Simpson and Benson

[2016] FamCA 232

FAMILY COURT OF AUSTRALIA

SIMPSON & BENSON [2016] FamCA 232

FAMILY LAW – CHILDREN – Undefended hearing – application by the mother that the child live with her and that she have sole parental responsibility – where the father has failed to comply with orders for the filing of material and to appear at court events – where the child has made disclosures of sexual abuse by the father – where the father has failed to comply with orders for him to undergo drug screenings – finding of unacceptable risk to the child – final orders made that the child live with the mother, that the mother have sole parental responsibility and that the child spend supervised time with the father by agreement

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Ms Simpson

RESPONDENT: Mr Benson

INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

FILE NUMBER: MLC 3065 of 2015

DATE DELIVERED: 13 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 17 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sweet

SOLICITOR FOR THE APPLICANT: Nevett Wilkinson Frawley

THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stanley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

Orders

IT IS ORDERED THAT

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the child B born … 2010 (“the child”).

3. The child live with the mother.

4. The father spend time and communicate with the child to be supervised by an agreed supervisor in writing and at such times as agreed between the mother and the father in writing.

5. The mother keep the father informed as to her current address.

6. The mother notify the father as soon as reasonably practicable of any significant injury or illness suffered by the child including but not limited to medical treatment and/or hospitalisation.

7. The order for the appointment of the Independent Children’s Lawyer be discharged.

8. The mother’s Initiating Application filed 11 January 2016 and the father’s Response filed 22 May 2015 be dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel.

IT IS DIRECTED THAT

1. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Benson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3065 of 2015

Ms Simpson

Applicant

And

Mr Benson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings are in relation to B who was born in 2010 (“the child”) and is now five years of age. The child, who is of aboriginal descent, has two half siblings C who was born in 2012 and is 2 years of age and D born in 2015 who is not yet one.

2. The proceedings were commenced by the mother Ms Simpson filing an application in the Magistrates’ Court of Victoria at Ballarat on 26 March 2015 seeking a recovery order for the return of the child. It was the mother’s case that in late November/early December 2014 when the lease ran out on her home she asked the child’s paternal grandmother, with whom she maintained a relationship, if she would look after the child until she obtained suitable accommodation. The mother’s evidence was that she filed her application seeking a recovery order after the paternal grandmother refused to return the child to her care. The matter was transferred to the Federal Circuit Court sitting at Ballarat on 9 April 2015 and a recovery order was made for the return of the child to the mother’s care.

3. The father was born in 1987 and is 28 years of age. The mother was born in 1991 and is 24 years of age. The father, Mr Benson and the mother never lived together. Save for that one period in late 2014 early 2015 Isabelle has always been in the mother’s care.

History of Proceedings

1. After the child’s return to the mother the matter was listed for hearing in the Federal Circuit Court sitting at Ballarat on 27 May 2015 and orders were made by Judge Curtain for the preparation of a report pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) and the matter was otherwise adjourned for further hearing at Ballarat on 27 July 2015. In anticipation of that hearing the father had filed a Response seeking both interim and final orders, an Affidavit sworn by him on 21 May 2015, an Affidavit sworn by the paternal grandmother on 21 May 2015 and a Notice of Risk of Abuse filed 22 May 2015. Both the father and the mother were represented at the hearing on 26 May 2015.

2. On 27 July 2015 Judge Riethmuller made orders for the appointment of an Independent Children’s Lawyer and transferred the matter to this Court noting that the matter involved sexual abuse allegations which were being investigated by Victoria Police.  

3. On 31 August 2015 Registrar Field made orders in chambers adjourning the matter for hearing before Senior Registrar FitzGibbon and the Magellan Registrar on 30 September 2015 and the usual orders requesting the Department of Health and Human Services (“the Department”) to provide a Magellan Report.  

4. On 30 September 2015 Senior Registrar FitzGibbon made various orders including orders by consent suspending the father’s time with the child and requiring the father to undertake a supervised urine drug screen within 24 hours of a written request from the Independent Children’s Lawyer and provide copies of the results to all the parties as soon as practicable thereafter. The applications for final orders were otherwise adjourned for hearing before Senior Registrar FitzGibbon and the Magellan Registrar on 16 December 2015. Both the father and the mother were represented by counsel at the hearing on 30 September 2015. 

5. On 16 December 2015 Senior Registrar FitzGibbon made orders dismissing all the interim applications, that the mother file and serve an amended initiating application by 4.00 pm on 11 January 2016, that the father, subject to service upon him of a sealed copy of the order made that day, file and serve an amended response to initiating application setting out with precision the orders sought at final hearing, that the matter be listed for mention before me at 9.00 am on 8 February 2016 and final hearing before me at 10.00 am on 8 March 2016 and requested that the Department prepare an Addendum to the Magellan Report in relation to any new notifications since 25 September 2015.

6. The mother was represented by counsel at the hearing on 16 December 2015. As there was no appearance by or on behalf of the father, the Senior Registrar ordered that the mother serve the father with a sealed copy of his orders by prepaid post addressed to him at his last known residential address at E Street, F Town, Victoria … (being the home of the paternal grandmother) and by email to ... Although the mother had not filed an affidavit of service she produced a copy of an email enclosing a copy of the orders made by the Senior Registrar on 16 December 2015 which was sent to the father at the email address referred to in the orders at 11.44 pm on 3 February 2016.

7. I am satisfied that the father was served with a copy of the orders made 16 December 2015 and although the mother filed an Amended Initiating Application on 11 January 2016 as ordered, the father did not file an Amended Response to Initiating Application. I am satisfied that the mother caused a sealed copy of her Amended Initiating Application to be served upon the father by prepaid post addressed to his last known residential address by letter dated 11 January 2016. When the matter was listed for mention before me on 8 February 2016 the father did not appear and was not represented. On that date I extended the time for him to file and serve his amended response and any affidavit upon which he sought to rely upon to 4.00 pm on 24 February 2016. I also vacated the hearing on 8 March 2016 and listed the matter for final hearing before me on 17 March 2016. The mother was ordered to serve a sealed copy of my order upon the father by prepaid post addressed to him at his last known residential address and by email.

8. I am satisfied that the mother caused a sealed copy of the order made 8 February 2016 upon the father by prepaid post addressed to the father at his last known residential address and by email on 9 February 2016. I am also satisfied that her affidavit filed 10 March 2016 was served upon the father at his last know residential address by letter dated 10 March 2016.

9. The father did not appear and was not represented at the final hearing on 17 March 2016 and the mother, with the support of the Independent Children’s Lawyer, sought leave to proceed on an undefended basis.

10. Rule 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

    (1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

    Note:             A defaulter may apply to the court for relief from this rule    (see rule 11.03).

    (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

    (a)  dismiss all or part of the case;

    (b)  set aside a step taken or an order made;

    (c)  determine the case as if it were undefended;

    (d)  make any of the orders mentioned in rule 11.01;

    (e)  order costs;

    (f)  prohibit the party from taking a further step in the case until the occurrence of a specified event; or

    (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

    Note:         This list does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss.

11. The Explanatory Guide to the Rules describes “undefended basis” as follows:

    [T]he court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make the orders set out in the application on being satisfied by evidence that the orders should be made. 

12. I am satisfied that the orders made on 16 December 2015 and 8 February 2016 were served upon the father as ordered however the father did not appear at either the mention of the matter on 8 February 2016 or the hearing on 17 March 2016 or file an amended response to the initiating application or any affidavit as ordered.

13. The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. In this case it is not just a question of weighing up the injustice to the father of proceeding on an undefended basis in his absence and any injustice caused to the mother by the father’s failure to comply or to participate in the proceedings; I must also weigh up the interests of the child. The mother is the child’s primary carer, she has two other young children and in my view she is entitled to have this matter heard and determined avoiding for the mother, and indirectly the child, the disruption and uncertainty of ongoing litigation.

14. Although the father filed a Response on 22 May 2015 following the transfer of the matter from the Magistrates’ Court to the Federal Circuit Court in April 2015, in circumstances where he has failed to comply with orders made by the Court and has not appeared I propose to proceed with the matter as if that Response and his Affidavit sworn 21 May 2015 and that of his mother sworn 21 May 2015 had not been filed.

Legal Principles

1. The fact that a matter is undefended does not alter the fact that the paramount consideration in making parenting orders is the child’s best interests. As the orders I am being asked to make are parenting orders I must apply the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child the subject of the proceedings or another child who was a member of that parent’s family at the time or family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility. If the presumption does not apply the court must make the orders with respect to parental responsibility it is satisfied are in the child’s best interests. If the court does make an order for equal shared parental responsibility the court must consider whether it is in the child’s best interest and reasonably practical for the child to spend equal and if not equal substantial time with each of its parents.

2. In determining the child’s best interests the court must consider both the primary and additional considerations in s 60CC of the Act. The relevance of those considerations and the weight to be given to them will depend upon the particular circumstances of each case save that in applying the primary considerations the court is to give greater weight to the need to protect the child from physical or psychological harm.

3. The standard of proof in this case is the balance of probabilities. In deciding whether it is so satisfied the court must consider the nature or the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged (s 140 Evidence Act 1995 (Cth)). The more serious the allegations the stronger the evidence will need to be to prove that allegation.

4. Although there is no question that allegations of sexual abuse are serious allegations, these proceedings being undefended, the mother’s evidence is unchallenged. I accept her evidence which is supported in any event by the evidence contained in the Magellan Reports tendered by the Independent Children’s Lawyer and marked Exhibit ICL1 in these proceedings.  

Allegations of Abuse

1. The allegations of sexual abuse of the child were first raised by the father and arose out of alleged disclosures by the child during the time she was living with the paternal grandmother.  The mother deposes that in December 2014 she was advised by the paternal grandmother that the child had told her that someone had put a finger in her bottom. The mother said that she immediately informed the Department. According to the Magellan Report completed on or around 29 September 2015 (“the Magellan Report”) the Department had received a notification in relation to the child in November 2014. It was reported as follows:

   [The father] advised that [the child] informed the paternal grandmother [Ms G] that something had poked her in the bum. He was angry and stated that he had no intention of having the child returned to [the mother]’s care as she was not able to provide appropriate care and that she had failed to protect the child from harm...

2. The paternal grandmother when spoken to by the writer informed the writer that she had seen no changes in the child since she had made the comment (no soiling and no wetting). The paternal grandmother stated that she felt it was “just a comment” that was made by the child as she was upset due to being separated from her mother and just wanted to get back to her. Further, the child presented as a happy girl who was attending day care three days per week. The paternal grandmother acknowledged that the child was missing her mother and brother and reunification with her mother was in the child’s best interests.

3. It was also recorded in the Magellan Report that contact had been made with Senior Sergeant H I Town, Sexual Offences and Child Abuse Investigation Team (“SOCIT”) who had advised the Department that given the limited information no further action would be taken. The report was closed on 6 March 2015 leaving the mother to pursue the child’s return through the family law proceedings.

4. A further report was made to the Department on 1 June 2015 concerning further disclosures by the child that she had been touched inappropriately by a friend of the mother’s partner Mr J and concerns raised by the paternal grandmother that the child, whilst in her care, had wet the bed, soiled her pants and become afraid of the dark. By this time the child had been returned to the mother’s care but was spending time with the father at the paternal grandmother’s home on alternate weekends. The maternal grandmother reported that the child had stated that Mr J’s friend’s name was “Mr K”. 

5. According to the Magellan Report, both Child Protection and a Victorian Aboriginal Child Care Agency worker Ms L had visited the mother on 18 June 2015 and the mother had advised them that although she was aware of the alleged disclosures she had not heard the child make any such disclosure and her knowledge was based upon what she had been told by the paternal grandmother. The mother informed the workers that the child had been interviewed by SOCIT on 9 June 2015 but had not made any disclosure and that she had been informed that the case would be closed. The mother also said that she had not observed any sexualised behaviours and denied that the child soiled herself although said that she sometimes wet herself when she became distracted but that she done so from a young age.

6. B was interviewed by the Child Protection Service of the Department at the family home on 19 June 2015. During that interview the child disclosed that “[Mr Benson]” had asked if he could touch her “front bum” which she confirmed meant her vagina. When she was asked where this occurred she said ““[Mr Benson’s] house” and that when she had told the paternal grandmother she had told the father to stop doing it. The Department worker said that the mother had “stated that she was shocked and appeared this way by these disclosures and was happy for the child to be referred to [Centre Against Sexual Assault]  for a specialist assessment”.

7. A referral was made to Centre Against Sexual Assault (“CASA”) for assessment. That assessment commenced on 11 September 2015 and on 25 September 2015 CASA notified the Department that the child had disclosed that ““[Mr Benson] has touched her on the front bum” and that“ no one had touched her privates except her dad “[Mr Benson]”. the child had not provided any details of when this had occurred only saying that it was while she was “staying at nannas (sic) for a long time”.  

8. This further disclosure was reported to I Town SOCIT and the risk of sexual abuse was substantiated by the Department noting however that the child was not at risk of significant harm whilst she resides with the mother and is having no contact with the father.

9. By agreement with the Department the father has not spent any time with the child since mid-2015 and as previously referred to the orders which provided for him to spend time with the child were suspended on 30 September 2015.

10. The “unacceptable risk” test is the standard used by this Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M v M (1988) 166 CLR 69at page 78). In other words, where the Court makes a finding of unacceptable risk, that finding is based upon the Court having weighed up the benefits and the risks and ultimately concluding that the risk of harm to the child or children in allowing them to spend time with the parent accused of abusing them outweighs the possible benefit to them of that access.

1. However the fact that there are allegations of sexual abuse does not alter the fact that the Court’s paramount obligation is to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests (M v M (1988) 166 CLR 69).

2. I am satisfied that in this case it is neither possible but more importantly necessary to make a finding that the father has sexually abused the child. However I am satisfied on the balance of probabilities that there would be an unacceptable risk of abuse to the child if she were to spend time with the father. I am also satisfied that in circumstances where the child has reported that she told the paternal grandmother that the father had inappropriately touched her the risk of any time the father might spend with the child would not be ameliorated by that time being supervised by the paternal grandmother.

3. It was submitted on behalf of both the mother and the Independent Children’s Lawyer that the father’s drug use would also expose the child to a risk of abuse. The child spent overnight time with the father from 2011 until September 2012 until, she says,  she found out that he had used “ice” whilst the child was in his care. As a result she refused to allow the child to spend time with the father although she continued to take the child to F Town to spend time with the paternal grandmother. It was her evidence that when she made arrangements with the paternal grandmother for the child to live with her in late 2014 she had not known the father was living there.

4. On 30 September 2015 the Senior Registrar made an order requiring the father to undertake supervised urine drug screens within 24 hours of receiving a written request from the Independent Children’s Lawyer to do so. The Independent Children’s Lawyer made five written requests to the father through his solicitor on 6 October 2015, 21 October 2015, 11 November 2015, 30 November 2015 and 15 December 2015. I note that the father’s solicitor filed a Notice of Ceasing to Act on 9 December 2015. Counsel for the Independent Children’s Lawyer advised that he had not received any urine drug screen results from the father. In my view it is reasonable to infer on that basis that those test results would not have assisted the father’s case.

5. The mother also complained to the Department about the risk to the child as a result of the father’s anger issues. In her Affidavit filed 24 March 2015 she deposed that in December 2014 when she contacted the paternal grandmother to let her know that she had obtained accommodation and that the child could be returned to her, the father answered the phone and told her that he was living with the paternal grandmother and would not be returning the child. Shortly thereafter the mother travelled to F Town to collect the child but was met at the door of the paternal grandmother’s home by the father who told her the child would be living with him and pushed her away. The Magellan Report corroborates the mother’s concerns about the father’s anger issues reporting that the father presented as “highly verbally aggressive” to the writer of that report.

6. I am satisfied that the child has lived with her mother spending little or no time with the father since September 2012, when she was a little over two years old. The paternal grandmother is reported by the Department in the Magellan Report as having described the father as having been an absent father. The father has also made no financial contribution to the child’s support. The paternal grandmother reported that when the child was in her care she had been upset at being separated from her mother and brother and that it was in her best interests to be returned to the mother’s care. To the extent that the wishes of a five year old should carry any weight I am satisfied that the child’s wish would be to live with her mother and siblings.

7. There have been five notifications to the Department in relation to the child, although the Department reports that only the allegation of sexual abuse to which I have already referred has been substantiated. Whilst the other notifications suggest that the mother’s life has at times been somewhat tumultuous it is also clear from the Magellan Reports that the mother has attended regularly with all three of her children on the Maternal Child Health Nurse and that the Maternal Child Health Nurse had never seen any evidence of any drug or alcohol use in the mother’s home. I am also satisfied based upon the Magellan Reports that the mother has sought and obtained appropriate assistance and supports when they were required and has actively protected and promoted her child’s best interests. Her decision to place the child with the paternal grandmother when she did not consider that she could offer her safe accommodation, albeit it led to these proceedings, is an example of the mother doing what she considered to be in her child’s best interests. I am satisfied that it is the child’s best interests to continue living with the mother and will order accordingly

8. Both the father and the mother in this case are Aboriginal. According to the Magellan Reports the mother has had support from her mother and notwithstanding this dispute has maintained the child’s contact with the paternal grandmother, as recently as in the last couple of weeks having arranged for the child to spend time with the paternal grandmother. This will enable the child not only to maintain contact with her extended family but also the cultural traditions of her extended family. Although the paternal family lives in the F Town area and there may be some practical difficulties associated with maintaining regular contact I am satisfied that the mother has always maintained the child’s relationship with the paternal grandmother and will continue to do so mindful of the need to protect the child from any risk of abuse.

9. I am satisfied that in this case there are reasonable grounds to believe that the child has been abused by the father and in those circumstances the presumption of equal shared parental responsibility does not apply.

10. The father for whatever reason has chosen not to participate in these proceedings and they are now undefended. I am satisfied that the mother has demonstrated a responsible attitude to her role as a parent and that in circumstances where I have found that I am satisfied that spending time with the father would expose the child to an unacceptable risk of abuse I am satisfied that it is not only practical but also in the child’s best interests to accede to the mother’s application that she have sole parental responsibility. In circumstances where I am making an order for sole parental responsibility I am not required to consider whether the child should spend equal or if not equal time, substantial time with the father.

11. Although the Independent Children’s Lawyer proposed an order that requires the mother to keep the father informed as to any significant/important decisions affecting the child I am not satisfied that it is necessary in this case or that I should make such an order. I am satisfied that the mother has by default been exercising sole parental responsiby for this child her whole life. Notwithstanding that the father has not participated either in the child’s life let alone any decision making for the child, the mother has maintained contact with his family. I am satisfied that if I make an order for sole parental responsibility she will, as she has done without the benefit of any orders, act responsibly and in the best interests of the child including when she considers it appropriate to do so keeping the father informed about decisions in relation to the child’s welfare. 

12. The mother in her Amended Initiating Application sought an order that the father spend time and communicate with the child, to be supervised by an agreed supervisor in writing and at such times as agreed in writing. The Independent Children’s Lawyer proposed an order that the child spend time with the father at such times and with such conditions as agreed between the parties. Given my finding of the unacceptable risk posed to the child by the father, it is my view that the order should specify that supervision is required.

13. The Independent Children’s lawyer also proposed orders that:

    ·Neither party administer any form of physical discipline upon the child.

    ·Each party be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other.

    ·Each party keep the other informed as to:

    a.Their current address and mobile telephone contact details;

    b.Immediately, in the event that the child suffers any significant illness or injury, including but not limited to medical treatment and/or hospitalisation.

    ·The father be at liberty to obtain from the child’s school all usual photographs, newsletters and other notices provided to the parents by the school, with the father to be responsible for any costs in relation to same.

14. Although I propose to make an order requiring the mother to keep the father informed of her address and notify him in the event of the child suffering any significant illness or injury I do not propose to make the other orders sought by the Independent Children’s Lawyer. There are no allegations suggesting that the child has been inappropriately physically disciplined by the mother and pursuant to my orders she will not be spending time with the father. There are also no allegations made against the mother with respect to any abuse or denigrating behaviour towards the father. Whilst the mother makes some complaints about the father’s behaviour, they presently have no contact and in circumstances where the child will not be spending time with the father, there is no reason why they should be in contact with each other.  In the event that issues do arise the mother has the option of obtaining an Intervention Order.

15. I will also discharge the appointment of the Independent Children’s Lawyer and dismiss both the mother’s Amended Initiating Application and the father’s Response to that Application.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 April 2016.

Associate: 

Date:  13 April 2016