Snell and Bulow

[2019] FamCA 294

FAMILY COURT OF AUSTRALIA

SNELL & BULOW [2019] FamCA 294

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental responsibility – Where the mother has disengaged from the proceedings –Where the child has been exposed to family violence – Where the mother has perpetrated family violence – Where the child has expressed the view that he wishes to spend no time with the mother.

Family Law Act 1975 (Cth) ss 60B, 61C, 65DAC

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT: Mr Snell

RESPONDENT: Ms Bulow

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: PAC 6198 of 2014

DATE DELIVERED: 9 May 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 April 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Duffy Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

Orders

1. That the father shall have sole parental responsibility for the child born … 2008 (“the child”).

2. That the child shall live with the father.

3. That the child shall spend time with the mother as agreed between the parties from time to time.

4. That the father shall inform the mother of any medical emergency involving the child via email as soon as practicable.

5. That the parties are restrained from denigrating the other party in the presence or hearing of the child and shall ensure no third party denigrates the other party in the hearing of the child.

6. That the parties are restrained from discussing these proceedings or any allegations made in these proceedings in the presence or hearing of the child and shall ensure no third party discusses these proceedings or any allegations made in these proceedings in the presence or hearing of the child.

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 Snell & Bulow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6198 of 2014

Mr Snell

Applicant

And

Ms Bulow

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements for (“the child”). He is the only child of the parents Mr Snell (“the father”) and Ms Bulow (“the mother”).

2. The parties commenced a relationship in 2006 and were married in 2011. They separated in 2014 and their divorce was finalised in 2015.

3. The mother had previously initiated parenting proceedings in April 2015 and these proceedings were resolved on 23 May 2017 with final orders being made with the consent of the parties. These orders provided for the child to spend equal time with both parents in a “week about” arrangement with the parties sharing parental responsibility for him.

4. Approximately five months after the final orders were made the child made serious complaints that the mother had physically and sexually abused him. This prompted the father to file an application seeking to revisit the parenting arrangement. Pursuant to his new application the father sought orders that he have sole parental responsibility for the child, the child live with him and spend supervised time with the mother for two hours each fortnight at a contact service. In a Minute of Order tendered on the day of the hearing, the father continues to seek sole parental responsibility and that the child to live with him but now proposes that the mother’s time with the child be as agreed between the parties. 

5. The Independent Children’s Lawyer (“ICL”) appointed in the proceedings supports the father’s position.

6. When she filed a Response the mother sought sole parental responsibility for the child and orders that the child live with her and spend supervised time with the father. However the mother ceased engaging in the proceedings after an order was made (with consent of the parties) for the appointment of an expert in the proceedings.

The mother’s non-attendance

1. The mother was represented in the proceedings until 5 February 2019 when her solicitor filed a Notice of Ceasing to Act.

2. On 14 February 2019, the mother failed to attend her interview with the expert appointed in the proceedings.

3. On 20 March 2019 the mother did not attend a case management court event. On this occasion trial directions were made and the matter was listed for hearing on 16 April 2019. It was noted that given the mother’s lack of participation in the proceedings it was anticipated that the matter would proceed on an undefended basis.

4. The mother did not file any material in accordance with the trial directions and on 16 April 2019, she failed to attend the hearing. The father who had put the mother on notice about the final hearing sought that the Court proceed to deal with the matter to finality in her absence.

5. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

   (1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

6. Rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

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

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

7. In light of the matter proceeding on an undefended basis, any evidence previously filed by the mother is not read.

Background

1. The father who is 32 and the mother who is 37 commenced their relationship in 2006 and separated on a final basis in 2014. The child was born in 2008 and is currently 10 years old.

2. The mother originally commenced proceedings in relation to the child in April 2015 seeking orders that she have sole parental responsibility for the child, that the child live with her and spend time with the father each alternative weekend from 3.00pm Friday to 9.00am Monday supervised by the paternal grandparents.

3. The court made orders with the consent of the parties in relation to this application on 23 May 2017 providing that the parties share parental responsibility for the child and the child live with the parties in a “week about” equal time arrangement with changeovers to occur at the child’s school where possible to minimise the potential for the child to be exposed to conflict between the parties.

4. After these orders were made, the father was notified by the child’s school that during the weeks the child was spending with the mother he was more unsettled at school and his behaviour was better during the weeks he was in the father’s care. School records indicate that there were a number of occasions in June2017 where the child was disrespectful to teachers and violent towards other students.

5. When the father asked the child about the living arrangement in the mother’s household the child disclosed that his mother’s “fiancé” was also living at the home and the child was sleeping on a mattress on the floor in his half-sister’s room.

6. At the time the final parenting orders were made, the mother had denied that she was in a new relationship when the father inquired into whether this was the case.

7. The child also disclosed to the father that mother had verbally abused him when she had been drinking alcohol and had been making offensive comments about the father and his new partner. This resulted in the child requesting to live with the father permanently.

8. There was an incident on 2 October 2017 shortly following a changeover between the parties in which the child told his mother that he no longer wished to live with her. The child who was hysterical called his father and asked to be picked up, and the mother was heard to interrupt the call and assert that the child could go live with the father. The parties arranged for the child to be returned to the father at the usual changeover location. When the father arrived at the changeover location, he saw the child outside the mother’s car holding his school bag, a plastic bag filled with clothes and an animal carrier with his pet cat inside. The father then saw the mother get back into the car and leave without saying goodbye to the child. The child subsequently told the father that he no longer wished to live with his mother.

9. The child stayed with the father for three weeks following this incident during which time the father noticed the child to be more settled. When asked by the father about seeing his mother, the child indicated that he was unwilling to communicate or spend time with her.

10. The father received an email on 4 October 2017 from the mother in which she alleged that the child had previously passed on offensive comments made by the father about her that she says was detrimental to the child’s mental health.

11. On 16 October 2017 the father was contacted by the child’s school principal as the mother had attended the school and attempted to sign the child out early. The father informed the principal that the mother was acting in accordance with the orders as it was the mother’s time with the child. The father received a call from the school around an hour later and was asked to attend the school immediately. When he arrived he was informed that the mother and child had argued and the child refused to go home with the mother. The child and father subsequently left together.

12. On the 18 October 2017 and on another occasion around a week later the child made comments to the father that indicated he was contemplating suicide. The father subsequently arranged for the child to speak to a psychologist.

13. The child was suspended from school in October 2017 due to violent and disruptive behaviour.  The mother was called to collect the child from school and the child went with her. During the time the child was in the mother’s care the father received a number of calls from the mother complaining that the child was acting in an erratic manner and asking the father to speak to the child to try and calm him.

14. On 26 October 2017, the child disclosed to the father that following an argument with the mother sometime between the 4 September 2017 and 11 September 2017, the mother had punched him in the stomach with a closed fist. The following day, a family member who happened to be a police officer took the child to the police station to report this incident. The mother was contacted regarding this allegation and attended the police station the next day. Upon attending the police station the mother was placed under arrest and interviewed regarding the allegations. The mother denied all allegations made by the child. 

15. The child attended appointments with the psychologist on 27 October 2017 and 1 November 2017. At the second appointment, the child disclosed to the psychologist that the mother had hurt him with a closed first and that she had touched him inappropriately in “private areas”. As a mandatory reporter, the psychologist reported this disclosure to the Department of Family and Community Services (“Community Services”). A detective from a local Police Child Abuse Division contacted the father two days later wanting to speak to the child about the sexual abuse allegation following the report by the child’s psychologist and the Joint Investigative Response Team (“JIRT”)[1] later conducted a home visit to speak to the child.

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

16. On 28 October 2017, an Apprehended Domestic Violence Order (“ADVO”) was issued by police for the protection of the child against the mother.

17. There are a number of documented incidents throughout October 2017 where the child is noted to have been violent towards other students and teachers at school. An incident also occurred in November2017 where the father received a call from the school principal who said that the school had gone into lockdown because the child had been “trying to escape by digging under the school fence.” The principal described how the child had been physically restrained by a school teacher, but after wriggling and escaping his grasp, found a plastic baseball bat and hit the teacher with it. This resulted in another suspension of the child.

18. On 17 November 2017, the father initiated proceedings in the Federal Circuit Court seeking sole parental responsibility for the child, that the child live with him and spend supervised time with the mother for two hours per week at a supervision centre.

19. On 23 November 2017, the parties were ordered to attend a Child Dispute Conference, an ICL was appointed and the orders of the 23 May 2017 were suspended. In lieu orders were made that the child live with the father and spend supervised time with the mother through a contact centre or private supervision service.

The Child Dispute Conference

1. In the Child Dispute Conference the father raised significant concerns about the mother’s mental health, her use of alcohol and sedatives.  The father alleged that the mother is an alcoholic who becomes aggressive when intoxicated. He also held the concern that that the mother abuses prescription drugs.

2. The mother indicated that she has depression and anxiety but that she is not currently receiving therapy or taking any medication. She said that she previously had abused alcohol but now only consumes one or two glasses of wine a couple of nights per week. The mother said she had stopped drinking when the child was in her care as the child had commented on her alcohol consumption.

3. The family consultant formed the view that given the history of conflict within the family and the relatively short amount of time that it took for the agreed equal time arrangement to break down, equal time was contraindicated in the proceedings.

4. In December 2017, the child changed schools and has remained at the new school since.

5. On 12 December 2017, the child attended an assessment with the Infant, Child and Adolescent Mental Health Service following a referral from the child’s psychologist.  

6. On 20 December 2017, the mother filed a Response seeking final orders that she have sole parental responsibility for the child, the child live with her and spend four hours a fortnight with the father at a supervision centre. On an interim basis she sought orders in very similar terms.

7. On 21 December 2017, further interim orders were made with the consent of the father that the child’s time with the mother occur at a contact centre for two hours each alternate Saturday and until the contact centre became available at a shopping centre supervised by a maternal aunt.

8. On 26 December 2017, the father took the child to spend time with the mother but the child refused to get out of the car. The mother approached the father’s car to try and grab the child while the child hysterically tried to escape her grasp. The mother eventually left and has not spent time with the child since this incident.

9. On 25 January 2018 the child met with the ICL appointed in the proceedings and expressed the view that he did not wish to spend time with the mother.

10. On 23 March 2018, the proceeding were transferred from the Federal Circuit Court to this court given the allegations of sexual abuse of the child.

11. In accordance with previous orders made, the father registered with a children’s contact service to arrange for supervised time with the mother to occur. Although an intake assessment was due to occur in April 2018, it appears that the supervised time at the centre has not ever taken place.

12. On 6 April 2018, the proceedings were allocated into the Magellan Protocol[2] and Community Services was requested to prepare a Magellan report. The report was prepared and released to the parties on 24 May 2018.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

13. On 18 June 2018, with the consent of the parties, an expert was appointed to prepare a report which considered the allegations of sexual abuse and other matters relating to the welfare of the child. The report was subsequently released to the parties on 26 February 2019.

14. On 20 March 2019, the matter was listed for a hearing and an order was made that pending further order the father was to have sole parental responsibility and the child live with him.

15. There was a brief final hearing undefended as against the mother on 16 April 2019 and on that date judgment was reserved.

The Expert Report

1. On 14 February 2019, the father and child attended upon an expert for the purposes of an assessment. In his report the expert opined that on meeting with the child, it became clear that it would not be appropriate for the child to be seen with the mother and the expert made no arrangement for that to occur. The mother failed to attend her interview and made no effort to contact the expert or the ICL to explain her reasons for not attending.

2. The expert commented that the child was reluctant to talk about his mother and when asked to describe his mother said she was “mean”. The child told the expert that he really disliked the mother because “she had hit me.” The child described his mother as a rude person who yelled and swore at him and never cared about him. He told the expert that he was scared of the mother and feared that she would try and hit him again even if it was in a supervised environment.

3. When the expert enquired into the alleged sexual assault, the child recalled no information about this incident and told the expert that he had never told anyone that he had been sexually abused by the mother.

4. The expert formed the view that significant contact between the child and mother would be damaging for two reasons:

   The first is I believe his mother has genuinely been abusive to [the child] and hence placing him in contact with his mother will lead [the child] to believe the system cannot protect him and will further exacerbate the defiance and oppositional aspects of his behaviour. Secondly at a psychological level his mother has abused [the child] and retriggering of that would lead to ongoing psychological perturbation and would undo whatever positive effects from the current settling of his situation and therapy with [his psychologist].

5. The expert opined that the only situation that could currently meet the child’s needs would be the maintenance of the status quo. To that end the expert recommended that child should remain living with his father and have minimal contact with his mother.

6. The expert appointed in the proceedings is a clinical psychologist with a Masters degree in Clinical Psychology and a Ph. D in research on personality. The expert has extensive experience working in psychology with children and in the Family Court system. In light of the expert’s experience and expertise, and given the expert evidence is unchallenged in these proceedings, I see no reason not to accept the evidence. I attach significant weight to the opinions and findings expressed by the expert.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

1. The objects are to ensure that the best interests of child 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).

3. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

2. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. 

   [3] (2009) FLC 93-405; [2009] FamCAFC 92

   [4] (2007) Fam LR 518

   [5] [2006] FamCA 994

4. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

5. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

6. The expression has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. The Full Court in McCall & Clark (supra) said at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

7. The orders proposed by the father and supported by the ICL provide for the father to have sole parental responsibility for the child and the child to live with him. He proposes no order as to the child’s time with the mother so there is no clear provision for the child to have a relationship with the mother.

8. Although I cannot positively find that there will be no benefit to the child in having a relationship with the mother, it can be taken from her behaviour in effectively abandoning the child and her subsequent disengagement from the proceedings that she now concedes that there will be no positive benefit to the child in having a meaningful relationship with her.

9. It is apparent that the child has historically been exposed to family violence during the parties’ relationship and following their separation when they were facilitating a shared care arrangement. The father describes his relationship with the mother as violent and volatile albeit conceding that the violence was mutual. The father recognises that exposing the child to their volatility would have been traumatic for the child. The expert formed the view that it is likely the child would have been exposed to psychological harm from the inability of both parents to co-parent without conflict.

10. The father’s admission to perpetrating violence himself in the past and failure to protect the child from the impacts of the parties’ mutual violence does raise questions about the ongoing risk to the child of exposure to family violence.

11. The father admits that his use of steroids during the parties’ relationship impacted on his emotional control and was a factor which perpetuated his violence in the relationship.

12. The expert also opines that the father, while historically having difficulties managing alcohol use and maintaining a capacity for control of his temper during the parties’ relationship, does not meet the criteria currently for any psychological disturbance. The expert is of the view that the father is at the present more stable than he has been in the past and has the child’s best interests at heart.

13. In these circumstances I am of the view that although some risk of harm on this basis is present, I do not assess that risk as unacceptable if orders were made as sought by the father.

14. Of greater concern in these proceedings is the risk of harm posed by the mother to the child. I attach significant weight to the expert’s opinion that there is no doubt the child has been subjected to and exposed to physical and psychological harm at the hands of the mother arising from neglect and physical abuse.

15. It appears that the mother’s neglectful conduct and abuse towards the child arises as a result of her alcohol misuse and mental health difficulties.  The mother has a long history of psychological difficulties and the expert opines that her behaviour suggests she has “quite significantly disturbed personality traits with either a borderline or dependent elements to her behaviour, as well as at least times intermittent mood disturbance.”

16. I am also satisfied that the mother has physically abused the child.  As discussed these renewed parenting proceedings came about as a result of the child’s allegation that his mother had punched him in the stomach which resulted in an ADVO being issued for the child’s protection. The mother who was initially engaged with the proceedings and must have been aware of the allegations does not challenge these allegations through filing an affidavit or participating in the hearing. In relation to this issue the expert opined:

    …there appears to be strong reasons to believe the mother was physically abusive to [the child] in the context of the mother not being able to manage her own feelings and sense of rejection when [the child] indicated he wanted to spend time with his father…

17. The expert concluded that significant contact between the child and the mother would be damaging to the child as it would exacerbate his behavioural problems and retrigger abuse suffered, underdoing whatever positive benefit the child has attained from therapy with his psychologist.

18. For the reasons given I attach significant weight to the opinion of the expert.

19. Bearing in mind the interplay of the two primary considerations, I am of the view that the risk that the child may be exposed to neglect or abuse outweighs the benefit of the child having a relationship with the mother especially where she does not propose orders that foster that relationship while protecting the child from the harms associated with the unacceptable risks that she poses.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. The child, currently aged 10, was very firm in his view to the expert that he did not want to see his mother. The child said he was scared of his mother and feared that she would try and hit him again, even if he spent time with her in a supervised environment.

2. The child described how he felt that the mother never cared about him and described her requirement that he sleep on a mattress on the floor while his sister slept in a bed as an example of her lack of care.

3. The child described his father as “nice and caring” to the expert.

4. Although the child is young his subjective experience of the impacts of the mother’s abuse and neglect must attract some weight in determination of this dispute.

Nature of the child’s relationship with each parent and other significant persons

1. It appears that the child and father have a close and involved relationship. During observation of the father with the child, the expert witnessed the child throw himself into the father’s arms seeking support which the expert attributed to the child not coping very well with the requirement for an observation.

2. The child has a close relationship with the paternal grandparents who he sees twice a week for dinner and when they attend his football game each weekend.

3. The child currently has no relationship with the mother having not spent any time with her since the incident on Boxing Day in 2017.

4. The child has a dim view of the mother’s partner and expressed the opinion that the mother’s neglect towards him compounded when she formed a relationship with the partner.

5. The child expressed a desire to maintain a relationship with his siblings who currently live with the mother. The father has been facilitating visits between the child and the younger of the child’s two older siblings. The child has not seen the oldest sibling as she has aligned herself with the mother.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

1. Since November 2017, the father has been the sole carer of the child.

2. The father had little involvement in the first few years of the child’s life as he was serving a 15 month prison sentence for a drug offence and possession of a loaded firearm. Since that time, the father has been actively involved in long term decision making for the child and currently has had sole parental responsibility under an interim order made in March 2019. Examples of the father’s involvement in long term decision making include making arrangements for the child to see a psychologist following the child threatening suicide and enrolling the child in a new school to address his behavioural issues.

3. The mother has made minimal attempts to spend time with the child. On 21 December 2017, orders were made with the consent of the parties for the child to spend supervised time with the mother for two hours each fortnight at a contact centre. On 21 January 2018 the father registered for an intake assessment for the purpose of supervised visits at which point the mother had not yet registered. Almost a month later the contact centre received the mother’s registration but the mother has not availed herself of supervised time since it has been ordered.

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The mother provides a small amount of financial support for the child through the payment of Child Support. Otherwise the father provides financial support for the child. 

Likely effect of change in the child’s circumstances

Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs

1. The father’s proposal as supported by the ICL would see no change to the child’s current circumstances. The father would continue to exercise sole parental responsibility for the child who will continue to live with him.

2. Although there is no specific order for the child to spend time with the mother, it can be inferred that the father is not opposed to the child doing so as long as the child is appropriately protected from harm and the father assesses that the child will receive a benefit from such contact. The father has previously made attempts to facilitate the child’s relationship with the mother and has complied with orders made regarding this time with the mother. There is no reason to assume that he would not facilitate such time if he believed it were appropriate for that to occur.

3. The child has significant behavioural issues and it can be assumed he has psychological difficulties given that he has expressed suicidal thoughts in the past. Given his age, the child requires a high degree of emotional support. The father has demonstrated a capacity to provide this level of support by arranging for the child to see a psychologist and also attending the school when the child has misbehaved or had difficulties regulating his emotions.

4. The mother’s abandonment of the child on the occasion when the child expressed his desire to live with the father demonstrates her lack of capacity to meet the child’s needs. Without explanation she failed to attend at the arranged appointment with the expert. The expert opined that the documentation provided to him would suggest that the mother is not able to meet the child’s needs, and said “while she may be able to do so from time to time it appears that the consistency with which she approaches parenting and consistency with which she is able to engage in appropriate parenting is poor.”

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. There are some concerning aspects of the father’s previous lifestyle. The expert identified that the father has had problems in managing his alcohol use and controlling his temper in his relationship with the mother. He also admitted to previously using steroids which he conceded exacerbated his issues with emotional regulation and violence. The father also spent a significant period incarcerated for a drug related offence when the child was very young.

2. However in recent times, especially since the first court proceedings were initiated, the father seems to have matured and come to an understanding about the impacts of poor parenting and exposure to violence on the child. The expert opined that the father “is taking responsibility for the fact that in the past he had not been a particularly effective person in his own life.” In the current matter before the court, the father initiated proceedings seeking appropriate orders that reflect his understanding of the child’s needs.

3. There is nothing to indicate that the father has not been an appropriate carer and ably taken on the responsibilities of parenthood.

Family violence relating to the child or a member of the child’s family

1. Family violence is broadly defined. The mother’s physical abuse of the child falls within this definition.

2. The expert opined that the child had clearly been exposed to family violence between the parents and in the mother’s relationships with others in the past and ongoing family violence in the context of contact with his mother.  The expert concluded that “he is clearly a boy who has been traumatised”.

Any other relevant fact or circumstance

1. The mother’s non participation in the proceedings is a determinative factor in these proceedings. By these actions she has effectively abdicated her role as a parent. Fortunately for the child the only other parent is ready, willing and able to take on the role as sole parent to care for the child.

Conclusion

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.

3. In Goode & Goode[6] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [6] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the mother has abused the child.

6. The mother has disengaged from the proceedings and the only proposal before the court is for the father to have sole parental responsibility for the child. In circumstances where through her disengagement the mother indicates that she no longer seeks any role as a parent, I am easily satisfied that it would be in the child’s best interest for the father to have sole parental responsibility for him.

The mother’s time

1. Having regard to the mother’s disengagement in the proceedings, perpetration of family violence, previous abandonment of the child and overall neglect it is not appropriate to make orders for the child to spend time with the mother.

2. The father has demonstrated a capacity to make decisions that are in the best interests of the child and has previously encouraged the child to have a relationship with his mother. In the event the child expresses a desire to redevelop a relationship with his mother, I am confident that the father will facilitate this relationship in circumstances he determines appropriate.

3. Having regard to all of the factors in relation to the best interests of the child I make orders in accordance with those sought by the father and supported by the ICL.

4. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 May 2019.

Legal Associate:

Date:  9 May 2019