Sitch & Kovacic
[2024] FedCFamC1F 736
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sitch & Kovacic [2024] FedCFamC1F 736
File number: MLC 12957 of 2021 Judgment of: WILLIAMS J Date of judgment: 6 November 2024 Catchwords: FAMILY LAW – PARENTING – Leave for mother to proceed undefended – Extensive history of family violence perpetrated by the father upon the mother and children – Unacceptable risk of harm to the children as a result of family violence perpetrated by the father – Children to have no contact with the father – Mother to have sole decision-making responsibility Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) pt VII ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 67Z, 102NA
Family Law (Amendment) Act 2024 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-402; [2009] FamCAFC 92
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 487
Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 21 October 2024 Place: Melbourne Counsel for the Applicant: Mr Thistleton Solicitor for the Applicant: Marcou & Associates Pty Ltd The Respondent: No appearance Counsel for the Independent Children's Lawyer: Ms Villella Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers ORDERS
MLC 12957 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SITCH
Applicant
AND: MR KOVACIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1.There be orders, in terms of the Minute of Orders dated 21 October 2024 (“the Minute”) and further:
(a)The Minute be placed upon the court file and marked Exhibit “A”.
(b)Upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
EXHIBIT “A”
1.The mother have leave to proceed on an undefended final basis with her Amended Application for final parenting orders dated 30 August 2024.
2.All previous parenting orders be discharged in relation to the children:
(a)X, male, born 2008;
(b)Y, male, born 2011; and
(c)Z, male, born 2018
collectively known as (“the children”).
3.The mother have sole decision-making responsibility for the children.
4.The children live with the mother.
5.The father spend no time and have no communication with the children or any of them.
6.The mother be authorised to apply to the Registrar of Births Deaths and Marriages in the State of Victoria to remove the middle name from the name of the child presently known as X born 2008, AND IT IS REQUESTED that the Registrar do make all necessary alterations to remove the middle name from the name of the child and to record the child’s new name as X (with no middle name).
7.The Court declares that pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Court is satisfied that it is not practicable to obtain the consent of the father (MR KOVACIC) to enable the children to obtain an Australian Passport to travel outside of the Commonwealth of Australia.
8.The mother (MS SITCH) be permitted to make an application to the Department of Foreign Affairs Australian Passport Office for Australian Passports for the children or any of them:
(a)X, male, born 2008;
(b)Y, male, born 2011; and
(c)Z, male, born 2018
and the consent of the father (MR KOVACIC) to the application be dispensed with AND IT IS REQUESTED that the Australian Passport Office do accept the passport application of the mother for the children (or any of them) without the consent of the father, AND thereafter those passports for the children (or any of them) be held in the possession and safekeeping of the mother.
9.The children or any of them, be permitted to travel outside of the Commonwealth of Australia without the permission of the father.
10.The Court requests that the Australian Federal Police remove the names of the children:
(a)X, born 2008;
(b)Y, born 2011; and
(c)Z born 2018
from the Family Law Watchlist list at all points of international arrivals and departures in Australia.
11.The mother be permitted to provide to any of the children’s and/or her own treating professionals, a copy of the Family Report by Senior Child Expert, Ms B, dated 16 August 2023 (“the Family Report”).
12.The order of a Judicial Registrar dated 4 April 2022 appointing the Independent Children’s Lawyer be discharged.
13.All extant Applications and Responses are otherwise dismissed.
14.Pursuant to ss.62B and 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 person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.A five-year final Family Violence Intervention Order made at the application of the Victoria Police (Case Number …) dated late 2021 and valid until late 2026, remains in place for the children’s and the mother’s protection from the father and these Final Parenting Orders are consistent with that Family Violence Intervention Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
The applicant is the mother, and the respondent is the father of three boys, X aged 16, Y aged 13, and Z aged 6 (“the children”).
The current application before the court is an Amended Initiating Application, seeking final parenting orders for the children filed by the mother on 30 August 2023. The children currently live with their mother and do not spend time with their father.
The mother contends the father poses an unacceptable risk of harm to the children because of family violence he has perpetrated against her, sometimes in the presence of the children, and violence perpetrated against the children.
The father has not spent time with the children since a family violence incident in early 2021.
On 21 October 2022 final parenting orders were made as sought by the mother and Independent Children’s Lawyer in the absence of the father, who did not attend court nor file trial documents. The parties were advised reasons would be delivered at a later date. These are my reasons for the orders made.
BACKGROUND
I adopt the background to the dispute from the chronology of events referred to in the mother’s Outline of Case document filed 14 October 2024, because the father did not file an Outline of Case nor any trial material and did not appear at the hearing.
The relevant chronology of events is as follows.
Both the mother and the father are currently aged 37 years.
The mother and father commenced cohabitation in early 2003, and according to the mother the relationship was characterised by the father’s insidious family violence, long-standing substance abuse issues, his criminality, and problematic mental ill-health.
Their eldest son, X, was born in 2008, their second son, Y, was born in 2011, and the youngest son, Z, was born in 2018.
In early 2021, the parties finally separated after the father abducted Z and drove dangerously with him, whilst he was affected by an illicit drug. The father was arrested, charged, later convicted, served a custodial sentence, placed on a Community Corrections Order, and a Family Violence Intervention Order (FVIO) was obtained upon the application of Victoria Police.
From January 2021, the mother contends the father persistently breached the FVIO and was subsequently charged and convicted for his breaches.
In early 2021 the father assaulted the mother, and threatened to burn the house down. This occurred in front of the children in their family home. During the attack, the father also directly assaulted the children. At the time of the attack, the father was on bail and on a Community Corrections Order with a FVIO in place. Thereafter the father was denied bail in the Magistrates Court and County Court of Victoria (“the County Court”). In mid-2021, the father also applied to the Supreme Court of Victoria for bail and was refused. A copy of the judgement is annexed to the mother’s trial affidavit.
In late 2021, the father was sentenced in the County Court, received a custodial sentence and was placed on another Community Corrections Order. A copy of the judgement of the County Court is annexed to the mother’s trial affidavit.
In late 2021, Victoria Police successfully applied for a five-year final FVIO in favour of the mother and the children. The father continued to breach the intervention order.
On 22 November 2021, the mother filed an Initiating Application in this Court.
On 12 January 2022, a s 67Z Report was received from the Department of Families, Fairness and Housing (“DFFH”) which recommended there should not be any contact between the father and the children.
In early 2022, the father was again arrested and placed in custody due to persistent breaches of the FVIO. The mother believes the father was again convicted and placed on another Community Corrections Order.
On 16 August 2023, the Family Report in this matter prepared by Senior Court Child Expert, Ms B, who recommended, inter alia:
·the children live with the mother, and she have sole parental responsibility for them;
·any time spent with the father remain reserved, with reintroduction between the father and the children only to be considered at the request of the children and after the father has demonstrated the following:
·abstinence from illicit substances for at least two years confirmed by six monthly hair follicle testing or regular urine drug screening;
·ongoing trauma informed mental health treatment by a psychologist for two years;
·successful completion of a men’s behaviour change program.
On 15 April 2004, the mother filed her trial material in accordance with the relevant procedural orders. The father failed to file any trial material.
On 22 April 2024, the Independent Children’s Lawyer met with the two older children, X and Y, both of whom expressed a wish to have no relationship with the father.
The trial was scheduled to commence on 6 May 2024, however due to judicial unavailability was unable to proceed. It was subsequently relisted with priority to commence on 21 October 2024.
On 21 October 2024 the mother and Independent Children’s Lawyer appeared at the trial, with legal representation, however the father did not attend.
I now turn to whether the mother’s application should proceed undefended.
SHOULD THE MOTHER BE PERMITTED TO PROCEED ON AN UNDEFENDED BASIS
On 6 September 2023, Judge Harland made orders fixing a final hearing to 6 May 2024 and various procedural orders for filing of material in anticipation of the trial.
Order 4 of her Honour’s orders required the father to file and serve his trial material fourteen days prior to the trial date, and Order 6 requires both parties to file a Case Outline document no later than two days prior.
Notation C provides that orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) were made for both the mother and father. Notation D to the orders provides that in the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to the filing of documents or any other procedural issues, the application may be struck out, the proceedings may be directed to proceed undefended or the trial may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
On 1 May 2024 the father was notified by email from my Chambers that the trial would not be commencing on 6 May 2024, and had been adjourned to commence on 21 October 2024 at 10.00 am.
The father did not comply with any of the procedural orders and failed to attend the hearing.
On the morning of the rescheduled hearing, the father sent an email to my chambers at 10.07 am in the following terms:
Do whatever yous think is best for my boys just remember the day will come when they find out the truth and I would love to see how you all go explaining why yous took a loving father away from his children and a half brother […], just let them know we love them, forever in our hearts,congratulations [Ms Sitch] you win, well played,please if possible can someone show this picture to my boys so they at least know what there brother looks like.
At 12.10 pm the father was called, however, there was no response.
I accept that the father’s email demonstrates he was aware of the adjourned trial date and that the trial was scheduled to commence on 21 October 2024.
Prior to the commencement of the trial, during the hearing of the oral application by both counsel for the mother and the Independent Children’s Lawyer for the trial to proceed as undefended, counsel for the mother produced several emails evidencing service by the mother’s lawyers, of various documents on the father. These are as follows:
·An email from the mother’s lawyers to the fathers then lawyer’s dated 30 August 2023 serving the mothers Further Amended Initiating Application filed 30 August 2023;
·An email from the mother’s lawyers to the fathers then lawyer’s dated 15 April 2024 serving in the mother’s trial affidavit filed 15 April 2024;
·An email from the mother’s lawyers to the father dated 14 October 2024 serving the mothers Case Outline filed 14 October 2024.
The father was represented by his former solicitors, who were included in the emails referred to above whilst on the record, from 23 March 2022 until 13 September 2024, and again from 28 March 2024 until 9 September 2024.
I am satisfied the father failed to file any trial material in accordance with the orders of Judge Harland of 6 September 2023, he was aware the trial was scheduled to begin on 21 October 2024, and that he or his lawyers acting for him at the relevant times were served with a copy of the mother’s Further Amended Initiating Application, trial affidavit, and Outline of Case document. The orders sought by the mother are identical to those set out in the Further Amended Initiating Application filed 30 August 2023.
I am also satisfied the father is aware of the letter from the Independent Children’s Lawyer dated 22 April 2024, to both parent’s practitioners (referred to at paragraph [5] of the mother’s affidavit filed 29 April 2024), because the father’s lawyers were still on the record as acting for him at that date.
I am therefore satisfied the father has been accorded procedural fairness, and it was therefore appropriate to proceed with the trial on an undefended basis. As identified below, it is clearly in the children’s best interests, and the mothers as the children’s primary carer, that the proceedings are finally concluded.
THE PROPOSALS OF THE PARTIES
The mother’s proposal
Prior to the commencement of the trial, the mother filed a Further Amended Initiating Application on 30 August 2023 which sets out the final orders sought by her. Prior to the commencement of trial, the mother filed an Outline of Case document which set out with precision her proposed Minute of Final Orders. She sought sole parental responsibility to be vested in the mother, the children live with her, spend no time with the father, she be permitted to apply to the Registrar of Births, Deaths, and Marriages to remove X’s middle name, orders permitting her to obtain passports for the children without the father’s consent, removal of the children’s names from the Airport Watchlist, permission for the children to travel outside Australia without the father’s permission, and an order to permit her to provide a copy of the Family Report dated 16 August 2023 to any of the children’s and/or her own treating professionals.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Further Amended Initiating Application filed 30 August 2023;
(b)Trial affidavit filed 15 April 2024;
(c)Affidavit of the mother filed 29 April 2024;
(d)The s 67Z Report dated 12 January 2022 (wrongly marked 2021);
(e)The Family Report of Senior Court Child Expert, Ms B, dated 16 August 2023; and
(f)Affidavit of Mr C, single expert witness, filed 31 August 2023;
The father’s proposal
Because the father did not file trial documents in accordance with the relevant procedural orders and did not attend the final hearing, it is not possible to articulate his proposal.
Documents relied upon by the father
The father filed a Response to Final Orders on 23 March 2022, but as noted above, did not file any further documentation in anticipation of the trial. The father did not participate in the trial and did not therefore identify any documents he relied upon.
The Independent Children’s Lawyers proposal
Prior to the commencement of the trial, the Independent Children’s Lawyer filed an Outline of Case which set out his position, which agreed with the mother, that the children should live with her and spend no time with the father, and that she should have sole decision-making responsibility.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents:
(a)The Family Report of Senior Court Child Expert, Ms B, dated 16 August 2023;
(b)Affidavit of Mr C, single expert witness, filed 31 August 2023.
THE APPLICABLE LAW
This case was heard after the enactment of the Family Law (Amendment) Act 2024 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The mother relied upon her trial affidavit. The affidavit recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the court is to determine what is in a child’s best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account. These include arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child, any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child, the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs and the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
When considering those matters, the court must include consideration of any history of family violence abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
Abuse in relation to a child is defined in s 4 of the Act and includes an assault, including a sexual assault, of the child; or involving the child in a sexual activity in which the child is used directly or indirectly as a sexual object or causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or serious neglect of the child
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
Decision making
Section 61C(1) of the Act provides that each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D).
Orders made allocating parental responsibility for a child in relation to “major long-term issues” to more than one person, may provide for joint or sole decision-making in relation to all or specified major long-term issues (s 61D(3)). The Act defines major long-term issues (s 4(1)) as the child’s education, religion, culture, health, name, and change living arrangements. Section 61DAA defines the requirements of joint decision-making, which are to consult each other in relation to each such decisions and to make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person, in respect of minor decisions for the child which are outside “major long-term issues” (s 61DAB).
Turning now to the general considerations.
GENERAL CONSIDERATIONS
What arrangements would promote the safety of the children
In the mother’s trial affidavit at paragraphs [21] to [62], she details extreme family violence perpetrated by the father to the mother, children, and family pets, from the commencement of the relationship until the date of separation in early 2021. This includes physical violence towards the mother such as kicking, attempted strangulation, verbal abuse, sexual abuse, coercive and controlling conduct, and physical and verbal violence perpetrated on the children. She also refers to the father’s criminal activities, use of illicit drugs, and the criminal activities of his family members.
The Senior Court Child Expert, in the Family Report noted that the father did not appear to deny the mothers allegations of family violence.
At paragraph [63] onwards, the mother refers to the father’s continuing family violence in early 2021. On the day of separation, in early 2021, the father was verbally abusive to the mother in front of the children and was affected by an illicit drug. The mother went to work whereupon the father attended her workplace and threatened to ram the door if the mother did not let him into the premises. The father subsequently rammed his car into a window, shattering the window. He then kicked in the shattered window, entered the building, abused the mother, and threatened to stab anyone in the building. The mother called the police, but the father had already left and abducted the youngest child, Z. When the father arrived home with the child, the police were waiting for him, arrested him, and returned the child to the mother. The police obtained a FVIO against the father on behalf of the mother, to protect her and the children.
In early 2021, the father persistently breached the FVIO and contact the mother by phone on 166 occasions. Two days later, he was arrested for the breaches. The father was charged with a series of breaches of the FVIO, as set out in paragraph [65] of the mother’s trial affidavit.
In early 2021, the father was sentenced to imprisonment and a Community Corrections Order. The father did not comply with the terms of the Community Corrections Order because he did not supply drug screen results as required.
The next day, the father was again arrested for other offences, which were not related to family violence.
In paragraphs [69] to [71] of her trial affidavit, the mother refers to the events of a Sunday in early 2021 when the father physically assaulted the mother in the presence of the children, attempted to strangle her, and told the children that he was going to kill himself and the mother by burning the house down with them inside. At that time, the children were aged twelve, ten, and three years old.
The father was charged with numerous criminal offences, all of which are referred to in paragraph [75]. He unsuccessfully applied for bail to the Magistrates Court, County Court, and Supreme Court. The father pleaded guilty to various charges and was sentenced in late 2021 in the County Court, and a copy of the sentencing judgement is annexed to the mother’s trial affidavit as annexure 4.
At paragraph [81] of her trial affidavit, the mother refers to the remarks of the sentencing judge, which were as follows:
32)Your behaviour was outrageous and is condemned by this Court. Committing violence upon family members is a prevalent crime which deserves the stern denunciation of the Court to reinforce the message that such violence will not be tolerated and will be punished severely. The very fact that the victims of your crimes were your family is an aggravating feature of your offending.
33)[Ms Sitch] and your children were entitled to feel safe in the family home. They were entitled to feel loved and protected by you instead on this occasion you abused, threatened, and assaulted [the mother] in front of your children. The strangulation of [the mother] was the most serious part of your behaviour. This is an act of asserting power and dominance. It has been seen as an aspect of domestic violence that is most concerning and is often a factor that later sees an increase in violence and repetition of offending.
34)As mentioned earlier, this was not the first time that you had offended against [the mother]. Approximately one month prior, you had been sentenced to […] imprisonment and a […] Community Corrections Order for domestic violence related to offending. This not only adds to the seriousness of the offending currently before the court but is also relevant in terms of your prospects for rehabilitation and specific deterrence. You had been gaoled […] and given an order to assist your rehabilitation. This should have brought home to you the seriousness of your behaviour and deterred you from reoffending, but it did not.
35)A further aggravating feature is that your violence occurred in the presence of your three children. On several occasions throughout the offending, your children took action to prevent you committing further violence. Your children were aged 12, 10 and 3 years at the time.
36)Overall, I consider that the objective circumstances of your offending behaviour make it a serious example of domestic violence offending.
The father was sentenced to imprisonment and placed on a Community Corrections Order with conditions relating to his drug use and mental health.
The father was released from prison in late 2021, and a short time later committed further family violence, referred to in paragraph [85] the mother’s trial affidavit, and was again arrested, charged, and placed in custody in relation to breaches of the FVIO.
At paragraphs [93] to [100] of her trial affidavit, the mother refers to the criminal activity and gangland connections of the paternal family.
Taking into consideration the mother’s unchallenged evidence of the father’s consistent appalling family violence, criminal activities, and drug use, it is inevitable to conclude that he poses an unacceptable risk to the children. It is impossible to consider any protective measures which could be successfully implemented to ameliorate the unacceptable the risk the father clearly presents to both the mother and the children.
There are no arrangements which would promote the safety of the children in the father’s care.
Any views expressed by the children
The views of the two older children are referred to in the Family Report dated 16 August 2023. Z’s views were not obtained because of his age and developmental issues. The Family Report writer noted both children were able to articulate reasons why they did not want to spend time with their father.
X provided clear views about the parenting arrangements. He described his father as “chaos”, recalling an unpredictable and dangerous environment in his father’s care. He wanted a stable and safe home environment, and emphasised he felt more secure and happy when living with his mother. He does not wish to spend any time with his father and said his father’s care was characterised by physical and emotional abuse, which contribute to his feelings of insecurity and danger. He stressed his mother’s care has enabled him to recover from those experiences and thrive academically and socially. His biggest worry is that his father will kill his mother, and he was doubtful that his father could maintain abstinence from drugs. He was cognisant of the detrimental impact on the families over all well-being, because of the father’s drug use.
Y does not wish to spend any time with his father. He is fearful and distrustful of him and said his father’s presence was a source of anxiety, and it was difficult for him to consider how they could spend time together safely.
Additionally, the Independent Children’s Lawyer interviewed the two older children on 22 April 2024, to ascertain their then current views.
In her affidavit of 29 April 2024 at paragraph [5], the mother refers to a letter from the Independent Children’s Lawyer Their views were reported as:
Both children confirmed that they did not want anything to do with their father now or in the future and under no circumstances did they want to spend time with him or meet with him.
They both gave numerous examples of abuse by the father against them, their dog, and their mother during the course of the marriage.
Both boys were articulate and clearly able to express their views. They both indicated they were doing well at school and socially and were very concerned that their father may locate them. They both indicated they were scared of him and that he remained a threat to their family.
The Independent Children’s Lawyer commented that the boy’s position appears to have not changed at all in the last year or so and they have been very consistent in what they have said.
X who is now 16 years old, has expressed an ongoing opinion that he needs his middle name removed.
I intend to accord significant weight to the views of both older children because of their past experiences, the objective evidence of the father’s appalling family violence, the obvious maturity and thoughtfulness when expressing their views to the Family Report writer, and capacity to articulate the reasons why they did not want to spend any time with their father.
Developmental, psychological, emotional, and cultural needs of the child
X has witnessed the father’s appalling family violence perpetrated against the mother, the children, and animals. He has undoubtedly been affected by what he has witnessed, been subjected to and heard. As identified in the Family Report, he has experienced mental health concerns, has self-harmed, and attempted further self-harm in the past. However, according to both X and his mother, the risks have abated in the last two years. He is achieving moderately well academically and will seek a trade pathway for his final years of education. He is passionate about sport, and as reported to the Family Report writer it provides him with an outlet for his emotions. His mental health has improved significantly since the children stopped spending time with their father.
The two younger children have particular needs as identified by the mother in her trial affidavit at paragraph [3].
Y’s special needs are:
·Autism Spectrum Disorder;
·Attention Deficit Hyperactivity Disorder;
·Expressive and receptive language delay; and
·Hearing impairment.
According to the Family Report writer, Y was observed “to be the most reserved of the three children and presented as sullen and withdrawn”.
The Family Report writer further posited that, “the material suggests [Z] is mute, but he presented as an energetic curious and chatty child when he arrived at the registry. He was observed to demonstrate some autistic traits… in particular when he became excited. Although he is no longer non-verbal, his communication skills were limited to short sentences or single words and he was observed to be overly affectionate with strangers including court staff”.
Z’s special needs are:
·Autism Spectrum Disorder;
·Expressive and receptive language delay; and
·Is currently being assessed for Attention Deficit Hyperactivity Disorder.
All three children live with trauma substantially arising from the father’s family violence.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
I propose to make orders providing for the mother to have sole decision-making responsibility for the children.
The mother has been diagnosed with post-traumatic stress disorder and possibly depression, which is not surprising. She has engaged with a psychologist to address both and has found it beneficial to support her recovery. She has been the sole carer of the children since March 2021 and, as identified by the Family Report writer, she is the children’s primary attachment and sole caregiver.
According to the Family Report writer, the mother expressed a comprehensive understanding of the children’s individual needs and provided a thorough overview of the supports she has obtained to assist them. She presented as a committed parent who has prioritised the children’s needs, engaged in an appropriate therapeutic therapy to address their developmental concerns, and has reflected on their experiences with the goal of protecting them from further exposure to family violence and child abuse. She demonstrated a capacity to implement firm boundaries when required but was also observed by the Family Report writer have a kind approach with the children, which they responded to well. Despite the significant challenges presented by the children, she was assessed as a competent and loving parent.
The father has no capacity to care for the children. He has caused harm to the children and their mother, and during the three years of these proceedings has done nothing to ameliorate the risk he poses to the children. The relevant matters are as follows:
·The father has failed to comply with requirements to provide ongoing supervised drug screens;
·He has failed to complete a men’s behavioural change program or a turning into kids post separation parenting program;
·He has continued to criminally reoffend;
·He has not provided adequate disclosure of his criminal matters, including the outstanding criminal proceedings before the Magistrates Court which is scheduled for hearing in late 2024;
·He has failed to provide any updated evidence about his mental health or treatment; and
·He has persistently and flagrantly breached court orders including breaching bail, community corrections orders and persistent breaches of the FVIO’s which were made to protect the mother and the children.
The children are of Country D descent on the paternal side; however, the father has denied the children a connection to the parental cultural heritage because of his own conduct and family violence.
The benefit to the child of having a meaningful relationship with both child’s parents and other people who are significant to the child
In McCall & Clark [2009] FamCAFC 92 at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
In this case, the children presently have no relationship with their father since he assaulted their mother in their presence in the family home in early 2021, which resulted in the father being incarcerated and generally due to his abhorrent behaviour and family violence. The children were systematically exposed to the father’s family violence during the relationship, and were the targets of his violence, as was the mother.
In contrast, the children have a safe supported and secured loving relationship with their mother, who has done her best in trying circumstances.
I am unable to conclude that there is any benefit to the children having a meaningful relationship with their father because of the extreme family violence perpetrated by him, which is referred to above, and extensively in the mother’s trial affidavit.
Anything else that is relevant to the particular circumstances of the child
The mother seeks orders for permission to delete the middle name of the oldest child, X, which is the father’s name. At paragraphs [101] to [108] of her trial affidavit she refers to the reasons why, which is primarily because the oldest child does not wish to have his father’s name as a middle name. I also rely on the comments of the Independent Children’s Lawyer, who interviewed X in April 2024, that he wishes his name to be amended and I consider it appropriate to make the orders sought by the mother.
The mother also seeks orders to enable her to obtain passports for the children without the consent of the father and for the children’s names to be removed from the Airport Watchlist, which prevents them travelling outside the country. She refers to the relevant reasons at paragraphs [109] – [114] of her April 2024 affidavit.
Because the children will live solely with their mother and she will be solely responsible for decision-making, I considered appropriate that she is able to travel with the children overseas if she so desires and that she should not have to consult the father to obtain a passport for the children because of the extreme family violence he has perpetrated, and the children’s lack of relationship with him.
I will therefore make orders removing the children’s name from the Airport Watchlist, enabling them to travel outside of Australia, and orders to enable the mother to obtain passports for the children without the consent of the father.
The mother also seeks orders to provide a copy of the Family Report to any of the children’s treating professionals, and her treating professional, which again I consider appropriate and for the ultimate benefit of the children. It would obviously assist any treating professionals to understand the family violence perpetrated by the father upon the mother and the children, and the consequential effect on them. I propose to make the order as sought.
Decision making
The mother also seeks an order that she have sole decision-making responsibility for the children, which I intend to make.
As the father has had no relationship with the children since March 2021, and is unlikely to have one in the future, I consider it appropriate for the mother to be charged with sole decision‑making responsibility.
Furthermore, to expect the mother to consult with the father in circumstances where she and the children have been victims of serious family violence and assault, is completely untenable, contrary to their welfare and would most probably expose them to further family violence at the hands of the father.
CONCLUSION
Taking into consideration all of the relevant statutory factors, it is not possible to discern how the children could have a future relationship with their father, because of the significant safety concerns referred to above, and the deleterious and traumatic effect on their mental health, or that it would be in their best interest to do so.
During the Family Report assessment, the father did not deny to the writer the allegations levelled against him, and in the context of objective evidence of his criminal behaviour and the comments of judges who have dealt with his offending, it would be difficult for him to do so.
The family violence perpetrated by the father against the mother and the children is severe and outrageous. The children’s physical, emotional, and psychological safety needs to be prioritised.
There are no mitigating factors which could be implemented to ensure the children’s safety, if they were to spend time with their father. I am also cognisant of the views of the two older children who present as mature and articulate, although obviously have been subjected to severe trauma at the hands of their father.
I intend to make orders as sought by the mother, which I consider to be in the best interests of the children.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 6 November 2024
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