country D more than a decade ago.
The Court has taken into account that the proposed orders do facilitate a method for communication by the respondent provided there is a meaningful engagement with family therapy by the respondent through the ICL.
At this stage the Court is concerned that the respondent lacks capacity to discharge her obligations of parental responsibility due to her current mental state. The Court has taken into account the relatively young age of the children in relation to the proposed orders. The Court notes that the children do not fall within section 60CC(3)(h). The Court has indicated the children have not at this stage expressed views. The Court has taken into account that there has been family violence and that there was an ADVO in place in relation to one of the children and the respondent, and that there has been neglect and family violence, as identified above. The Court has taken into account that family violence orders have been made, but that there is no current order. The Court has taken into account the need to try and prevent further proceedings, as well as the need to bring these proceedings to an end. The Court is satisfied that the proposed interim orders as now made by the Court are in the best interests of the two children.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 June 2023
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