Simcock and Leila
[2017] FamCA 64
•10 February 2017
FAMILY COURT OF AUSTRALIA
| SIMCOCK & LEILA | [2017] FamCA 64 |
| FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Parental responsibility – Best interests of the children – Where the father has disengaged from proceedings - Where the father has perpetrated family violence against the mother and the children - The children live with the mother – The mother have sole parental responsibility – The father is restrained from communicating with the children – The father is restrained from approaching the mother – No contact with the father. |
FAMILY LAW – PRACTICE AND PROCEDURE - Non-appearance of a party – Undefended final hearing.
| Evidence Act 1995 (Cth) s 140(2)(c) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN |
| G & C [2006] FamCA 994 |
| APPLICANT: | Ms Simcock |
| RESPONDENT: | Mr Leila |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Neilson |
| FILE NUMBER: | PAC | 5680 | of | 2014 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 12 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wimalaratne |
| SOLICITOR FOR THE APPLICANT: | SVW Legal |
| THE RESPONDENT – SELF REPRESENTED LITIGANT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
All previous Orders in respect of B born … 2003 and C born … 2005 (“the children”) are discharged.
That the mother shall have sole parental responsibility for the children.
That the children live with the mother.
Pursuant to section 68B of the Family Law Act 1975 (Cth), that father is restrained from:
(a)Communicating with or approaching, or attempting to communicate with or approach, the mother or either of the children;
(b)Attending, or attempting to attend, the place of residence or the place of work of the mother; and
(c)Attending, or attempting to attend, any school or before or after school care centre or any other service attended by either of the children.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simcock & Leila has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5680 of 2014
| Ms Simcock |
Applicant
And
| Mr Leila |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements in respect of 13 year old B and 11 year old C, the children of Ms Simcock (“the mother”) and Mr Leila (“the father”).
The parents separated in 2012 after a 13 year relationship.
The mother seeks sole parental responsibility for the children, that the children live with her and that the father be restrained from communicating with or approaching her or the children. It is her case that there is no benefit to the children in having any relationship with their father.
The father had sought equal shared parental responsibility for the children and that they live with the mother and spend time with him on alternate weekends, and for half the school holidays. However, the father disengaged from the proceedings some time ago and the final hearing was heard in his absence.
The Independent Children’s Lawyer (ICL) supports the orders sought by the mother.
The father’s non-attendance
An Initiating Application was filed in this Court by the mother in November 2014.
Due to allegations of serious abuse said to have been perpetrated by the father the matter was allocated to the Magellan protocol.
A Response was filed in May 2015 by the father, but at that stage he was in custody awaiting sentencing and the matter did not progress for some time.
On 11 August 2015 the Court ordered that the mother have sole parental responsibility for the children on an interim basis and that the children live with the mother. A Family Report was also ordered. The father’s solicitors ceased acting for him in January 2016.
The father failed to appear at court proceedings in February 2016 and his whereabouts were unknown.
On 12 April 2016 the father appeared at Court in person and the matter was adjourned pending the release of the Family Report.
The Family Report was released on 11 July 2016 and the proceedings were relisted for 17 August 2016.
On 17 August 2016 the proceedings were listed for hearing on 12 October 2016. The Court noted that the matter was anticipated to be heard on an undefended basis as the father appeared to have disengaged and had not participated in the preparation of the Family Report.
The father has been informed of the various dates for the Family Report and the hearings and has not attended.
On 12 October 2016 the father failed to appear and was not represented. The participating parties sought that the Court proceed to deal with the matter to finality in the absence of the father.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view, it was in the best interests of the children for the proceedings to be finalised and dealt with in the absence of the father.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
Accordingly, the father’s material will not be read in the proceedings.
Background
The mother, who is currently 34, and father, who is currently 47, met and began a relationship in 1999. The parents did not live together during the relationship. Their first child, B, was born in 2003. Their second child, C, was born in 2005.
The mother lived with her parents, the maternal grandparents of the children, and was the primary carer of the children. The father saw the children at the maternal grandparents’ home on an ad hoc basis.
The father has a lengthy history of violence and abuse. In her affidavit the mother details a number of incidents in which the father was violent towards her throughout their relationship.
She sets out an incident in 2000 in which the father took her to a motel and sexually assaulted her.
The mother also details incidents of violence that occurred while she was pregnant with each child. In 2002 when she was three months pregnant with their first child B, the mother asserts the father punched her in the stomach. In 2004 when she was five months pregnant with C the mother asserts the father threw a stone at her which caused her to fall and break her ankle in three places.
In 2005 the mother also alleges that she was sexually assaulted by the father’s nephew while she was at the father’s house.
The mother and father separated in 2012.
Following separation the mother made the children available to the father upon the father’s request.
On 2 November 2013 the father entered the mother’s home when she and her then partner were present. The father hit the mother’s partner before hitting the mother in the face and placing his hands around the mother’s neck. The father said “I’m going to kill you and no one is going to replace me as a father to the kids”. The father left the scene and was stopped by police a short time later for a breath test. The father was placed under arrest after failing the breath test and was taken to the local police station where Police became aware the father was responsible for the incident at the mother’s home.
There has been no contact between the mother and the father or the father and the children since this incident.
In 2014 the father was convicted of breaking and entering (the mother’s home), destruction of property and assault occasioning actual bodily harm in relation to the incident on 2 November 2013. The father received a 12 month suspended sentence and the Court ordered an ADVO restraining the father from contacting or approaching the mother and/or the children, for a period of two years.
According to Court records on 2 and 3 May 2015 the father sent the mother a series of approximately 100 text messages relating to the father wanting to resume a relationship with the mother. The mother sent a number of messages to the father requesting he stop contacting her. On 9 May 2015 the father was arrested and charged in relation to this incident and on 2 December 2015 the father was convicted of breaching the ADVO protecting the mother and children. He was sentenced to a 4 month Intensive Correction Order.
Objective evidence such as the father’s criminal history corroborates the mother’s allegations concerning the father’s violence. I am satisfied to the requisite standard[3] that the father has perpetrated significant violence against the mother on a number of occasions.
[3] In M v M (1988) 166 CLR 69; [1988] HCA 68 at [18] the High Court held that the Court must be satisfied according to the civil standard of proof to make a positive finding of sexual abuse. In Johnson & Page [2007] FamCA 1235 at [72] the Full Court agreed that reference to the Evidence Act 1995 (Cth) is the appropriate standard, having particular regard to s 140(2)(c). This standard of proof was extended to cases of physical abuse by the Full Court in Oscar & Austen [2014] FamCAFC 32.
Child Abuse
The mother also alleges that the father has been abusive towards the children.
The mother asserts that the father often put the children on the lounge and refused to let them up until they agreed to what the father had said. The mother further asserts that there were occasions when the children visited the father and the children upon their return claimed that the father had locked C downstairs for hours.
The mother asserts that she tried to speak to the father’s parents, the paternal grandparents, about these issues but the paternal grandmother said that there was nothing the mother could do as it was “the man’s way in their culture” to behave this way.
The mother asserts that the father commented on the amount of food the children ate. She details a specific instance when the father said to B “only eat 60% of what you are eating because you will get fat”. The mother asserts that the children became very careful of what they ate in front of the father and weighed themselves frequently following this incident. B now has an eating disorder.
The mother alleges a number of specific incidents of child abuse between 2006 and 2012. These incidents include the father holding C under a hot steam kettle in 2006 which the mother reported to police, the father giving C a sip of beer in 2007, pushing C against a wall in 2010 and kicking C in the stomach in 2011 or 2012.
On B’s birthday in 2011, the mother asserts the father was intoxicated and dropped B on her face in the park. Later that day the mother took B to D Hospital and B was treated for a nasal fracture.
Although it appears that the father disputes that he has subjected the children to abuse or exposed them to family violence I am satisfied he has done so. The mother sets out an extensive history of family violence perpetrated against her to which the children have been exposed and physical and psychological abuse perpetrated against the children. This evidence is uncontradicted by the father and is corroborated by the father’s criminal history, court records and reports made by the children to the Family Consultant.
The Family Consultant, in the Family Report dated 29 June 2016, relevantly reported the following:
29. [C] said that he did not recall when the last time was that he saw Mr Leila] and he tried not to think about [Mr Leila]. He said that he remembered feeling scared of [Mr Leila] and remembered him hitting [Ms Simcock]. [C] said that he saw [Ms Simcock] with “bruises and blood” and he saw police at his house. He said that [Ms Simcock] told them that [Mr Leila] had caused her injuries.
30. He said that [Mr Leila] also hit him and [B] and that [Mr Leila] kicked him in the back. [C] added that [Mr Leila] had locked him in the garage for “an hour” because he wanted to watch something on television and that he had put his head underwater in a pool for “twenty seconds”.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
The authorities have not interpreted this consideration as creating a presumption that a child does receive a benefit from having a relationship with both parents.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said 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 a child (sic).
and at [122] the Court said:
No doubt in the majority of cases there will be a positive benefit to a child of 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 this case the orders proposed by the mother provide for the father to spend no time with or communicate with the children and restrain the father from coming into contact with them. If I were to make orders in accordance with this proposal I must be satisfied that there is no benefit to the children in having a meaningful relationship with their father. Although the children not having a relationship with their father may have a negative effect on the children’s identity formation, ability to form and maintain relationships and self-esteem, greater weight must be attached to the need to protect the children from harm.
For the reasons given when considering the other primary consideration I am satisfied that the need to protect the children from harm outweighs this consideration to such an extent that in my view the children will receive no benefit from the Court attempting to craft orders to foster their relationship with their father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This consideration looms large in this case. For the reasons given I am satisfied that the father has perpetrated violence against the mother to which the children were exposed and has abused the children.
The Family Consultant considered the harm to the children of exposure to family violence and abuse and opined:
Serious allegations of child abuse have been raised in this matter. According to [Ms Simcock], the children have witnessed violence and been subjected to physical, emotional and sexual abuse. If these allegations are accurate, it is likely that the children have experienced significant trauma and harm. It is also likely that these reported experiences have negatively affected their view of [Mr Leila] and any relationship with him.
On the basis of past abusive and violent conduct perpetrated by the father against both the mother and the children it is my view that there is an unacceptable risk of harm to the children in the care of the father. There is no proposal before me to mitigate that risk of harm such as that any time with the father be supervised.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
B expressed the view to the Family Consultant that she is now too busy with school and extra-curricular activities to spend time with her father and does not wish to spend any time with him. She stated that she does not feel that she has lost a relationship with her father because “we hardly see him anyway” and that he does not call her or her brother on the telephone.
In the interview with the Family Consultant, C stated that his father had hit him and his sister, kicked him in the back, locked him in the garage, put his head underwater in a pool and had touched him in “rude places”. C expressed the view to the Family Consultant that he did not want to see his father.
B is nearly 14 years old and C in nearly 12 years old. Given the ages of the children and their exposure to abusive behaviour on the part of the father, I attach significant weight to their views.
Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)
It is clear from the views expressed by both the children in relation to their father that they have a very limited relationship with him and that it is characterised and coloured by the father’s perpetration of abuse against the mother and the children.
Each of the children appears to have a strong relationship with the mother who has been their primary carer throughout their lives. The Family Consultant reported that both children were relaxed and comfortable with their mother. The Family Consultant noted that C in particular was more animated when playing with his sister and mother.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
The mother is the primary caregiver and makes decisions for the children. The children live with the mother.
The mother asserts that prior to and after separation the father saw the children when he felt like it and did not spend time with the children on a regular or consistent basis.
The father failed to participate in the family report assessment and in the proceedings. It can be inferred that he has abandoned an interest in participating in long term decision making regarding the children or spending time with the children.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The mother is the primary carer for the children. There is no suggestion that the mother is unable to maintain the children.
There is limited evidence regarding the father’s maintenance of the children. The father has never lived with the children and there is no evidence that the father has ever been involved in the day to day care of the children or that he provides any financial support for them.
Likely effect of change in the children’s circumstances
The mother has had sole parental responsibility for the children under interim orders made in this Court since 11 August 2015. The father has had no contact with the children since November 2013. The orders sought by the mother do not seek to change these current circumstances.
The orders proposed by the father, particularly that the children spend significant time with him including overnight time, would be a dramatic change in the children’s circumstances if implemented. The children would likely experience significant distress as a result of such orders.
Practical difficulty and expense involved in spending time with and communicating with the other parent
There is no practical difficulty or expense associated with the orders sought by the mother.
There could be significant practical difficulty associated with the cooperation required between the parents to effect the father’s proposed orders.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
Limited information is available regarding the father’s capacity to provide for the children’s needs as he did not participate in the family report assessment and cannot be contacted. However there is no indication that the father has ever had full time care of the children for any lengthy period of time and the father’s abusive conduct towards the children and family violence perpetrated against the mother to which the children were exposed indicate a poor capacity to provide for the children’s needs..
The Family Consultant raised a concern in the Family Report that the mother had not sought ongoing treatment of the children’s mental health issues, particularly B’s eating disorder and C’s Post Traumatic Stress Disorder (“PTSD”). The Family Consultant says that the mother discontinuing seeking professional assistance for the children when she did not agree with the advice given by the therapist could be considered neglectful of her in meeting the children’s needs. Otherwise the mother has shown herself to be a capable parent.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The mental health of both children has been negatively affected by their exposure to child abuse and family violence. B has been diagnosed with an eating disorder and C has been diagnosed with PTSD. Neither child is currently receiving ongoing treatment for these issues which is of concern.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The father has shown a very poor and inconsistent attitude toward the children and his responsibilities as a parent. By the mother’s account, the father has only every seen the children when he felt like it and has not seen or communicated with the children since November 2013. The father has effectively abandoned his role as a parent and has left the mother to raise the children alone. This abandonment of parental responsibility is furthered by the father’s violent and abusive conduct towards the mother and the children, placing the children at significant risk of harm in his care, and is completed by his failure to participate in these proceedings.
Family violence relating to the children or a member of the children’s family
This issue is discussed earlier in these reasons.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In circumstances where the father has disengaged from the proceedings it is difficult to assess whether there is a likelihood of further proceedings in the future. It is desirable to provide certainty and finality to the children’s parenting arrangements. Given the mother seeks that she have sole parental responsibility, and therefore may allow the father to spend time with the children in the future under conditions that will ensure their safety and wellbeing, little weight is attached to this consideration.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section 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 or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Given the father has perpetrated family violence the presumption of equal shared parental responsibility does not apply.
The mother is seeking sole parental responsibility for the children. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
Given the father has disengaged from proceedings, the only proposal before the court is for the mother to have the care of the children and for them to live with her. The ICL supports the orders sought by the mother that she have sole parental responsibility. In circumstances where the mother has effectively held parental responsibility for many years, both before and since separation and the father has engaged in family violence, I am easily satisfied that it would be in the children’s best interest for the mother to have sole parental responsibility for them.
Conclusion
Having regard to all of the factors in relation to the best interests of the child I make orders as sought by the mother and supported by the ICL for the children to live with the mother and the restraints as sought by the mother be ordered. The only amendments I make to the orders sought by her is to delete the restraint on the father being within one kilometre of the mother’s workplace or residence and the children’s schools. Such restraints are in my view practically unworkable and unnecessary given the restraints to protect the mother and the children.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 February 2017.
Legal Associate:
Date: 10 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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