TARRANT & MARILLER

[2020] FCCA 679

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARRANT & MARILLER [2020] FCCA 679

Catchwords:
FAMILY LAW – Final Parenting – Assessment of risk posed to child by mother – no order for time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 61DA, 60CG

Cases cited:

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant: MS TARRANT

Respondent: MR MARILLER

File Number: PAC 1511 of 2016

Judgment of: Judge Obradovic

Hearing dates: 28 – 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Parramatta

Delivered on: 27 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Mando

Solicitors for the Applicant: Pinnacle Lawyers

Counsel for the Respondent: Mr Cook

Solicitors for the Respondent: Mahony Family Lawyers

Appearing for the Independent Children's Lawyer: Mr Nasti

Solicitors for the Independent Children's Lawyer: S P Nasti & Co

ORDERS

1. All prior parenting orders with respect to the child X born in 2013 (“X”) are discharged.

2. The father shall have sole parental responsibility for X.

3. X shall live with the father.

4. X shall spend no time with the mother.

5. The father shall do all such things as are necessary to authorise any school X may attend from time to time to provide to the mother a copy of all school reports, school newsletters, school photographs and other information regarding X’s school activities as they become available from time to time and this Order shall act as sufficient authority for that purpose.

6. The mother is at liberty to liaise directly with X’s treating medical practitioners, hospital and/or other health care professionals to obtain any information she requires about the child’s medical history and treatment.

7. The father shall notify the mother as soon as possible of any serious health issue arising for X and for that purpose the parents shall advise and keep the other advised of their respective contact telephone numbers and shall notify the other of any change within 7 days of such change.

8. X born in 2013 is permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to X born in 2013. The father shall be the only person with ‘parental responsibility’ of the child X born in 2013 for the purposes of applying for, and being issued with, an Australian passport for X born in 2013.

9. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the father shall be authorised and entitled to remove X from the Commonwealth of Australia for the purpose of travel at his discretion.

10. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Tarrant & Mariller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1511 of 2016

MS TARRANT

Applicant

And

MR MARILLER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings with respect to one child, namely X born in 2013.

2. The parties to the proceedings are the applicant mother, Ms Tarrant and the respondent father, Mr Mariller.

3. X has been living with the father for most of his young life. The mother has throughout the parties’ relationship and post separation exhibited anti-social and criminal behaviour. She has not been able to comply with orders for supervised time. Consequently, X has had a very limited and difficult relationship with the mother.

4. The primary issues for determination are:

   a)Parental responsibility; and

   b)What time, if any, the child is to spend with the mother.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

The Relevant Facts

1. The mother was born in 1988 and is currently 31 years old.

2. The father was born in 1990 and is currently 30 years old.

3. In 2011, the mother was convicted of common assault and destroy/damage property. She was 23 at the time.

4. The parties met in 2012 and began a romantic relationship. The parties’ only child X was born in 2013. The mother has a second child from a subsequent relationship, Y born in 2017. She was due to give birth to her third child in 2019.

5. The father deposes to acts of violence by the mother in 2013 after X was born and before the parties separated. This included being punched to the chin by the mother, having items thrown around the room by the mother and the mother attempting to hit him whilst the father had the child in a baby harness on his chest.

6. The parties separated in early 2014, although the relationship was on again off again for the remainder of 2014. The father says that during the parties’ relationship, the mother on numerous occasions threatened self-harm. Throughout 2014 the child was cared for by the mother on three to four days per week and by the father for the balance of the time.

7. On or about 28 November 2014, the mother assaulted the father in his home breaking his nose. The child was present during the altercation. The police were called and the mother was charged with assault occasioning actual bodily harm.

8. During her oral evidence, the mother stated that she broke the father’s nose as an act of self-defence. The mother received a good behaviour bond for 18 months as a result of this incident. An Apprehended Domestic Violence Order (“ADVO”) was put in place for the protection of the Father with the mother named as the defendant.

9. X commenced living with the father from early 2015. For approximately the first half of that year, the child was spending time with the mother and when he did so, upon return to the father’s home, X was observed to be hitting the father. From about mid-2015 to the end of 2015, the child did not spend any time with the mother.

10. The mother has not worked since 2015.

11. On 21 October 2015, the mother attended the father’s home and intentionally caused damage to the wrought iron fence as she was leaving.

12. In December 2015 the parents agreed to a parenting plan for X to live with the father and spend supervised time with the mother. This occurred between December 2015 and February 2016.

13. On 21 February 2016, an incident occurred at changeover where the mother was hitting and scratching her sister and was verbally abusive to the paternal grandmother. During the incident, the father pulled the paternal grandmother inside and whilst doing so, the mother kicked the security door jamming the father’s hand. The child was present at the father’s home during this incident. The mother was charged with destroy and damage property, assault occasioning actual bodily harm and the ADVO was extended to protect the paternal grandmother. The mother was also subsequently charged with contravene ADVO and stalk/intimidate as a result of this incident. The mother received a further good behaviour bond, this time for two years.

14. Between February and August 2016 X did not spend any time with the mother. The parenting proceedings were commenced by the mother in April 2016, and on 25 May 2016, when the matter was first before the Court, the parents agreed to interim orders for the child to live with the father and spend supervised time with the mother at A Contact Service.

15. The time between the child and mother commenced to be supervised in early August 2016. However, by February 2017, the contact service terminated the supervised visits. The mother had failed to attend on one occasion and had been late to visits on at least four other occasions.

16. In late March 2018, the Family Report of Ms B was released to the parties.

17. After some negotiations between the parties through their solicitors which commenced in late 2017, and after consultation with A Contact Service, the parties agreed to the child’s time with the mother recommencing at the centre. X had an orientation session on 26 May 2018 and visits were booked in for 9 June, 23 June, 7 July (which was later changed to 15 July by the centre) and 21 July 2018.

18. On 9 June 2018, X and the father attended the centre for X to spend supervised time with the mother. After approximately 30-40 minutes had passed and the mother had not attended, the centre advised the father to leave with the child. The mother subsequently attended the centre, but not until after the father and child had left. X was distressed at not spending time with the mother.

19. Except for 23 June when the mother attended and X spent time with her, the mother failed to attend the scheduled visits on 15 and 21 July 2018, which were then cancelled by the centre. On 27 July 2018, the centre again issued a termination notice because of a “…pattern of late arrivals/failure to arrive, where three out of four scheduled visits were cancelled. On these occasions, X arrived at the centre then was sent home, which caused him confusion and disappointment.”

20. The contact centre notes indicated that the mother had been aggressive towards contact centre staff. The mother said that this never happened and further that “my words would have been aggressive but I wasn’t.”

21. In late August 2018, X was assessed by C Hospital, Suburb D to have severe developmental language disorder.

22. On 7 and 21 October 2018, the mother admitted to NSW Police, as a result of being pulled over whilst driving, to having smoked marijuana.  In November 2018, the NSW Police attended upon the mother’s home following reports of a domestic dispute between the mother and her then partner.

23. This matter had initially been listed for a three day final hearing to commence on 4 December 2018.  The mother failed to attend Court on the first day, and the matter was stood down to 10am on the following day to allow time for the mother’s legal representatives to contact her. On the second day of hearing, the mother did attend Court and the matter was stood down to the following day. Ultimately, the matter was marked as not reached and subsequently listed with priority on 28, 29 and 30 October 2019.

24. In February 2019, the child was assessed at his school by C Hospital in respect of his language disorder. He was assessed in March 2019 as having global developmental delay, significant expressive and receptive language and speech delay and mild stuttering. He commenced speech therapy and occupational therapy in March 2019. He has been approved for NDIS funding to enable him to access support services until February 2020, when the funding was to be re-assessed.

25. When the mother was cross-examined about her understanding of X’s developmental needs, the mother’s evidence was to the effect that there was nothing wrong with the child and that if he was exhibiting any problems it was because of the father.

26. Between December 2018 and the adjourned hearing date, the mother has been involved in further anti-social and criminal activity. Her circumstances have changed and will no doubt continue to change having regard to the remainder of the evidence as noted later in these reasons:

    a)On 4 February 2019, the mother was captured on closed circuit television to be kicking the side entrance door of a McDonald’s restaurant, causing the glass to shatter. The mother explained in cross-examination that she was upset at the way that the restaurant staff treated her whilst going through the drive-through, she said they were “rude”, so she parked her car and approached the restaurant wanting to speak to someone. She said that she remembered knocking on the door and then became frustrated so she started kicking the door. She said it was done in the “heat of the moment.” The mother had to pay for the damage caused.

    This was an incident which saw the mother’s two year old being left unattended in a motor vehicle late at night, albeit for a relatively short period of time. During cross-examination it became clear that the child could not see the mother when she left the motor vehicle and walked up to a door of the restaurant to complain about her meal and the service, whilst kicking the door and shattering the glass.  That child was placed at risk by the mother’s aggressive and anti-social behaviour.

    b)In mid-March 2019, the mother received an infringement notice for shoplifting groceries from Woolworths.

    c)On 10 May 2019, the mother left her two year old daughter locked in her car in the carpark while she went shopping. The mother gave evidence that she did not go shopping, but rather that she went to buy a toy for her daughter. The police were called after a passer-by noticed the child in the car. When the police arrived the little girl was thrashing about and appeared distressed. The mother denied that this is what occurred. She said that the reason her daughter was screaming is because the police were aggressive and that she was still half- asleep. The mother gave evidence that her daughter fell asleep when they arrived at the shopping centre, and rather than waking her up and taking her to the shop (it was 7.20pm) she left her in the car to sleep. The mother said that she thought her daughter would simply sleep through and that if she woke she would not be frightened because she had parked near the entrance of the shops and that she would know to wait for the mother. Given that the child was two at the time, the mother’s evidence shows a clear lack of understanding of her daughter’s needs and developmental stage. The mother was charged and convicted in respect of this incident.

    d)On 14 June 2019, the mother was physically and verbally abusive towards a friend of hers whilst they were at E Shopping Centre in Suburb F. The mother’s friend approached the concierge and asked for help as the mother was being aggressive. The mother denied that she was at fault, she said that she and her friend were “verbally arguing”, that the mother followed her when the friend went to security to ask for help, that she then got frustrated and started calling her friend names. The mother said that “things just got heated in the moment”, that there was screaming and shoving but no fists and that a few security guards tried to get in between them. The mother’s daughter was with her in the shopping centre “in the play area” but not directly with the mother. If this is correct, it is not clear who was looking after the child in this busy shopping centre while the mother was having a physical and verbal altercation with a friend which required intervention from centre security.

27. The mother gave evidence that as at the date of final hearing she had smoke marijuana in 2018 but that she had not been smoking marijuana from early 2019. This was not due to her pregnancy but rather because she was feeling “tired.” She says the reason she had previously smoked marijuana to help her deal with the matters she was going through, but when she realised it was not actually helping her she stopped. She has not sought any drug and alcohol counselling. She initially said in evidence that she had never heard of drug counselling but then said that she had, but that she did not think it was something that was of relevance to her situation.

28. At the time of final hearing, the mother was expecting her third child. The mother and her daughter were living in a unit in Suburb F, in a refuge. They lived in one refuge and about two months prior to final hearing moved to the refuge where they were currently living.

29. Whilst at the refuge, there was an incident between the mother and one of the other residents. The incident appears to have arisen as a result of the other resident complaining about the mother using physical discipline on her daughter. The police were called due to the mother’s behaviour towards the other resident.

30. The mother was previously living with Mr G, her daughter’s father, but since February 2019, she decided that it was better if they went their separate ways. The mother denies any family violence in the relationship with Mr G. The mother and her daughter were evicted from the rental premises where they had been living, and the mother was homeless for a period of time before moving into a refuge.

31. The reason the mother gave for living in a refuge was that she was just feeling like she needed to progress on her own without being in a relationship. She says that she was not able to pay the rent where she and her daughter were living after separation earlier this year, although she also gave evidence that the Mr G had been assisting her financially and continues to do so. She had some financial difficulties as a result of Court ordered fines, in respect of matters which were not outlined in her trial affidavit. She was caught shop lifting and had to pay a fine, and she damaged property and had to pay a fine.

32. The mother’s evidence is that she was no longer in a relationship with Mr G. According to the mother, her former partner was staying with friends while she was living in a refuge. There is uncertainty about Mr G’s right to stay in Australia. The mother was not able to shed any light on his immigration status – it appeared from her evidence that she considered these to be Mr G’s private matters which she did not want to enquire about, notwithstanding that he is the father of two of her children.

1. The Court finds that the true nature of the mother’s relationship with Mr G is not properly before the Court.

2. At time of final hearing the mother was looking for rental accommodation in the Suburb H area. She says it is an area which is affordable to her. Even though the mother said that she had no plans on reuniting with Mr G, it was still her plan to find a place for them to move in together and then to start working on their relationship again.

3. The mother proposes that she spend time with the child on an ongoing supervised basis. The cost is $130 per visit. She proposes that she and the father share the cost of that equally. When asked why this was appropriate she said it is the way it’s always been.

Parental Responsibility

1. The relationship between the parents is simply not conducive of any real or meaningful co-operation in respect of X’s long term welfare and needs.

2. The Court finds that the presumption of equal shared parental responsibility has been rebutted on the evidence, not only by virtue of a finding that there are reasonable grounds to believe that the mother has engaged in family violence against the father, but also given the totality of the evidence and taking into consideration the best interest considerations. 

3. The Court will make an order for the father to have sole parental responsibility. Given that the child will be living with the father, this is the only order with respect to parental responsibility which will see X’s needs met.

Court’s Determination

1. The mother was cross-examined over the course of more than one day. Her evidence in chief was of limited assistance to the Court and did not address a number of important matters, such as for example, the mother’s arrest in May 2019 for leaving her two year old unattended in a motor vehicle while she went shopping. The mother’s position is that this was not a relevant matter in respect of these proceedings. Indeed this was her position in respect of much of the evidence which ought to have been included in her affidavit.

2. It is clear that the mother did not consider that there was a need for her time with the child to be supervised, but rather that such order was sought on the basis of legal advice she had received. In the end, the mother did not believe that she posed any risk to the child.

3. The mother’s lack of insight was breathtaking.

4. The father is a capable parent. He has been looking after the child’s needs without any assistance from the mother for most of the child’s life. He facilitated a relationship between the child and mother and ensured the child was available to spend time with the mother at the contact centre. He now asks for an order that there be no time.

5. The Family Report which was released to the parties in March 2018 recommended a pathway forward to ensure that X had a relationship with the mother. That pathway has not been followed by the mother.

6. The Court does not draw any comfort from the assertions by the mother that she will now comply with Court orders in spending supervised time with the child. She has not been able to do that in 2017 and again in 2018, to the significant distress of the child. She is now about to have another child. She does not have stable accommodation. If previously she could not make the supervised time appointments for X’s benefit, it is even more unlikely that she would now be able to do so.

7. The mother says that she is often misunderstood, and that the way she expresses herself sees other people viewing her as angry and/or aggressive. Certainly, on an objective view of the mother’s behaviour at the McDonald’s restaurant in February 2019, the mother was exhibiting aggressive behaviours. She kicked a glass door shattering the glass because she was frustrated, inter alia, at what she perceived to be ‘rude’ service. The mother says that she has now learnt new techniques which should help her not to behave in this manner. The techniques of calming herself down essentially involve breathing exercises and nothing else. The Court does not accept that the mother would not act in a similar manner in a similar situation.

8. There are many risks to the child if he was to spend time with the mother, even on a supervised setting. X has special needs which the mother does not accept nor understand. She is highly unlikely to be able to deal with any challenging behaviour appropriately, and is highly likely to react in a negative manner towards the child. X has already had periods of building excitement and then significant disappointment with the mother failing to attend the contact centre in accordance with orders and arrangements made.

9. The mother has significant anti-social behaviour that she is only beginning to address. The Court finds that the mother does not have sufficient insight into her own behaviour or the depth of the risk to the child if her behaviours are not significantly altered. At present, the evidence does not support a finding that the mother has the capacity to alter her long established patterns of behaviour.

10. There would clearly be a benefit to X having a relationship with the mother which was meaningful, provided it was safe for him to do so. However, the risks to this particular vulnerable child are too high for there to be an order that he should spend any time with the mother. There are too many unknowns and without adequate evidence, the Court is not prepared to conduct an experiment in the hope that the child would be safe.

Conclusion

1. For all of these reasons orders as set out at the forefront of these Reasons for Judgment are made and are in the child’s best interests.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  27 March 2020