Shearer and Amhurst
[2016] FCCA 2138
•11 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHEARER & AMHURST | [2016] FCCA 2138 |
| Catchwords: FAMILY LAW – Parenting – children aged 7 and 3 – limited relationship between older child and father – younger child with high needs – no relationship between younger child and father – high conflict between parents and extended families – father’s continued drug use – capacity of each parent – attitudes of each parent – risk of harm to children – children to live with mother – children to spend no time with father – children’s surnames. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68B |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 Nikolakis & Nikolakis [2010] FamCAFC 52 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MS SHEARER |
| Respondent: | MR AMHURST |
| File Number: | PAC 2661 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 9, 10 and 11 August 2016 |
| Date of Last Submission: | 11 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 11 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | John Stonham & Co |
| Counsel for the Respondent: | Mr Yakenian |
| Solicitors for the Respondent: | Yakenian Solicitors |
| Counsel for the Independent Children's Lawyer: | Mr Grew |
| Solicitors for the Independent Children's Lawyer: | JPM Legal |
ORDERS
All previous parenting orders relating to the children X born (omitted) 2009 and Y born (omitted) 2013 be discharged, except orders 4 and 5 of the Orders made on 21 March 2016.
The father shall not spend time with, nor communicate with, nor attempt to communicate with the children or the mother.
Pursuant to section 68B of the Family Law Act1975, the father shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach the mother or the children by any means whatsoever, including through any third party, and further the father is restrained from:
(a)Attending at, or being within 100 metres of any place of residence of the mother and/or the children at any time;
(b)Attending at, or being within 100 metres of any school, pre-school or any such educational institution attended by the children at any time.
On or before 1 December 2016, and every six months thereafter, the mother shall forward to the father by ordinary pre-paid post to his last known address between one and three current photographs of each child and a brief description of each child’s health, welfare and education.
The parties shall not denigrate the other party in the presence or hearing of the children, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the children.
The mother be permitted to change X’s surname by hyphenating it and the mother’s surname, Shearer.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Remove all outstanding issues from the list of cases awaiting finalisation.
THE COURT NOTES that Orders were made on 21 March 2016 that:
(A)The mother has sole parental responsibility for the children; and
(B)The children live with the mother.
IT IS NOTED that publication of this judgment under the pseudonym Shearer & Amhurst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2661 of 2013
| MS SHEARER |
Applicant
And
| MR AMHURST |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in respect of two children of the parties:
a)X born on (omitted) 2009; and
b)Y born on (omitted) 2013.
Both children live with their mother. The older child has not spent time with his father since July 2014 and the younger child, except for a few minutes on two occasions, has not spent any time with her father at all.
The mother seeks that there be an order for no time with the father.
The father seeks that he spend time with the children each alternate weekend, but in cross-examination he said “I’ll take anything… I want to be a father… I’m trying to get a father’s rights.”
Before the Court was also the issue of the children’s surnames. The father sought an order that the younger child’s surname be changed to his surname, while the mother sought an order that the older child’s surname be changed to hers.
There are many difficulties in this matter for the children and their relationship with the father, not only because of the father’s drug use and the limited time they have spent with the father, but also because of the younger child’s significant medical issues and disabilities.
The Evidence in the Proceedings
Short Chronology
The father was born on (omitted) 1986.
The mother was born on (omitted) 1988.
The parties commenced living together in early 2008 and they were married in (country omitted) on (omitted) 2013. The parties separated in June 2013.
There are two children of the relationship as noted at the commencement of these Reasons for Judgment. X, who is now 7 ½ years old, was 4 years old when the parties separated. Y, who is just about to turn 3, was yet to be born at the time the parties separated.
On 25 June 2013 the mother filed her Initiating Application in this Court.
On 11 July 2013 a final Apprehended Domestic Violence Order was made by consent for the protection of the mother and the oldest child from the father.
Y was born on (omitted) 2013 with severe and serious medical conditions. The father was not told at the time and indeed did not learn until the final hearing in August 2016 of the severity of those conditions.
On 11 December 2013 final parenting orders were made by consent. Those orders provided for the parties to have joint parental responsibility for both children and that the children live with the mother.
A number of interim orders were also made on that date, including that the older child spend time with the father each alternate Saturday from 10am to 4pm and otherwise as agreed between the parties, and that the younger child spent time with the father as agreed between the parties. The time between the older child and the father was to be supervised by the maternal grandmother who signed an undertaking to supervise such time and not to permit time to occur between the child and the father if she was of the opinion that the father was under the influence of drugs or alcohol.
The father also consented to an order for drug urine analysis and for time to be suspended if those test results returned positive.
In September 2014 the Independent Children’s Lawyer confirmed that time pursuant to the December 2013 orders for the children to spend time with the father was suspended as a result of the father returning a positive drug test.
The father has not spent any time with the older child since July 2014 and has only met the younger child for a few minutes on two occasions.
The matter had been set down for hearing initially in March 2016, but that final hearing was vacated because the father had not filed his material, contrary to orders made, as at the first day the matter was listed for hearing.
On 21 March 2016 all prior final parenting orders were discharged and orders for the mother to have sole parental responsibility for the children, and for the children to live with the mother were made by consent.
Furthermore, a costs order in the amount of $3072 was made against the father. As at the date of final hearing in August 2016, the father had not met his obligations with respect to that costs order.
The Mother
The mother relied upon the following documents:
a)Amended Initiating Application filed 1 December 2014; and
b)Affidavit of Ms Shearer sworn/affirmed on 22 January 2016.
The mother in her Affidavit, makes a number of allegations of serious domestic violence, including financial control, against the father. She also makes allegations of drug use by the father throughout the relationship.
Some of the allegations which the mother makes are quite specific. For example, she alleges that in late 2011 the father flew into a violent rage for no apparent reason. She alleges that he got a carving knife from the kitchen and was chasing her. The mother says that she grabbed X and locked the two of them in the bathroom. She says she hid X in the bath tub with clothes over him.
X talks about this incident in the Family Report however; he says that it is something that his mother told him about. It does not appear to be an incident that he has any independent recollection of.
The father denies all allegations of physical violence.
The mother described the father as having a very strong personality and being domineering. She confirmed in cross-examination the specific allegations of violence which she made in her Affidavit. She said that she never called the police because she wanted to protect the father, that she had loved him and that after being violent he would always apologise and she believed him. The mother’s evidence was that the father’s aggression was tied to his drug use, and that his use of drugs and aggression increased over time.
It was conceded by Counsel for the mother that the allegations of violence were assertions with no corroborating evidence, and as such the Court would not be able to make any findings of fact in that regard.
The mother has tried cannabis in the past and she has also experimented with cocaine. She denies drug use to the extent alleged by the father.[1]
[1] Such allegations are contained below under heading “The Father”
The evidence of the mother was that there is nothing that the father would or could do that would make her feel comfortable about the children being with the father. She confirmed in cross-examination that she cannot put the past behind and allow the relationship between the children and their father to occur.
The Court finds that the mother has no capacity to foster a relationship between the children and their father. This is not a finding of some inherent incapacity of the mother to foster such a relationship, it is an incapacity borne out by the parties’ behaviours and beliefs.
The Father
The father relied upon the following documents:
a)Response filed 10 October 2013;
b)Affidavit of Mr Amhurst sworn 18 March 2016 and filed on 21 March 2016; and
c)Affidavit of Ms A sworn 18 March 2016 and filed on 21 March 2016.
Even though the father’s Affidavit was somewhat lengthy, there was a great deal of irrelevant material contained in the Affidavit, and evidence which would have been of assistance to the Court in determining relevant issues was missing.
The father gives evidence of the parties’ early relationship and history, including significant criticism of the mother and her extended family. For example, the father alleges that the house where the parties lived after X was born was:
More often than not extremely dirty and untidy. Ms Shearer would keep the dirty unwashed laundry in the bathtub; and X’s room had so many clothes and other things on the floor I couldn’t’ see the floor.
It is difficult to understand why the father considered such evidence to be relevant to the issues which the Court needed to determine, particularly in light of the orders made by consent on 21 March 2016.
In his Affidavit, the father also gives some evidence of his relationship with X when the parties were still together, including taking his (hobby omitted) to X’s school and showing them to the children. The father asserts that he was involved with a lot of the functions at the school such as Easter hat parade, teddy bear’s picnic, Christmas concerts and any function that the child participated in.
The parties of course separated in June 2013, shortly after X had turned four years old. Any involvement which the father had at X’s “school” could only have been a reference to the preschool which X attended.
The father says that after X was born he was working full-time and indeed that he had moderate success in his business, which he built up and worked very hard on. At his busiest, the father had up to 15 employees including himself. If the father is to be believed about how hard he worked then it is likely that he was away from the family home for long hours and as such had limited opportunity to spend time with X.
In about May 2012 the father joined the (omitted) Motorcycle Club. He says he needed to look after his younger brother, who was the President of the (omitted) Chapter of the Club. He did not stay in the Club for long, and at the time of hearing was not a member and had not been a member for some years.
In respect of his drug use the father says that he was first introduced to cocaine by the mother’s brother and that both he and the mother used cocaine intermittently. The father started using cannabis, he says, only to help alleviate his back pain. The father says:
At no stage did I use any other drug other than Cannabis and Cocaine, and have not used Cocaine for many years, since I left the (omitted) motor cycle club.
During cross-examination various prior inconsistent statements contained in the father’s earlier Affidavits were put to him in respect of his historical and current use of drugs. In respect of his historical use of cocaine during cross-examination the father said that he did not know how the cocaine got into his drink and that he believed that his drink had been spiked by the mother’s brother. The father admitted to using the drug Xanax recreationally in the past, but denied ever using the drug “ice”.
The father also said that he has not smoked cannabis since last week[2] and that he has been trying really hard to give it up. He spends about $20-$30 per week on his cannabis use. The father says that his continued use of cannabis is for medicinal purposes.
[2] The father was cross-examined over a period of two days commencing on Thursday, 11 August 2016 and concluding on Friday, 12 August 2016. He said in cross-examination that he hadn't smoked any cannabis since Friday of the previous week. At the time that he commenced his evidence this was a period of less than seven days.
The parties’ relationship, according to the father, was one marred by yelling and arguing. The father was unfaithful to the mother. The father however denies being the perpetrator of any physical violence, which the mother alleges in her case.
After the parties’ separation, the mother gave birth to their younger child. The father was not told about the birth, nor the significant medical issues which the child was born with. The father met Y for the first time at Court on the day interim orders were made in December 2013. The second time he saw his daughter was for a few minutes on the side of a road when he met up with the mother.
In respect of X, the father says:
My situation with X has not been any better. I saw X every second Saturday for a few months, until Ms Shearer stopped those visitations because of certain drawings made on X’s belly that I didn’t even know about. I have not seen my son for almost 2 years. I have missed so much. I have been kept out of his personal life, as well as his schooling and sporting life. I have not been able to attend any school events, or obtain any school reports to see his progress. The only thing I have of X, are his school photographs, which I have received from my mother.
Despite time between the father and X being suspended by the Independent Children’s Lawyer in September 2014 as a result of the father failing his drug urine analysis test, that is, returning a positive test for cannabis, the father, two years on, blames the mother for the fact that he has not spent any time with X.[3] He does not take any responsibility for what has occurred. Since the orders of December 2013 the father has not returned a single clean urinalysis result nor has he complied with all of the requests for such tests to be undertaken.[4]
[3] The Court accepts that the mother initially stopped further time from occurring when X returned from spending time with the father with ‘graffiti’ on him, this having occurred in July 2014
[4] See paragraph 102 of these Reasons, which sets out an agreed schedule of requests for your analysis and tests conducted
Even though the father’s trial Affidavit is 41 pages long, with 72 paragraphs of text spread over 11 pages, and 30 pages of Annexures the father gives extremely limited evidence about matters which occurred post separation and in support of his proposal for time with the children - such evidence being contained in less than two pages of text.
In his Affidavit the father says “I am willing to do anything to show that I am suitable to see my children.” The Court is of the view that if the father was sincere in his intentions to show his “suitability” as a parent he would have done everything possible prior to the hearing date to demonstrate his capacity as a parent, his attitude to the children, his willingness to improve his parenting skills and very importantly he would have engaged in a drug rehabilitation program and ensured that he was no longer a regular user of cannabis. He has not done any of these things.
After observing the father in the witness box and having listened to his answers, I find that he is a witness of little credit. In this regard, I took particular note of the father’s answers to questions asked by the mother’s Counsel in relation to certain matters which were noted in the subpoenaed material produced by NSW Police. A series of events dating from June 2013 to July 2015 were put to the father, to the majority of which the father responded with answers such as “I don’t remember… That never happened… These are all just allegations.”
The behaviour described in the police material is at times remarkably similar to the behaviour which the mother alleges the father engaged in while the parties were together. By remarkably similar I don’t mean in terms of the events which are described, but rather in terms of the behaviour which is reported of the father both by the mother and by independent third party observers being police officers.
During cross-examination the father tried to minimise any of his behaviours which might be viewed negatively by the Court. The father, during this hearing, missed the opportunity of impressing upon the Court that he took responsibility for the events which have taken place during the parties’ relationship and also post separation, and indeed impressed upon the Court as a person who took little, if any, responsibility for his own actions. His answers included statements to the effect of “I feel like a victim… I only want to be a father… A little bit of help from the system… I’ve never been told what to do I’m only young…”
The father was a most unimpressive witness.
The Paternal Grandmother
The paternal grandmother gave evidence in the father’s case. Her Affidavit, like the father’s, contained a significant amount of irrelevant material. The paternal grandmother evidence that “they won’t let us see our grandchildren” and “I want Mr Amhurst to have his kids” was indicative of her attitude, and probably reflective of the attitude of the paternal family towards the mother and the maternal family. Such matters were also identified in the Family Report. The evidence was also reflective of a lack of child focus and insight.
The evidence of the paternal grandmother confirmed to the Court the difficulties facing the children if they were to spend time with the father, namely the significant conflict between the two extended families.
During cross-examination the paternal grandmother indicated that she would be commencing proceedings in her own right for the children to spend time with her. At this point in the hearing the Court invited the parties to consider whether they had any applications to make. No applications were made by either the mother or the father as a consequence of the paternal grandmother’s evidence.
The Family Report Writer
Dr L, who was the author of the Family Report[5] dated 17 August 2015, was cross-examined in the proceedings. Upon her reading the updating material relied upon by the parties, the recommendations made by Dr L made in the Family Report were not altered.
[5] Contained in the family report are statements such as “the accounts of the parties are so discrepant that it raises questions about their honesty and integrity and that will need to be tested by the court.” Such statements are of no assistance to the court and are not relevant. It is not up to the court to test the evidence, this is a matter for the parties who are partaking in litigation in an adversarial system.
The role of the family report writer is to give opinion evidence about matters which are based on specialised knowledge which itself is based on the person’s training, study or experience. Otherwise it is difficult to see how any evidence of a family report writer, which is not expert evidence, while not inadmissible purely on the basis that it is either hearsay and/or opinion evidence , could not be said to be evidence which could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings
The Family Report identified a number of concerning aspects of the case, namely:
a)the serious allegations of family violence made by the mother and with it the impact of the violence on the parenting capacity of both parents;
b)the continuing acrimony between the maternal and the paternal families;
c)continued drug use of the parents[6] and other family members who are in the children’s circle of influence;
d)an extreme level of immaturity and poor emotional regulation on the part of the adult players on both sides;
e)X being highly attuned to the possibility of conflict erupting between his parents;
f)X being a hypervigilant child who perceives his mother to be the victim and his father to be the perpetrator[7]; and
g)the impossibility for X, of his own admission, to have the presence of both families contemporaneously in his life.
[6] The evidence is however that it is only the father who continues his use of illicit drugs
[7] Presumably of violence
In the opinion of the expert supervision of time between the children and the father was proposed due to the inappropriateness of the interaction of the father and X as observed by Dr L, rather than simply arising from the need to protect X from his father’s continued drug use. If time was to occur at all, supervision in a broader context was indicated. An order for ‘identification time’ was considered to be of some utility, but the expert had reservations about the ability of any supervisor to facilitate such time given the history of parental conflict and the father’s behaviour.
Dr L opined that it is never too late to repair relationships. X had a clear notion of his father and there is always a concern with children who have such a notion that with the passage of time curiosity about the absent parent will increase.
Within a very short period of time during the observations with Dr L, the initial apprehension which X showed thawed very quickly. As children grow older however, it is more difficult for such initial apprehension to thaw. Therefore it was difficult to say how X would react to spending time with his father at the time of the hearing, noting that the Family Report was finalised 12 months before the final hearing.
To Dr L, X did not appear fearful of his father during the observations. He presented as a child who wanted to please his father.
The father presented as a needy and immature man to Dr L. The expert was of the opinion that the father may place X in a role where he would be nurturing the father rather than the other way around, and that such a role reversal was inappropriate.
The parents and the extended families, to Dr L’s observations, continued to engage in conflict and acrimony. This had been demonstrated on that day that the Family Report interviews took place, when an incident occurred involving the adults from both families.
If the parties continued to act in a manner similar to how they had been acting to date, the short term risks to X if time was to occur in a safe and supervised environment, were identified as being mental health issues, cognitive delays, and behavioural and emotional symptoms.
Dr L assessed the long term risks to the children of not spending time with father are real and quite high. These risks were identified in the Family Report. It was said that children who were denied a relationship with one parent on the long term run a high risk of suffering from anxiety, depression, poor self-esteem and self-destructing acting out behaviour and impairments to their psychosocial development.
Dr L assessed that the short term risks to the children of being exposed to inappropriate behaviour are high probability risk. Furthermore, in the opinion of the expert the short term risks are so real and so palpable, that they may create a situation where any orders the Court makes would anyhow become untenable.
Documents Tendered
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit 1 - Confidential address for the Mother;
b)Exhibit 2 - Confidential address for the Father;
c)Exhibit 3 - Pathology Report by Dr J for the Father;
d)Exhibit 4 - Family Report of Dr L dated 17 August 2015;
e)Exhibit 5 - Letter from JPM Legal dated 2 September 2014 and 16 September 2014 addressed to Mr Amhurst;
f)Exhibit 6 - Bundle of Letters to Mr Amhurst from JPM Legal sent to Mr Yakenian, the Solicitor for Mr Amhurst dated 23 March 2016, 27 April 2016, 26 May 2016, 27 June 2016 and 26 July 2016 requesting the Respondent to undertake Urinalyses Testing.
g)Exhibit 7 - Certificate of Attendance (Anglicare);
h)Exhibit 8 - Subpoenaed material produced by NSW Police, being Sleeve 9, pink tabs
i)E 58436145 page 2 of 17 dated 26/07/2015;
ii)E 57886844 page 3 of 17 dated 12/06/2015;
iii)E 52221033 page 7 of 17 dated 27/08/2013;
iv)E 54909588 page 8 of 17 Date 20/08/2013;
v)E 54765583 page 9 of 17 dated 18/08/2013;
vi)E 53948282 page 10 of 17 dated 5/08/2013;
vii)E 51995119 page 11 of 17 dated 21/06/2013 to 22/06/2013; and
viii)E 50544820 page 13 of 17 dated 29/04/2013.
i)Exhibit 9 – Subpoenaed material produced by NSW Police being Sleeve 8, yellow tabs
i)1 page 2 of 14 dated 12/06/2015;
ii)2 page 3 of 14 dated 09/04/2015;
iii)3 page 4 of 14 dated 27/02/2015;
iv)5 page 6 of 14 dated 05/08/2013;
v)6 page 7 of 14 dated 22/06/2013; and
vi)7 page 9 of 14 Date 13/01/2013.
j)Exhibit 10 - Minute of Orders Sought by Independent Children’s Lawyer.
k)MFI 1 - Urine Test Schedule from December 2013 in relation to the Respondent Father, Mr Amhurst.
In coming to the conclusions the Court has had regard to the above Exhibits, the witnesses’ evidence in chief and the relevant cross examination of the witnesses.
Best Interests Considerations
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child/ren the subject of the proceedings.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[8] It is well recognised that the additional considerations may outweigh the primary considerations.[9] In applying the primary considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (2 )(b).
[8] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[8] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
[9] see for example Slater & Light [2011] FamCAFC 1at [45]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s.60CG (1)(b)[10]. The Court may include[11] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[10] See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[11] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
In Starr & Duggan[12] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[13]
[12] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[13] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
Parental Responsibility
The question of parental capacity to implement arrangements and to communicate and resolve difficulties are important issues in this matter. This is particularly so because of the significant medical issues which the younger child suffers from.
By virtue of the orders made by consent in March 2016, the parties had agreed that it was in the children’s best interest for the mother to have sole parental responsibility for the children.
Relevant Additional Considerations
Children’s views and Nature of the Children’s relationships
At the time of final hearing X was about 7 ½ years old, although at the time of the interviews for the Family Report he was 6 ½ years old.
The mother has been the children’s primary care giver since birth. Both children have a strong and loving bond with the mother, who has been meeting their daily needs since separation.
X was reported by the mother to be fearful of his father, that he will bring his father up during conversations only occasionally but not very often, and that this is not something which the child normally does.
In respect of the younger child, the mother has been instrumental in her care. Y has very high needs and must be monitored closely.
The theme of the Amhurst and Shearer families being against each other permeated many of X’s disclosures to Dr L. He spoke about his father being “naughty to mummy” and because he was drawing while being interviewed, it was noted by Dr L that X’s drawing strokes became quite aggressive when he spoke about his father.
In observations with his father X appeared somewhat overwhelmed by the father’s repeated displays of physical affection. The father was observed to engage in conversation with the child about a range of topics and they were observed to be drawing pictures together.
At the conclusion of the observation session the child said to Dr L that he had been glad to see his father and was now a little less scared of him. He also added that now that he had seen his father he had changed his opinions and loved him a little bit. He complied with his father’s request while they were drawing together during the observations because he did not want to hurt his father’s feelings.
As noted earlier in these Reasons, Dr L opined that X is highly attuned to the possibility of conflict erupting between his parents and that he is a hypervigilant child who perceives his mother to be the victim and his father to be the perpetrator. The child already believed that he must be either on one side or the other and that it is impossible for him to have a presence of both families contemporaneously in his life.
Given the young age of the child, and the significant conflict between the parents which appears to have influenced the child, his views will be given little weight.
Y was not interviewed nor observed with her father. Due to her medical issues she is non-verbal and has only very limited ability to express herself. In any event, Y is still very young and her views, even if they were known would be given very little weight.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child
The father has not availed himself of the available opportunity pursuant to the orders made by consent in December 2013 to spend time with the children.
Since time pursuant to the consent orders of December 2013 was stopped by the mother because of what she perceived was a lack of appropriate supervision and thereafter by the Independent Children’s Lawyer because of the father’s positive drug tests, the father had not made any further applications to the Court for time to resume or to occur in some other fashion.
The long-term decisions in relation to the children, post separation, have been made by the mother. The mother is not willing to co-parent with the father nor does she trust him in relation to the making of any long-term decisions for the children.
Parents’ obligations towards maintaining the child
The father pays child support as assessed by the Child Support Agency. He is on a disability pension, there is an automatic deduction of $14 from his pension to meet the father’s obligations for child support. The father however spends $20-$30 per week on marijuana. He funds his drug habit from the money that he earns from (hobby omitted). If the (hobby omitted) well, the father can win hundreds of dollars at a time. In a good week the father can earn a couple of hundred dollars from (hobby omitted).
After the parties separation the father has never provided to the mother any funds in addition to his assessed child support payments. The father has not complied with the costs order made by this Court on 21 March 2016.
Apart from being minimal amount which she received from the father via the Child Support Agency, the mother meets all of the costs associated with the children.
Likely effect of any changes in the child’s circumstances; Practical difficulty and expense of a child spending time with a parent and Capacity to provide for needs of the children
Since separation, the children have been living with the mother, and the time they have spent with the father has been very limited.
The father’s proposal is for the children to commence spending alternate weekends with him from the delivery of Judgment in this matter.
An order for the children to spend any time with the father would be a significant change in the children’s circumstances.
As noted earlier, X has not spent any time with his father for just over two years. His relationship with his father is very tenuous and without the support of the mother to develop and nurture that relationship, he will simply not be able to do so. The mother does not support such a relationship, in fact she is very much against it. This places X in a very difficult position. The short term risk of harm to X if he was to spend time with his father is very high and real, and the Court accepts that it is an unacceptable risk of harm.
Time between Y and her father, if it was to occur immediately, would carry a very high and probable risk of harm to the child, which the Court accepts is an unacceptable risk of harm.
Y’s disabilities are as follows:
a)She has brain damage which affects co-ordination and development;
b)She was born totally blind;
c)She is diabetic;
d)She may be wheelchair bound for life;
e)She has a heart murmur, a hole in the heart and another heart disorder that is being investigated; and
f)She has growth development difficulties.
Such evidence was expanded upon during cross-examination.
The father has extremely limited knowledge of Y’s medical needs, and he has not taken any steps to educate himself in how he might be best able to meet her needs. There is certainly no evidence before the Court as to his capacity to understand those high needs or to provide any kind of adequate care for the child.
Maturity, sex, lifestyle and background of children and parents
During the parties’ relationship, the father was a member of the (omitted) Motorcycle Club. On the one hand the father is critical of the activities of the Club and the “bikie” lifestyle, while on the other he says that the reason that he joined the club was because it felt good to be part of a brotherhood and that the false sense of mateship and brotherhood fostered by the Club was very attractive to him. The father impliedly conceded in cross-examination that as a member of the Club he was involved in a violent organisation.
The father says ultimately that the reason that he joined the Club was because he had to look after his younger brother, who was the President of the (omitted) Chapter of the Club at the time. When asked how he was going to protect his brother the father said that he didn’t want the brother to go down the wrong path and that he was just going to talk to him. I do not accept the father’s evidence in respect of this issue: I do not accept that the father joined the (omitted) Motorcycle Club to protect his younger brother or that in seeking to protect his brother from going down the wrong path, the father was just going to talk to him.
The father is a user of illicit substances. Despite these proceedings being on foot for over 3 ½ years, the father has not demonstrated to the Court any willingness or ability to beat his drug addiction.
Between December 2013 and the final hearing in August 2016, and pursuant to orders made, the Independent Children’s Lawyer had requested a number of urine tests of the father. An agreed schedule was handed up at hearing, which disclosed as follows:
Date of Request
Date Collected
Result
Action
13/12/2013
No results provided
26/03/2014
27/03/2014
Not chain of custody; Test positive for cannabis
08/04/2014
Test positive for cannabis
03/07/2014
No test result provided
02/09/2014
15/09/2014
Cannabis
Time suspended; letter sent (2/9/14)
16/09/2014
22/09/2014
Test positive for cannabis
Suspension continued; No certificates received; Letter sent (16/9/14)
06/11/22015
10/11/2015
Test positive for cannabis
23/03/2016
21/03/2016
Test positive for cannabis, opiates- codeine/morphine
27/04/2016
29/04/2016
Test positive for cannabis
26/05/2016
No results received
27/06/2016
No results received
26/07/2016
No results received
The father has re-partnered and lives with his current partner on the (omitted). She was not a witness in the proceedings.
The mother re-partnered about a year, to a year and a half ago. The mother’s partner was neither interviewed by Dr L nor is he a witness in the proceedings. The mother’s partner is a member of the (omitted) Motorcycle Club.
Neither of the parent is an Aboriginal or a Torres Strait Islander.
Attitudes to the children and responsibilities of parenthood
The mother is not supportive of any relationship between the children and the father. She stopped time from occurring between X and the father in July 2014, after the child returned with ‘graffiti’ on him.[14]
[14] The child came back from spending supervised time with the father with pictures of penises on his torso, which were drawn in texta. The maternal grandmother said that the child had been playing with his cousin and that they had drawn on each other.
The mother was of the view that there was no need for Y to see the father if X wasn’t seeing him.
During the observations between the child and the father at the interviews for the Family Report, the observation was interrupted by the security staff who advised Dr L that the mother had become quite anxious and was afraid that the father would abscond with the child if they spent time together.
The father through his inactions as noted in paragraph 47 of these Reasons, has not demonstrated an appropriate attitude to the children or to his responsibilities of parenthood.
Allegations of Family Violence
The Court has already noted the allegations and denials of family violence. The Court does not make any findings of fact in relation to these matters. However, even without making any findings of fact in relation to the allegations, the wider issue of determining if there is a risk of harm to the children occurring and assessing the magnitude of that risk remains.[15]
[15] M & M (1988) 166 CLR 69 at [24]
The father was and remains a user of illicit substances. The mother’s evidence about the violence allegedly perpetrated by the father including its correlation with the father’s drug use, and the evidence contained in Exhibit 8 together with the father’s answers to questions put to him in cross-examination about these matters, lead to a conclusion that there is an unacceptable risk of harm to the children if any time between them and the father was not to be supervised.
There are no family violence orders in place, although previously there were orders made, in particular on 11 July 2013 for a period of 12 months.
The restraints sought by the mother and the Independent Children’s Lawyer are appropriate.
Likelihood of further proceedings
The orders which are going to be made take into consideration the extreme vulnerability of the children, particularly the younger child, and the need for their living arrangements to provide them with stability and security.
Other relevant matters
In coming to the orders which the Court ultimately makes in these proceedings the Court has also taken into account the parties evidence in relation to the children’s names and in particular the father’s concession that it would be appropriate for X to have a hyphenated name.
The Court is not persuaded by any of the evidence or any of the submissions made in the father’s case that it is in the children’s best interest for Y’s name to be changed to Amhurst.
Primary Considerations: s60CC(2)
The Court is faced with the task of balancing the competing primary considerations set out in s 60CC(2) of the Act.
In applying the primary considerations, the Court must give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit of the children having a meaningful relationship with both of their parents.
The test to be applied in striking that balance is whether the parenting orders that are ultimately made will expose the children to an unacceptable risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[16]
[16] Janssen & Janssen (No.2) [2016] FamCA 796
It has been held that a meaningful relationship is one which is important, significant and valuable to the child[17]. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
[17] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC at [121]
As mentioned earlier in these reasons, in determining whether an unacceptable harm of risk exists, it may not be possible to make specific findings of fact in respect of past conduct.
Relevantly, in Nikolakis & Nikolakis[18] the Full Court said:
95. Past abuse, and whether it can be established, is by no means the only evidence of risk…but facts that might provide helpful guidance about potential harm and future risks might not carry much probative weight in determining whether abuse actually occurred... The question of whether there is an unacceptable risk has to be considered, as the High Court said in M & M, having regard to all the circumstances and the child’s best interests. It is possible, despite positive findings of misconduct in the past, to find no unacceptable risk in the future. That may be because, for example, the children are older, have learned protective behaviours and that the Court can be satisfied that they are old enough to report any untoward behaviour to the other parent. In addition, people and circumstances change.
96. On the other hand, failure to establish an allegation in the past does not determine the wider issue of what parenting order, if any, is in the child’s best interests and thus the unacceptable risk inquiry involves a real and substantial consideration of whether or not particular facts raise an unacceptable risk ... In addition, there are many matters which the trial judge must consider. They include the situation where the allegations themselves are serious but the probative value of the evidence is slight (as was the case here). On the other hand, the evidence of something occurring may be strong but the nature of what occurred is less clear. All these matters have to be considered with all the other matters under section 60CC in each case in which the Court is to make a parenting order. (citations omitted)
[18] [2010] FamCAFC 52 at [96]-[96]
The relevant facts of this case are such that the need to protect the children from harm is a matter which is at the forefront of the Court’s deliberations.
Having carefully considered the facts as set out earlier in these Reasons[19] the Court finds that the children, if they were to spend significant and substantial time with the father, would be placed at an unacceptable risk of harm. Indeed any order for time between the father and the children places the children at risk of harm.
[19] See in particular paragraph 6, 17, 41, 45, 53, 56, 57, 61, 63-65, 79, 82, 94, 96-98, 101-102, 111
The children have spent very limited time with the father in their young lives. There is no evidence of a meaningful relationship between the children and their father, despite the older child having spent time with the father in the past.
As summarised in Hollister v Gosselin[20]
119. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew [1996] FamCA 43; (1996) FLC 92-692.
120. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests. Thus in Russell v Close (Unreported, Family Court of Australia, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
[20] [2016] FamCA 759
In all of the circumstances the Court finds that the possible benefit to the children of spending limited time with the father, even on a long-term supervised basis[21], is outweighed by the risk of harm to which they would be exposed if they were to spend time with the father. The Court also takes into consideration, in coming to this conclusion, the mother’s attitude to the father and her incapacity to foster any positive relationship between the children and the father.[22]
[21] Which is not an order supported by any of the evidence
[22] See in particular paragraphs 30, 31, 43, 85-87, 106-108 of these Reasons
As such, an order for no time between the children and the father is made.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out in the forefront of these reasons.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 11 October 2016
0
10
2