SLOVSKY & GASTIN
[2016] FamCA 964
•15 November 2016
FAMILY COURT OF AUSTRALIA
| SLOVSKY & GASTIN | [2016] FamCA 964 |
| FAMILY LAW – CHILDREN – Best interests – Spend time with – Where there is one child who is 11 years of age – Where the father seeks orders that the child be introduced to him and spend time with him on a gradually increasing basis leading to alternate weekends – Where the mother seeks that the father’s application be dismissed – Where the Independent Children’s Lawyers seeks orders that the child be provided with some basic details in relation to the father – Where the child has never met or had any meaningful contact with the father – Where it is the mother’s belief that the father sexually assaulted her resulting in the conception of the child – Where the mother has a history of drug abuse – Where the child has a strong view against having a relationship with the father – Where the mother is unwilling and unable to facilitate and encourage a relationship between the father and the child – Orders made that the mother have sole parental responsibility for the child, that the child live with her and spend no time with the father – Order made that the Independent Children’s Lawyer provide the child with a sealed envelope containing basic details about the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC |
| McCall & Clark (2009) FLC 93-405 Champness & Hanson (2009) FLC 93-407 |
| APPLICANT: | Mr Slovsky |
| RESPONDENT: | Ms Gastin |
| INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
| FILE NUMBER: | SYC | 6236 | of | 2009 |
| DATE DELIVERED: | 15 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 24 - 25 October 2016 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr Katsinas |
| SOLICITOR FOR THE FATHER: | JK Solicitors |
| COUNSEL FOR THE MOTHER: | Mr Valentin |
| SOLICITOR FOR THE MOTHER: | McNamara & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
Orders
All existing parenting orders in relation to B born … 2005 (“the child”) are discharged.
The mother shall have the sole parental responsibility for the child.
The child shall live with the mother.
Unless the parents otherwise agree in writing, the father shall spend no time with the child.
Unless the parents otherwise agree in writing, the father shall not initiate any communication with the child.
In the event that the child expresses to the mother a wish to make contact with the father, the mother shall engage a suitably qualified person to provide emotional and psychological support for the child.
The mother is restrained from denigrating the father to the child or in his presence or hearing and she is to take all reasonable steps to prevent any other person from denigrating the father to or in the presence or hearing of the child.
As soon as practicable after the making of these orders, the mother shall facilitate the attendance of the child on the Independent Children’s Lawyer at a time, date and place nominated by the Independent Children’s Lawyer. The Independent Children’s Lawyer shall explain the import of the Court’s orders and provide to the child in a sealed envelope, the full name of the father, his date of birth, his occupation and his current address.
The Court notes that it is intended by Order 8 that the child would thereby have access to information about his father should he later wish to know something about his father or contact him.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.
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 Slovsky & Gastin 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 SYDNEY |
FILE NUMBER: SYC6236 of 2009
| Mr Slovsky |
Applicant
And
| Ms Gastin |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings about B (“the child”) who was born in 2005. At the time of the hearing, the child was 11 years of age.
Until 2013 the child thought that his mother’s partner was his father. He has never met his father and does not know his father’s surname. The father has made four parenting applications since 2005, seeking to be involved in the child’s life. The father now seeks orders including orders that he be introduced to the boy and that he ultimately spend time with him, including overnight occasions each week and for block periods. The mother is strongly opposed to the father meeting or having any involvement with the child. In the main, the mother’s attitude is based on her assessment of the father, including her belief that the child’s conception arose from a sexual assault.
The critical issues turn on the likely benefits to the child of having a relationship with his father, weighed against the risks associated with imposing such a relationship over the strong objections of the child and in the face of the implacable opposition of the mother.
Applications
The father sought orders in terms of the Case Outline document presented in his case. During final submissions the father’s counsel indicated that the father also proposed that a regime of therapy be included in the Court’s orders, to assist the child to be ready to spend time with his father. The orders set out in the Case Outline together with a handwritten note produced by the father’s counsel became exhibit 9. The numbering of those documents makes little sense. Doing the best I can with the two documents and renumbering the provisions, the father seeks the following orders:
1.That the child live with the mother.
2.That the mother have sole parental responsibility.
3.That the child engage with an appropriately qualified child psychologist to assist the child to work towards his introduction to the father.
4.The father to nominate the child psychologist and inform the mother’s legal representatives of same.
5.The child psychologist assist the child to achieve the following:
a.to understand that the court has made an order that the father be permitted to spend time with him.
b.to understand that the court has deemed it in his best interests to spend time with the father.
c.to understand his circumstances.
d.to engage in therapy with the child to allow him to emotionally and psychologically deal with the introduction to his father.
6.That the child attend upon his psychologist once every fortnight
7.That the father pay all costs associated with the child psychologist.
8.That the child be introduced to the father within 2 months after the child’s attendance upon the child psychologist, by the psychologist.
Spend time arrangement
9.After the child’s introduction to the father by the psychologist, the father spend time with the child from the first Sunday after the introduction of the child to the father and for a period of 3 months every Sunday from 10:00am to 5:00pm.
10.Thereafter, the father shall spend time with the Child:
a.every weekend from Friday immediately after school to Sunday 5.00 pm; and
b.for additional time during school holidays and other significant times as follows:
i.The first half of all school holidays in even numbered years starting from the date of these orders;
iiThe second half of all school holidays in odd numbered years starting from the date of these orders;
iii.On the Father’s birthday and on Father’s Day from 3.00 pm to 7.00 pm if such time is not already time spent with the child;
iv.On the Child’s birthday the Child will spend time with the parents that he is not already spending time with from 3.00 pm until 7.00 pm;
v.from 12.00 noon on Christmas Day until 12.00 noon on Christmas Day each even numbered year starting from the date of these orders if such time is not already spent with the child;
vi.from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day each odd numbered year starting from the date of these orders if such time is not already time spent with the child;
vii.From 3.30 pm on Good Friday until 3.30 pm on Easter Sunday each odd numbered year starting from the date of these orders if such time is not already time spent with the child;
viii.From 12.00 noon on Orthodox Christmas Eve until 7.00 pm on Orthodox Christmas Day if such time is not already spent with the child;
ix.From 3.30 pm on the Friday of Orthodox Easter until 3.30 pm on Orthodox Easter Sunday if such time is not already time spent with the child; and
x.such additional times as the Child may wish
11.The Father’s spend time arrangement with the Child is suspended if it falls on Mother’s Day or the Mother’s birthday and on that day the Child shall spend time with the mother from 3.00 pm until 7.00 pm.
Pick up and drop offs
12.The Mother shall nominate a suitable public location where pick up and drop off is to occur. A suitable location may be but is not limited to a McDonald’s Restaurant, shopping centre or busy park.
13.The parties are not permitted to take the Child to a Police Station for any drop off or pick up unless the party is in immediate fear of their safety.
14.The mother is responsible for making arrangements for the Child to attend the pick up location and the Father is responsible for returning the Child to the drop off location at the end of his spend time arrangement.
Communication
15.Each parent is restrained from speaking to the Child or to any other person in the Child’s hearing in derogatory terms about the other.
16.Each party is restrained from encouraging or permitting any family member to speak in derogatory terms about the other parent within the Child’s hearing.
17.That the party with whom the Child is not living or spending time with be permitted to communicate with the Child by telephone, SMS, or email no less than two occasions a week and at other times as agreed between the parties.
Child’s Name
18.That the Child’s name shall be ‘[B Gastin-Slovsky]’ and that the New South Wales Registrar or Births, Deaths and Marriages shall be informed accordingly within 7 days of the making of these orders, and shall be requested to amend all relevant records pertaining to the Child accordingly.
19.That the mother shall within 7 days of the making of these orders cause all relevant records pertaining to the Child, such as medical, school and anything else, to be amended so as to indicate the child’s true name.
Miscellaneous
20.That the Father shall have liberal contact with the Child during any school events, sporting activates or cultural activates and events the Child may attend;
21.That the Mother shall forthwith forward to the school and activity centre the Child may attend, the Father’s contact details so that the school and activity centres may send to the Father copies of school and other progress reports, school and activity notices and other notification of events.
22.That the Mother shall within 7 days of the date of these Orders provide to the Father a set of recent photographs of the child.
Costs
23.That a party found to be in breach of these Orders is required to pay to the other party costs arising out of and ancillary to any proceedings taken to remedy the breach.
24.That the Mother pays the Father costs arising out of and ancillary to the making of these Orders.
25.Any other order the Court may deem fit.
The mother sought the orders set out in her Case Outline document sealed on 19 October 2016, which became exhibit 8, as follows:
1.That the Applicant Father’s application be dismissed.
2.That the Respondent mother to have sole parental responsibility of [B Gastin] born … 2005 (“the child”).
3.The Applicant Father is to not have contact with the child.
3.That the Applicant Father pay the Respondent mothers costs.
Save for an additional order that the mother be restrained from denigrating the father to the child, the Independent Children’s Lawyer’s (“ICL”) proposals were set out in a document submitted during final submissions – exhibit 7, as follows:
1.That the mother have the sole Parental Responsibility for [B] (the child).
2.That the child live with the mother.
3.That Order 2 made on 4 April 2006 be discharged.
4.In the event that the child expresses a wish to make contact with [Mr Slovsky] that the mother engage [the child] with a suitably qualified person to provide emotional and psychological support for the child.
5.That the ICL meet with [the child] to provide him with his father’s full name, date of birth and current address.
Written Evidence
The applicant relied on:
·Affidavit of Mr Slovsky sworn 28 September 2016; and
·Affidavit of Mr C filed 15 September 2011
The respondent relied on:
·Affidavit of Ms Gastin sworn 7 October 2016
Expert Evidence
The following expert evidence was relied on:
·Family Report by Senior Family Consultant Ms D, dated 16 September 2016.
·Ms E prepared two earlier reports in these proceedings (12 September 2012 and 9 June 2014). At those times Ms E held a position with the Courts as Family Consultant.
The Hearing
The hearing was listed for two days but only occupied one and a half days. It commenced on 24 October 2016. The cross-examination of the parents was concluded on that date but for 30 minutes in the mother’s case. Arrangements had been made to take the oral evidence of the single expert after lunch on the second day. For that reason the hearing did not resume until 12.30 pm on 25 October 2016. Thereafter the mother’s evidence was concluded, the single expert was cross-examined, oral submissions were made and judgment was reserved.
Short History
The father was born in Europe. As at the date of the hearing he was 53 years of age. As at the date of the hearing the mother was 47 years of age. The parents met in 2003. According to the mother, they never had a personal relationship. The father disagrees, contending that he and the mother commenced a personal relationship shortly after they met and separated in approximately October 2004.
The child was born in 2005.
The mother has two older children, namely Mr F, 24 years of age and Mr G, 19 years of age. Mr F and Mr G have different fathers. Mr H is the mother’s current partner and is the father of Mr G. Mr H is also of European heritage but from a different region than the father.
Credibility and Submissions
Neither of the parents was a good witness.
The father had the fundamental problem that his case did not match his evidence. He sought to demonise the mother, to say that the child was not safe with the mother and yet he seeks orders whereby the child will continue to live with the mother and to be exposed to the mother’s partner, unsupervised and without any restraint on their conduct. He said that it would not be fair to take the child away from the mother. In my view, if the child is unsafe with the mother and her partner, the need to be fair to the mother should have no priority. That leaves open that the orders he seeks are inappropriate or that key aspects of his evidence are simply incorrect.
Oddly, the only corroborative or supportive affidavit relied on by the father was sworn five years ago. The age of the deposition may have contributed to that witness not being required for cross-examination.
The mother said that she omitted some facts from her affidavit and gave reasons such as - she did not have enough time to prepare the affidavit; she could not put all of her evidence into her affidavit; she did not want to think about the events in question and in any event, at times she had put those events out of her mind. For example it was her evidence during cross-examination that the father had struck Mr G some years ago. She had not mentioned that fact in the proceedings until cross-examination in this trial. She was asked about her concerns for the child if he was to spend time with the father. She mentioned without detailing them: safety concerns; concerns for the child’s mental health; a concern that the father would undermine her with the child; and a concern that the child had many other activities on weekends. The mother did not seem to appreciate that given the apparently serious categories of the first concerns, the idea that the child would be too busy on the weekends to spend time with his father, is of little, if any relevance.
The mother’s answers were often unresponsive. She was asked what she had told, the child or Mr H or her other sons about certain matters and answered as to what those individuals knew or would say. The mother rejected much of the Ms E’s 2014 report insofar as Ms E purported to set out what the mother told her. In terms of the balance of probability, it is more likely that Ms E accurately recorded what the mother said to her and that the mother’s recollection is imperfect.
The mother did not call any evidence from her partner or either of her adult sons. One could understand not wanting to involve the boys but no credible explanation was given for not calling Mr H. In circumstances where the mother’s partner was present at some of the events that were apparently important to the mother’s narrative, it could have been argued that his evidence would not assist her case.
Ms D gave evidence as an expert and her credit was not called into question.
Background Facts
The background facts, in particular those relating to the parents’ relationship, are unusual and highly contested by them. The mother is a health professional and the father has a professional occupation.
The mother’s oldest son, Mr F is about 24 years of age and lives independently of the mother. I understood the mother to depose that Mr F lives with his father.
In 1994 the mother met Mr H. They have had an “off and on” relationship for many years. At the time of the trial they lived together but when she interviewed the mother in early September 2016, Ms D was told, that was not the case. At times the mother and Mr H both used heroin. The mother gave evidence on several occasions that Mr H introduced her to heroin and that whenever he was using or relapsed into drug use, she had to get away from him for fear of also being drawn into using heroin.
In 1997, Mr G was born to the mother and Mr H.
In December 2000 the mother ceased taking heroin. She admitted herself to I Hospital Drug & Alcohol Service for treatment and remained drug free until 2004.
In May 2003 the parents met when the father was acting in his professional capacity. A few weeks later, the father also attended the mother’s home as part of his work.
It is the father’s contention that approximately one week after he visited the mother’s home, the mother called him with words to the effect of “I put an AVO against Mr H. He was being violent with me and the Police came and arrested him. I don’t have anyone else and I don’t know who to turn to. Can you be there for me? Just be my friend, visit me often. I’m a heroin addict and I need to stop”. In cross-examination the mother said that she did not say those things. The mother was asked about Mr H being violent to her and I understood her evidence to be that by ‘violent’, she meant that he used and encouraged her to use, heroin.
The father asserts that towards the end of May 2003, he and the mother commenced a personal relationship. The mother denies this. It is the mother’s evidence that she never had a personal relationship with the father. It is her case that on no occasion did she knowingly have sexual intercourse with the father. It is her evidence that the father assisted her with professional matters. Even then, the mother says that at times he was unprofessional. The example she gave was that once, as part of their professional dealings, the father stopped by his mother’s house to introduce the mother to his mother.
The father said that in June 2003 the parents’ relationship became more serious. The mother introduced him to her parents. The father said that he introduced the mother to his friends and family.
In July 2003 the father was at the mother’s house when Mr H dropped in. At that time there was an AVO in place against Mr H for the protection of the mother and she called the police.
The mother said that by September 2003, the father began to attend at her unit late at night. She said that at times he asked her to lend him money.
In September 2003 the father found the mother a suitable investment. The mother requested that the father speak to her father about the purchase. I understood the mother to say that her father would not assist her with finance unless he was satisfied that his money was to be applied to a real estate purchase and that her father wanted to speak to Mr Slovsky in regard to the proposed investment. It is agreed that the parents stayed at the home of the mother’s parents at Suburb J. The father contends and the mother denies that they had sexual intercourse during that visit.
It is the mother’s evidence that around that time, she attended a pub with the father to obtain some assistance from him with a loan application. She deposed that she only had one drink but woke up with limited memory. It is now the mother’s contention that she was drugged and otherwise assaulted by the father. Of course the mother cannot give probative evidence to support that contention.
The mother said that the father continued to appear at her home, despite her no longer requiring professional assistance. The mother cannot account for the fact that she did not take consistent steps to prevent the father attending at her home.
In October 2003 the father asked the mother’s father for permission to marry her.
The father deposed that in March 2004 he observed the mother to be under the influence of heroin. He said that around this time, they discussed renovating the mother’s home and moving into the investment property recently purchased by her. It is the mother’s evidence that in early 2004 she commenced renovations on her home and entered into a contract with a builder. She said that the father interfered with the building process and instructed builders without her knowledge.
The mother deposed that in April 2004 the father came to her home with Easter presents for her children. The mother said that she told him, that was inappropriate.
In April 2004 the mother moved into the home she had recently purchased. She said that the father turned up uninvited to a house warming party, and told her neighbour that he had purchased the house for her and that he was married to her.
The father said that in May 2004 he and the mother moved into the mother’s investment property. He said that at this time, he again observed her to be under the influence of heroin and associating with Mr H.
The mother said that in June 2004 she recommenced seeing Mr H. She said that he was not using heroin at that time.
The father alleges that in July 2004 he observed the mother’s mental and physical behaviour to change. He said that she requested his help in getting off drugs. He deposed that he took two weeks off work to help look after her.
The mother contends that in July 2004 the father attended her home and socialised with Mr H. The mother said that she remembers taking a drink and waking up in her bedroom the next day, naked. She said that Mr H was in her bed when she woke. She realised that someone had sexual intercourse with her overnight and she asked Mr H if he had sex with her. He told her that he had not.
The father deposed that on 9 August 2004 he received a call from Mr G’s school because Mr G had fallen and hurt himself. He said that he spoke to the mother, who was tied up at work and requested that he pick up Mr G. The father said he picked Mr G up from school and facilitated his attendance upon a GP.
The mother deposed that on 13 August 2004 the father attended her home. Mr H later arrived and they started drinking. The mother said that an altercation ensued, and the father hit her. She called the police. It is the father’s evidence that he attended on the mother’s home and she suddenly started yelling at him to get out.
On 18 August 2004 an interim AVO was issued against the father for the protection of the mother.
On 23 August 2004 the AVO application came before a NSW court and the father consented to the continuation of the AVO.
On 31 August 2004 the father was charged with breaching the AVO. The AVO was varied to prevent the father from having any contact with the mother.
In September or October 2004 the mother relapsed into heroin use.
The father asserts that in October 2004 he dropped into the mother’s home to check on her and the children. He said that he heard Mr H’s voice coming from within the house. He said that he called the mother’s father and expressed his concern about the mother and that her father advised him to call the police. The father said that he later attended upon Mr F’s school and that Mr F told him that he had not eaten in three days. He then drove to Mr G’s school, where he was told that Mr G had not attended school for at least a few days. He explained that later that day he saw the mother, Mr H and Mr G in the street and approached them with words to the effect of “What are you doing? Why isn’t Mr G at school? I will tell your mum everything. I will tell her about Mr H, that you’re back on heroin and that you can’t look after the kids”. The father said that he went to a local pub where he called the mother’s mother. While he was talking to her, the police approached him and he was charged with breach AVO.
The father said that it was after this incident that he broke up with the mother. He said that he moved all of his belongings out of her house and stopped all communication with her.
In December 2004 the mother realised she was pregnant. She said that she told Mr H that they were having a baby. The mother said that she realised she would need to abstain from drugs due to her pregnancy and she accepted some help and support from the father in that regard. She said she later regretted letting the father back into her life and again shut down all communication with him.
In late December 2004 the mother moved into her sister’s house in Suburb K.
In December 2004 the father was arrested for breach of AVO relating to the mother and he spent a night in custody.
The following day the father was granted bail at Suburb L Local Court. Ultimately he was found to have breached the AVO and was sentenced to 100 hours of community service. The father contends that the breach arose out of the events referred to in paragraph 49 above.
In early 2005 the mother commenced the methadone program and again ceased using heroin.
The father said that in March 2005 he paid for two weeks’ accommodation for the mother, Mr F and Mr G at a hotel to assist the mother to abstain from drug use. It appears from the mother’s evidence that she contends this occurred in December 2004 and that it was for three days. Nothing turns on the resolution of those disputed facts.
In 2005, the child was born. The father said that the mother rang him to tell him that she had given birth and thereafter he attended the hospital. The father said that after seeing the child, he formed the opinion that he was the child’s father. He deposed that while he was at the hospital he had a discussion with the mother during which she said that she did not know who the father of the baby was, that Mr H had raped her and they discussed doing a DNA test. The mother said that she cannot recall talking to the father at this time but she denies saying to the father that she was raped by Mr H. The mother contends that Mr H (and not the father) was present during the birth.
One week after the child’s birth, the mother was released from hospital and she spent six weeks with her parents on the NSW South Coast. Her mother then stayed with her for a further two months to provide assistance.
In June 2005 a DNA test was conducted confirming the applicant to be the child’s biological father.
On 22 September 2005 the mother reported to the police that the father had sexually assaulted her in 2004, resulting in the conception of the child.
On 19 October 2005 the father first commenced parenting proceedings. He filed an Initiating Application in this Court seeking orders including an order that he be able to spend time with the child.
On 27 March 2006 the Family Report by Family Court Mediator and Registered Psychologist, Ms M dated 21 March 2006 was released to the parties.
On 4 April 2006 the parenting proceedings were concluded by consent and orders made as follows:
1.That the child [B] (date of birth ...2005) reside with the respondent mother.
2.That the said child have no contact to the applicant father.
3.That the mother pay, within 28 days one half the costs of the child representative.
4.That the matter be removed from the Active Pending Cases List
The father did not have legal representation during those proceedings and later said that he did not understand the import of agreeing to those orders.
On 20 June 2006 the father filed a second Initiating Application in this Court. He sought to have the consent orders made on 4 April 2006 discharged and orders that he spend time with the child.
On 6 June 2007 the father’s second application was summarily dismissed. The trial judge found that he had failed to establish a change in circumstances since the orders of 4 April 2006 were made.
In 2007 the mother relocated and since that time has not disclosed her address to the father.
The mother said that from 2008, Mr H was put on Subutex Assisted Opiate Withdrawal program. She also became concerned that she might relapse and entered the same program until 2013. The mother said that at times Mr H used Subutex that had been prescribed and supplied for her.
On 19 October 2009 the father filed a third Initiating Application, this time in the Federal Magistrates Court. That application was dismissed on 7 April 2010.
The mother deposed that since 2009, Mr H has lived with her most of the time, aside from periods of time from 2014 when he was providing assistance to his mother. I understood the mother to say that she relapsed into drug use in 2010 or 2011. I understood the mother to say that on each occasion her relapse was for a matter of days and that she immediately took action by resigning her employment and commencing treatment.
On 15 September 2011 the father filed his fourth Initiating Application, again in the Federal Magistrates Court. By that application the father commenced the current proceedings.
On 18 September 2012 a Family Report prepared by a Family Consultant, Ms E, dated 12 September 2012, was released to the parties.
On 15 February 2013 orders were made, including an order by consent as follows:
…
9.The parties agree that since the consent Orders made on 4 April 2006 (“the consent Orders”) there has been a significant change in circumstances sufficient to satisfy the test in Rice & Asplund and the Applicant’s application to vary the consent Orders should proceed.
…
On 28 March 2013 orders were made including the following:
2.The parties do all things necessary to attend upon [Ms N] at the first available opportunity, and the mother ensure the attendance of the child [B], born on … 2005, (“the child”) at [Ms N’s] office as directed by [Ms N].
3.The parties do all things required by [Ms N] to enable her to work with them and the child.
4.The parties comply with all directions of [Ms N] to effect an introduction of the child to the father and such further meeting between the child and the father as [Ms N] deems appropriate, unless [Ms N] recommends that such introduction is not in the child’s best interest.
Ms N is a social worker.
In April 2013, the Federal Magistrates Court became the Federal Circuit Court.
At an interview involving the mother and the child in September 2013, the child was told by Ms N that his biological father was not Mr H but a man called Mr Slovsky. The mother was very upset when this occurred and behaved badly in the presence of the child. It is the mother’s evidence in that regard that she was shocked by Ms N informing the child without discussing with her in private the way in which that would be done.
On 9 June 2014 a second Family Report prepared by E, dated 9 June 2014, was released to the parties.
On 20 June 2014 the Federal Circuit Court transferred the proceedings to this Court.
On 30 May 2016 the proceedings were set down for hearing over two days commencing on 24 October 2016.
On 20 September 2016 an updated Family Report by Ms D, dated 16 June 2016 was released to the parties.
The Expert Evidence
The most recent single expert report was prepared by Ms D. Ms D has worked as the Regional Co-ordinator Child Dispute Services since 2007. Ms D has worked as a conciliator, Manager Child Dispute Services, as a family court counsellor/mediator, as a cardiac and neonatal social worker, director of a fostering agency, school social worker, and a family support worker.
Ms D’s report in this matter is dated 16 September 2016 and is in the form of an updating report.
Ms E prepared two earlier reports in these proceedings (12 September 2012 and 9 June 2014) when she was employed as a family consultant with the Family Court. Ms D’s report is an updated report confined to certain issues and did not traverse the history set out in Ms E’ reports.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
It is appropriate in this case to note the objects of the Part and the principles underlying those objects. Relevantly, s 60B provides:
(1)The objects of this Part 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.
(2)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).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
It is agreed that the mother will have sole parental responsibility for the child and that he will live with her, at least for most of the time.
The range of dispute on the key areas is:
a)Whether the child should be introduced to the father and if so, how that should be done;
b)What time, if any, the child should spend with the father;
c)If the child is not to be introduced to the father, whether, when and how he should be give information that would permit him to know something of his father and to communicate with his father should he later wish to do so.
Section 60CC Considerations
As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings[1]. The facts of the case will be applied to the s 60CC considerations as they relate to these proceedings:
[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child[2]. That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2] McCall & Clark (2009) FLC 93-405
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3] Champness & Hanson (2009) FLC 93-407
This is a critical criterion in the context of these proceedings. The child has no relationship with his father and may have no relationship with him in the future unless orders are made. It is necessary to assess the benefit to the child of establishing a relationship with his father.
As the principles underlying the objects of this Part make clear, except when it is or would be contrary to his best interests, the child has the right to know and be cared for by both his parents and to spend time on a regular basis, and communicate on a regular basis with them.
In the context of four sets of family law proceedings, the mother has consistently asserted that the father sexually assaulted her. She is implacably opposed to the father spending time with the child. She says and I accept that the events of the parents’ interaction and the thought of the orders sought by the father, greatly distress her.
There is currently no meaningful relationship between the child and his father, beyond the fact that they are father and son. That said, given the priority accorded to the child’s rights in respect of his parents, if it is otherwise beneficial, orders made in these proceedings should promote their relationship.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but again, only for new proceedings. As the legislation relates to these proceedings, s 4 of the Act sets out the following definitions:
“abuse”, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There are no allegations of sexual abuse in respect of the child. It is the mother’s contention that she was the subject of a sexual assault – family violence, in the context of these proceedings. There were no criminal proceedings instituted against the father for the alleged assault and as the mother’s evidence makes clear, she was and is unable to give probative evidence about the child’s conception.
The mother’s evidence is to the effect that she was not aware or conscious at the time of the child’s conception. The mother woke to find that someone had engaged in sexual intercourse with her and she had no awareness or recollection of that occurring. She woke with her partner, Mr H, in her bed, assumed that he had sexual intercourse with her on the night in question and challenged him to that effect. She says that he denied having sexual intercourse with her on that night.
Upon later discovering that she was pregnant, the mother initially assumed that Mr H was the father of the baby. Mr H attended at the birth. Paternity testing later revealed the applicant to be the child’s father. Some time after receiving the test results, the mother made a report of sexual assault against the father, to the NSW police. No charges were ever laid against the father.
The mother’s allegations against him are rejected by the father. It is his case that the parents’ were in a loving relationship.
If the father assaulted the mother in the ways she contends, that would be a highly relevant finding in these proceedings. It would argue against the father having any communication or contact with the child. That finding is not sought and nor could it be on the presenting facts.
It is only possible to say that the mother strongly believes that the father sexually assaulted her. Similarly, the father strongly rejects the mother’s belief.
There are no credible allegations of abuse or family violence as between the mother and the father. Although denied by her, there was violence inflicted on the mother by Mr H.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child‘s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child‘s views;
Ms D recorded the views expressed by the child. She said that the child was adamant that he does not want to see his father or have contact or communicate with him via cards or letters. The child expressed to Ms D that he does not want to meet his father. He expressed some level of curiosity as to what his father might look like, but said that he did not want to see a photo or to be provided with any information.
Ms D observed the child to be polite and easily engaged. She said that he appeared to be a gentle, intelligent boy and he was articulate and thoughtful during the interview process. He is in Year Six and will attend high school in 2017. He likes science, maths and English and participates in poetry Eisteddfods, because it is good for him. He plays soccer and engages in skateboarding. Ms D assessed the child to be well cared for and she observed warm and relaxed interactions between the child and his mother. She assessed him to have the normal pre-occupations of an 11 year old, friends, his brothers, what he might do when he grows up and sport.
In terms of his maturity, Ms D said that the child would not be able to understand all of the issues relating to his having a relationship or not with his biological father at this time nor how he might feel about that later on. She said that the child is likely to be guided by his mother, being the adult in his life to whom he is closest and on whom he most relies. Ms D opined, however, that this does not mean that his views should not be considered.
Ms D said that the child appears to have a strong relationship with his mother and probably feels protective of her.
Ms D opined that given all of the circumstances, the child’s views ought to be given significant weight.
Ms D was tested in cross-examination in relation to the weight that should be given to the child’s views. There is no doubt that the child lives in an environment that is entirely unsympathetic to the father and to the child having a relationship with him. The first thing to say is that the fact of that environment is no reason to discount or undervalue the child’s views. His views are no less sincere or genuine for that fact.
Next, the child was able to corroborate the mother’s testimony that the father is not denigrated or demonised to the child by the mother or those in her household. The child volunteered to Ms D “No-one mentions him”. The child speculated that his brothers probably would not like the father. In my view, he would not need to speculate if the topic had been discussed in his hearing. The child is aware that his mother is stressed by the parenting proceedings.
B is an intelligent and well cared for, 11 year old boy. He has a strong view against prosecuting a relationship with his father. That view will be given significant weight in my deliberations.
(3)(b) the nature of the relationship of the child with:
(i) each of the child‘s parents; and
(ii) other persons (including any grandparent or other relative of the child);
As earlier referred to, Ms D recorded that the child has a close connection with his mother. He relies on her. They engage well. The boy is doing well. Given the mother’s presentation and the extent to which she appeared to be destabilised by her recollections and interpretation of her contact with the father, not to mention disputation with the father about the parenting arrangements for the child spanning more than 10 years, in my opinion it is remarkable that the child presents as well as he does and that the mother has been able to work in a professional capacity and parent her three sons.
B does not have a relationship with the father, beyond their genetic link.
(3)(c) the willingness and ability of each of the child‘s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
It is the mother’s contention that the child was conceived during a sexual assault on her by the father. She told Ms D that the father “..is ‘corrupt’, a ‘liar’ and ‘sexual predator’ who ‘stalked, raped and drugged [her]’”. Ms D described the mother as “scathing” about the father’s alleged behaviour and recorded that the mother said she would be concerned for the child’s safety if he were to spend time with the father. The mother told Ms D that although she will let the child see his father later, she is “relieved” that he is “not interested” currently. Ms D said that given the mother’s consistent and absolute antipathy with regard to the child having a relationship with the father, it is difficult to see how forcing the child to meet the father would be a positive experience for him. Ms D opined that the child “does not appear to have the emotional space in his life at the present time for the enormous impact an introduction to him would create”. Ms D described this impact as wholly negative, given the mother’s views.
In my view the mother misled Ms D to some extent. I doubt that she would ever be sanguine about letting the child see his father. Further, given that she says she is worried about the child’s safety if he comes into contact with the father, it makes no sense that the mother would be interested in the child’s wishes on the topic. Perhaps the mother does not contemplate that the child will change his views for many years or at all.
In my view the mother is unwilling and unable to facilitate and encourage, a close and continuing relationship between the child and the father.
The father is untested to some extent in this area but he expresses a poor opinion of the mother. He says that he is concerned about the behaviour and parenting capacities of the mother and Mr H. He expresses concern about their drug history and about their capacity to properly provide for the child. As is referred to above, it is striking that despite his concerns about the mother’s parenting capacity and his grievances in relation to the mother’s consistent allegations against him, he says it would be unfair to take the child from the mother’s care. He strongly resents the mother’s allegations against him and in my view is keen to have those allegations withdrawn or formally debunked. As I have observed earlier in these reasons, if he feels that it would be unfair to remove the child from the mother’s care, that suggests that his concerns about her parenting capacity are exaggerated.
Given the orders he seeks, of the parents, the father is the only possible candidate for facilitating and encouraging a close and continuing relationship between the child and his other parent. That said, the impression given by the father’s testimony and his presentation is that he is strongly antipathetic to the mother. That must make it difficult for him to promote the mother to the child and to support and facilitate their relationship.
(3)(d) the likely effect of any changes in the child‘s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is an important consideration. What will be the impact for the child of the orders proposed by the father? the child will be required to become acquainted with his father and spend significant time with him. That will horrify the mother and will be against the boy’s own strong wishes. Of course it is not possible to say with certainty what the outcome will be.
For her part, albeit without any sign of confidence or positive anticipation, the mother says that she will comply with court orders. She anticipates that in order to manage a process of putting father and son together, she will need support from a mental health professional. Given her reaction when Ms N told the child about his father, she is probably correct in that regard. She currently sees a psychologist every three weeks. I take it then that she feels that she will need additional or more intensive support to deal with orders of the type proposed by the father.
The father’s view is that once the process starts the boy will come around. It follows from his evidence that he feels that the mother has invented or otherwise falsified her allegations against him, including but not limited to her allegations of two incidents of him drugging and assaulting her.
The bare facts are worrying. The mother appears to be quite destabilised by the father and her history with him. It is remarkable that the child is doing as well as he is. It has been found and on occasions accepted by the father, over the course of more than 10 years of serial litigation, not to be in the child’s interests to put orders in place of the nature proposed by the father. The child is now 11 years of age and able to add his voice to the decision making process. The mother remains steadfastly against contact and a meaningful interaction between father and son. There is no relationship to build on. Even without any evidence of overt denigration, the environment of the child’s only household is utterly unsympathetic to the proposed changes.
The mother was not significantly challenged about her evidence that the child was adversely affected by first learning at nine years of age, that Mr H was not his father and that someone called Mr Slovsky, who he had never met, is his father.
I am concerned that the child would be adversely affected in those circumstances by a forced introduction to the father and the consequential orders for time and communication proposed by the father.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child‘s right to maintain personal relations and direct contact with both parents on a regular basis;
I gather that the father lives in Sydney and the mother and the child in the south-east coast area but the main practical difficulties are those that have been identified elsewhere in these reasons.
(3)(f) the capacity of:
(i) each of the child‘s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has demonstrated a capacity to support the child and he is doing well. That must reflect credit on her. The mother contends that the relationship between Mr H and the child became closer after the child was told about the identity of his father in 2013. That seems counter-intuitive but there it is. Mr H did not give evidence in the proceedings and he was not interviewed by the expert. He has been a variable influence in the mother’s life. She said that he manages the household chores while she is engaged in her profession or tied up with these proceedings and that something to the effect that he is her “rock”.
The mother said something in cross-examination critical of Mr F’s father and Mr H. It was something to the effect that she has supported the relationships between her older sons and their fathers, despite each of the fathers having “issues”. I understood her to be trying to rebut the suggestion that she has mounted a campaign against the applicant simply because he is the father of one of her children.
The father was charged with Contravene Apprehended Violence Order on 31 August 2004 and 4 December 2004 in relation to the AVO in place at that time against him for the protection of the mother[4]. Otherwise the mother’s many allegations against the father have not resulted in findings against him. The father has repeatedly pursued proceedings in relation to the child over most of the boy’s life. I have no reason to assume that the father has pursued those proceedings for any reason other than the obvious one – that he dearly wishes to create and develop a loving relationship with his son. However positive are his intentions, the father has not been in a position to contribute to the child. Through a complete lack of opportunity the father has no track record of parenting in respect of the child or, for that matter, of any child. That said, in his 2011 affidavit, the father’s friend Mr C is very complimentary about the father’s positive interaction with his nephews and other young relatives.
[4] Exhibit 4
In March 2011 the father was referred by a Dr O to a psychologist for the treatment of depression, stress, anxiety, panic attacks and gambling.[5]
[5] Exhibit 5
Although scathing about the father now, and despite asserting that she wanted the father out of her life, at times the mother relied on the father in relation to her children. The father was the nominated emergency contact when Mr G hurt himself at school and the mother was at work and unavailable. A certificate dated 31 March 2006 was tendered into evidence recording that the father had facilitated Mr G’s attendance for that injury on a Dr O on 9 and 10 August 2004[6]. The fact that the mother turned to the father on occasions in that way and her statements to hospital staff, belie her assertion that their relationship was limited to that of professional and client.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child‘s parents, and any other characteristics of the child that the court thinks are relevant;
[6] Exhibit 1
The father is of European background. He lives with his elderly mother in Suburb P. The father says that he would like to introduce the child to his family’s history, food, customs and teachings and for the child to have a relationship with his mother. Mr H has a background in another part of Europe. The mother sought unsuccessfully to address this issue by reference to exposure or potential exposure the child has to another culture. That said there is no detail about the nature or import of the cultural experiences the father has in mind for the child nor about his own knowledge about and interest in those matters.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child‘s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child‘s parents;
There is material in the documents produced on subpoena by the Department of Family and Community Services (“the Department”) critical of the mother’s care for the child, particularly relating to her drug use and the nature of her relationship with Mr H. That evidence was as follows[7]:
·In notes from 4 April 2005, shortly after the child’s birth, a social worker at the Q Hospital recorded that there was an incident where another patient on the ward complained that the mother’s partner (presumably Mr H at that time) had been trying to sell drugs.
·On 1 July 2005 the reporter attended the mother’s home in relation to a domestic incident. The mother told the reporter that she and Mr H had administered heroin earlier that day. The reporter noted that the mother and Mr H appeared to be affected by drugs. It was also noted that the children appeared to be clean and well cared for and were in good health and condition.
·On 6 July 2005 a worker from the Department noted a record of attempts at contacting the mother. The worker spoke to staff at the Q Hospital and was informed that “[B] went into special care nursery when born – he was withdrawing but not too much...”
·The notes from 21 December 2005 record that the father had attended a police station to report that he had observed the mother to be under the influence of heroin. The Department worker noted that “while this report may be malicious due to current [Family Court] proceedings there remains concerns for the safety and wellbeing of the children given the mother’s history of drug use ...”
·The notes from the Department on 5 March 2009 record that attempts to contact the mother over the phone and by way of mail were unsuccessful.
·On 4 February 2010 the Department was contacted by a reporter at the child’s school. The reporter was told by the child that “when he visits dad there are lots of drugs and needles around on the floor ... The child said that this is a family secret and he was told by mum not to tell anyone.” I note that the reference here to the child’s father is presumably a reference to Mr H.
[7] Exhibit 6
Much of this is historical, and it appears that for the last few years the mother has been doing well. Mr H has been medicated with Subutex since 2007. The mother said that Subutex is a maintenance medication that he will be on “for life”. The mother deposed that he relapsed in 2010 and she called the police, and Mr H saw his doctor who increased his medication. She said he has not relapsed since then.
In summary, the mother has apparently done a good job with the child and it is probably only in relation to exposing the child to Mr H’s drug use and opposing the child’s relationship with his father that the mother has been unable and unwilling to support the child. On any view, the latter has been a deliberate choice by the mother and not a matter of oversight.
There is scant evidence in relation to the father. I have referred to the assistance the father provided when Mr G was injured at school. The father has had no opportunity to parent the child. The father provided some financial support to the mother in the past. There is no evidence about any financial contribution he may have provided or offered towards the child’s support. The father said that he completed parenting courses to ready himself for spending time with the child. Exhibit 3 comprised of a certificate of the father’s attendance at a parenting course in November 2007. That exhibit also included a document suggesting that the father had booked into another course for September 2006 but did not include evidence of his completion of that course. The father read some parts of a book on parenting.
(3)(j) any family violence involving the child or a member of the child‘s family;
I have referred to the allegations of sexual assault made by the mother against the father and denied by him.
It is the mother’s evidence that the father in effect, stalked her. As to the mother’s denial of the parents ever having been in a relationship with him, the NSW Police records from 22 September 2009 when the mother reported the alleged sexual assault, note that “at this stage Police believe the report to be doubtful. Due to the VIC’s drug history and also the numerous events on the COPS in relation to domestics between the VIC and the POI, it indicates the parties were in fact involved in a sexual relationship for some time”.
Further material from the NSW Police and the Department refers to the mother’s representations to officials:
·Notes by a social worker at the Q Hospital from 28 January 2005 record that the mother was “involved with two men” and “doesn’t know which is the father”. I note that this was some months before the child was born. If that report is accurate, it could be interpreted as contradicting the mother’s evidence that the parents did not willingly engage in a sexual relationship.
·Notes by a social worker at the Q Hospital from 24 March 2005 record that the mother was concerned about the paternity of her unborn child. The mother was informed by the social worker that a test can be requested post-delivery.
·In notes from 22 May 2005 a social worker at the Q Hospital records the mother’s account of her relationship with Mr H. The mother said that after taking out an AVO against Mr H, she “got involved with a gambler who became abusive towards and she had to take out an AVO against him”. This is presumably referring to the father in these proceedings. The notes explain that after that, she resumed her relationship with Mr H before taking out an AVO against him.
·The Department’s notes from a home visit on 26 July 2005 record that the Department was investigating reports related to domestic violence and drug abuse. In relation to the mother’s relationship with the father, the records note that the mother said “[Mr Slovsky] was a nice friend at first. He was ringing me up saying he has [investments] to show me. He was driving me all over the place. He took me out to dinner and we did some things. Later he was telling everyone we were married. He told the neighbours around here that.” She said that Mr H came back into her life at a time when she “had [Mr Slovsky] stalking me”.
·The police notes from 8 September 2005 record an incident where the mother made a complaint to the police about the father allegedly having left an inappropriate voice message on her phone. The police noted that “given the victim’s record of numerous unsubstantiated allegations against the POI and lack of supporting evidence of the allegation, discussions with Suburb P DVLO have recommended no further action taken”.
·The Department’s notes from 4 November 2005 in the context of a Secondary Assessment record that the mother explained to the worker that the reason Mr H came back into her life was because the father was stalking her, stealing from her and cashing her cheques. It notes that “she did have some relationship with him”.
The mother sought protection against the father and against Mr H at various times. I understood the mother to say that although there was reference to violence in her complaints against Mr H, her concern related in fact to his involvement with illicit drugs. That conflicts with much of the subpoenaed material from the NSW Police and the Department tendered into evidence including the following:[8]
·On 2 March 2005 a social worker at the Q Hospital recorded that the mother appeared “motivated to pursue AVO against partner” (Mr H).
·The notes from 4 November 2005 in the context of a Secondary Assessment Stage 2 record that the children are exposed to arguments between the mother and Mr H. It says that Mr H comes to the house wanting the mother to use drugs with him. It records that the children were exposed to the effects of drug abuse.
·On 9 July 2006 the police attended the mother’s home at her request when Mr H would not leave. She told police that he had punched her on the cheek and snapped her phone in half when she tried to call the police. The records note that her son was present, and that Mr H was to be arrested and charged. There is a document within exhibit 6 which appears to be a report to the Department in relation to the same incident. Those notes record that Mr G witnessed the incident and the child and Mr F were in another room. The reporter noted that the home was clean and in good condition, and that the children appeared healthy.
·On 16 March 2007 Mr H was sentenced to four months’ imprisonment for offences including Common Assault and Contravene AVO. The charge date for those offences was 13 July 2006.
·On 20 April 2011 an incident occurred whereby the mother asked Mr H to leave her home as he was angry and arguing with her. Mr H stood over her and yelled aggressively. He picked up her laptop computer, threw it on the ground, stomped on it and destroyed it. Mr H grabbed the mother by the back of her hair and slapped her on the face. He was arrested but ultimately not prosecuted due to a lack of corroborating evidence.
[8] Exhibit 4 – NSW Police subpoena, Exhibit 6 – Family and Community Services subpoena.
Therefore there was physical violence inflicted on the mother by Mr H.
(3)(k) any family violence order that applies to the child or a member of the child‘s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There are no current family violence orders.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Given the history of proceedings, if the father’s Application is dismissed, that may be less likely to lead to further proceedings than if he is now introduced into the child’s life. In the first event, there would be no orders to implement or enforce and absent a significant change of the child’s circumstances, there would seem little scope thereafter for a fifth application by the father.
On the other hand in the event that the father was in some way successful, one could anticipate that there may be problems in implementing any orders. The orders would need to be implemented in the face of strong opposition from the child and from his primary carer. Successful implementation of parenting orders usually requires a minimum level of commitment from the child and / or from the other parent. Orders that require weekly cooperation and the passage of the child between households would present many opportunities for a breakdown in the regime or arrangements.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
Discussion
In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him unless there are reasonable grounds to believe that the father, the mother or a person who lives with a parent of the child, has abused him or engaged in family violence. Mr H lived and lives with the mother and he was convicted of assaulting her. Therefore the presumption does not apply.
In any event, neither of the parents seeks an order for equal shared parental responsibility, indeed, they join in seeking an order that the mother have sole parental responsibility. That is also the position of the ICL. The parents have a poisonous relationship and they have no communication. As a practical matter it is not feasible to impose on a party an onerous role not sought by that party.
It is logical that the parent with whom the child mostly lives should have parental responsibility.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply. The proper order is one that places parental responsibility solely with the mother and I will make that order.
Living Arrangements
In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangements.
The issue is to whether the child should be introduced to his father and spend time with him. In summary, the key matters from the s 60CC considerations going to those questions are:
·There is currently no meaningful relationship between the child and his father, beyond the fact that they are father and son. That said, given the priority accorded to the child’s rights in respect of his parents, if it is otherwise beneficial, orders made in these proceedings should promote their relationship.
·B is an intelligent and well cared for, 11 year old boy. He has a strong view against prosecuting a relationship with his father. That view should be given significant weight.
·As earlier referred to, Ms D recorded that the child has a close connection with his mother. He relies on her. They engage well. The boy is doing well. Given the mother’s presentation and the extent to which she appeared to be destabilised by her recollections and interpretation of her contact with the father, not to mention disputation with the father about the parenting arrangements for the child spanning more than 10 years, in my opinion it is remarkable that the child presents as well as he does;
·In my view the mother is unwilling and unable to facilitate and encourage, a close and continuing relationship between the child and the father. The father is untested to some extent in this area but he expresses a poor opinion of the mother. The impression given by the father’s testimony and his presentation is that he is strongly antipathetic to the mother. That must make it difficult for him to promote the mother to the child and to support and facilitate their relationship. I am concerned that the child would be adversely affected in those circumstances by a forced introduction to the father and the consequential orders for time and communication proposed by the father.
·The mother has demonstrated a capacity to support the child and he is doing well. That must reflect credit on the mother.
·However positive are his intentions, the father has not been in a position to contribute to the child. Through a complete lack of opportunity the father has no track record of parenting in respect of the child or of any child. In his 2011 affidavit, the father’s friend Mr C is very complimentary about the father’s positive interaction with his nephews and other young relatives.
·The mother has apparently done a good job with the child and it is probably only in relation to exposing the child to Mr H’s drug use and facilitating the child’s relationship with his father, that the mother has been unable and unwilling to support the child. On any view, the latter has been a deliberate choice by the mother and not a matter of oversight.
·There is scant evidence in relation to the father’s demonstrated attitude to the child or the responsibilities of parenthood. I have referred to the assistance the father provided when Mr G was injured at school. The father has had no opportunity to parent the child. The father provided some financial support to the mother in the past. There is no evidence about any financial contribution he may have provided or offered towards the child’s support. The father completed parenting courses.
·There is no credible evidence of family violence by the father against the mother. Mr H was violent to the mother.
·In the event that orders were made along the lines of those proposed by the father, one could anticipate problems in implementing those orders. The orders would need to be implemented in the face of strong opposition from the child and from his primary carer. Successful implementation of parenting orders usually requires a minimum level of commitment from the child and or from the other parent.
The ICL does not support the orders proposed by the father. The weight of the report of the single expert is against an introduction and the ordering of time spent between the child and the father.
The above factors support no order for the child to be introduced to the father nor to spend time with him.
The provision of information about the father to the child
The orders sought by the ICL included an order that the ICL meet with the child to provide him with his father’s full name, date of birth and current address. The issue was not addressed in the orders formally sought by the mother but her counsel indicated that on this issue, the father’s details should be kept by the mother’s solicitor or by the ICL in order that, if the child expressed a wish to do so in the future, he could access that information and himself make contact with the father.
It is likely that at some stage the child will be curious about his father. Aside from the wonderful benefits of a close parent - child relationship, there are practical benefits in a child having information about both parents, for example for the purposes of having a family history for health treatment. As an adult, it will be a matter for the child as to whether and how he manages his relationship with his father. In my view he needs to have access to information enabling him to communicate with his father, should he so wish. Given the problems associated with Ms N telling the child about his father, I am concerned about him being told about his father now, when he does not want that information.
Requiring a solicitor to hold the father’s details seems unnecessarily complicated and may not guarantee that the child will have access to the information when he needs it. The better course in my view is that when the ICL explains the outcome of the proceedings to the child, she provide him with a sealed envelope containing the father’s full name, date of birth, occupation and current address. With that information I am confident that the child would be able to contact his father in the future should he so wish. In that way, the child will have the choice as to whether and when he accesses that information about his father.
Child’s Name
The minute of orders attached to the father’s case outline included an order to change the child’s surname. The father sought:
12.That the Child’s name shall be ‘[B-Slovsky]’ and that the New South Wales Registrar or Births, Deaths and Marriages shall be informed accordingly within 7 days of the making of these orders, and shall be requested to amend all relevant records pertaining to the Child accordingly.
13.That the mother shall within 7 days of the making of these orders cause all relevant records pertaining to the Child, such as medical, school and anything else, to be amended so as to indicate the child’s true name.
Those orders were not addressed in the course of the submissions made at the end of the trial on behalf of the father nor, for that matter, on behalf of anyone else. I take that those orders are not pressed. For the avoidance of doubt, in the context of the other orders foreshadowed above, it would not be appropriate to change the boy’s name. For 11 years the child has been known by his mother’s surname. For the reasons given above it is not proposed to introduce the child to his father or to implement or attempt to implement an arrangement whereby the child spends time with his father. In those circumstances it would be confusing and potentially harmful to change the child’s name.
The orders foreshadowed above allow the child the option of finding out his father’s surname. To change the child’s name to Gastin-Slovsky would pre-empt that option.
Conclusion
The father sought to be introduced to his 11 year old son and to spend time with him. Those orders were strongly opposed by the mother and both by the boy and by his independent lawyer.
The orders made will provide for the child to have the ability to access information about his father but for no communication to be initiated by the father with him and for no time to be spent between them.
Leave will be granted to the parties to bring the matter back within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 November 2016.
Associate:
Date: 15 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Standing
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Jurisdiction
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