Terzi & Terzi (No 4)

[2019] FamCA 1008

FAMILY COURT OF AUSTRALIA

TERZI & TERZI (NO. 4) [2019] FamCA 1008

FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at Court events – Where father is currently in custody – Where appropriate that matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Terzi

RESPONDENT: Ms Terzi

INDEPENDENT CHILDREN’S LAWYER: Mr Macdiarmid

FILE NUMBER: PAC 2690 of 2016

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 November 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: Auslawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark MacDiarmid Family Law Specialist

Orders Made On 15 November 2019

1. The mother Ms Terzi have sole parental responsibility for the child X born … 2015.

2. The said child live with the mother.

3. The child spend time with the father as determined by the mother.

4. The name of the child X born … 2015 be removed from the Airport Watch list and is requested that the Australian Federal Police do all things necessary to facilitate this order.

5. The child X born … 2015 is permitted to have an Australian travel document and to travel internationally.

6. The mother Ms Terzi may apply for an Australian travel document (passport) for the child X born … 2015 without first obtaining the consent of the father Mr Terzi.

7. The Application for costs by the Independent Children’s Lawyer is dismissed.

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 Terzi & Terzi (No. 4) 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 2690  of 2016

Mr Terzi

Applicant

And

Ms Terzi

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 14 June 2016. The Initiating Application was further amended on 2 August 2016 to include property orders.

2. The application concerns X (“the child”) born in 2015 who was four years old at the time of hearing.

3. The father, who is currently in custody, has had intermittent involvement in the proceedings and has more recently failed to engage in the proceedings. Accordingly, the parenting proceedings were heard on an undefended basis.

4. At trial, the mother relied upon the following documents:

   a)her Further Amended Response to Final Orders filed 18 October 2019;

   b)her affidavit filed 18 October 2019;

   c)her Financial Statement filed 18 October 2019;

   d)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 24 October 2019; and

   e)Family Report prepared by Ms T dated 28 May 2019: Exh ”D”.

5. The mother sought final orders that she have sole parental responsibility for the child, that she be at liberty to have the child travel with her to Country N and that she obtain a passport for the child without the consent of the father. Orders were also sought that the father spend time with and contact the child as may be agreed between the parties.

6. The Independent Children’s Lawyer (“ICL”) supported the mother’s position.

7. Orders were made by the Court in the terms sought by the mother and reasons were reserved. These are those reasons.

Context

1. The mother was 37 and the father 42 at the time of hearing.

2. The parties commenced a relationship in around 2011 and were married in 2013. The parties separated in late 2016, when the child was just 12 months old.

3. The subject child of these proceedings was born in 2015.

4. The mother is currently unemployed and receives payments from Centrelink to support the care of the child for whom she has primary care. In the absence of any family in Australia, and notwithstanding a pending application for Australian Citizenship, the mother intends to travel with the child to her birthplace of Country N where the maternal family will assist with the care of the child.

5. The father has not seen the child since around December 2017 except for two occasions in October 2018 and March 2019.

6. Following threats made by the father to the mother, an Apprehended Domestic Violence Order (“ADVO”) was issued against the father protecting the mother which expires in June 2021.  At the time of hearing, the father was in custody for breaching this ADVO.

The proceedings

1. Proceedings were commenced by the father on 14 June 2016 by filing an Initiating Application in the Federal Circuit Court of Australia.

2. On 8 December 2016 the proceedings were transferred to this Court.

3. On 17 January 2017 the proceedings came before a Registrar who noted no appearance by the father. On this occasion the Court was advised that the mother no longer pressed her interim relocation application and that the father had been charged with breaching an Apprehended Violence Order (“AVO”). Aside from directions for filing, orders were made that in the event there was no appearance by the husband on the next occasion, the father’s application may be dismissed and the matter listed for an undefended hearing.

4. Subsequently the matter was before the Court on 5 September 2017 where interim orders were made, in summary:

   (1)that the child live with the mother;

   (2)that the child spend time with the father as agreed between the parties;

   (3)that parties facilitate an assessment for the suitability of supervised time with the father;

   (4)that each parent be restrained from consuming any illicit substance and be restrained from denigrating the other parent in the presence of the child;

   (5)that parties participate in urinalysis; and

   (6)that the parties attend COMP mediation facilitated by the ICL.

5. Subsequently on 19 December 2017, the proceedings were again before a Registrar who noted no appearance by the father. The matter was adjourned to 20 March 2018 in light of the agreement reached by the parties at the COMP mediation that the parenting arrangement of 5 September 2017 continue until March 2018.

6. On 20 March 2018 the Registrar again noted no attendance by the father, despite the father being notified by the ICL of the listing date. The mother was directed to advise the father of the order made on this occasion that the matter be allocated for a first day intake of the less adversarial trial on 2 May 2018 including the consequence of his non-attendance on this next date. The Registrar further noted that the father’s proceedings relating to his breach of an AVO is anticipated to be heard before Suburb U Local Court at the end of March.

7. On 2 May 2018 the proceedings were adjourned to facilitate the issue of relevant subpoena particularly as to the parties’ engagement with medical and/or mental health practitioners in order that consideration be given as to whether a Single Expert Chapter 15 Report is required or for the matter to proceed on the basis of a Family Report only.

8. On 2 November 2018 it was ordered with the consent of the father that the child be removed from the Airport Watch List and that the mother be permitted to travel overseas with the child for the purpose of a holiday to Country N and that the father submit himself to hair follicle testing. It was also ordered that parties attend upon a family consultant for the purposes of the preparation of a Family Report and following the release of such report the matter be listed for case management for which parties must attend in person.

9. On 26 March 2019 an interim application filed by the wife was before the Registrar. There was no appearance by the father. On 11 April 2019 the matter was again before the Registrar. The father appeared in person. The mother’s interim application was listed for hearing in the Judicial Duty List on 15 April 2019. Otherwise, financial issues were listed for a Conciliation Conference on 30 May 2019.

10. On 15 April there was no appearance by the father and orders were made as follows:

    UPON NOTING THERE IS NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT HUSBAND IN THESE PROCEEDINGS AND UPON HEARING MR CAIRNS OF COUNSEL ON BEHALF OF THE WIFE, IT IS ORDERED THAT

    (1)The Application in a Case filed 7 March 2019 by the wife proceed to undefended hearing.

    (2)That the parties shall do all acts and sign all documents, deeds and instruments necessary to list property, B Street, Town C (‘the B Street, Town C property’) for sale by private treaty with Company J at Town C, or other such Real Estate Agent as nominated by the wife (‘the Real Estate Agent’).

    (3)That the Wife nominate and instruct a conveyancer or solicitor of her choice to act on the sale of the B Street, Town C property.

    (4)That in the event that the B Street, Town C property has not sold by 15 April 2019, the Wife is at liberty to list the property for auction with the same Real Estate Agent and agree to the following terms:

    (a)Such auction take place within one month from the date of placing the property for sale by public auction or as soon as practicable thereafter.

    (b)The reserve price for such auction shall be determined by as agreed between the Wife and the Real Estate Agent.

    (c)Failing agreement of the reserve price within 7 days of placing the property for sale by auction, the sale price shall be determined by a valuer appointed by the Real Estate Agent Institute of NSW whose direction shall be final and binding and the cost of such appointment and valuation to be met solely by the Husband, or as otherwise agreed between the parties.

    (d)In the event that the bidding at the auction does not reach reserve price the Wife may negotiate with the highest bidders or any other interested person and effect a sale of the B Street, Town C property at a price that is not more than 5% below the reserve price.

    (5)That upon completion of the sale of the B Street, Town C property the parties shall distribute the sale proceeds as follows:

    (a)In discharge of the mortgage/s secured over the B Street, Town C property.

    (b)In payment of the Real Estate Agent’s commission and expenses on the sale.

    (c)In payment of conveyancer’s or solicitor’s fees, costs and disbursements.

    (d)In payment of proper legal costs and disbursements of each of the parties of and incidental to the sale following production of genuine receipts.

    (e)In adjustment of rates, levies and taxes on the B Street, Town C property.

    (f)In payment to the Wife of the sum of $30,000.00.

    (g)Pending further order, the balance is held in the Trust account of the Real Estate Agent appointed in accordance with these orders.

    (6)Pending the sale of the B Street, Town C property, the Husband shall:

    (a)Keep the property in good order and repair.

    (b)Co-operate in all reasonable ways with requests by Real Estate Agents and/or prospective purchasers including but not limited to:

    (i)Providing keys to obtain access.

    (ii)Doing all things necessary to facilitate access to the property at all reasonable times and facilitating access for inspection without interference.

    (c)Maintain the property in a presentable condition so as to facilitate the sale including but not limited to presenting the property in a neat and tidy condition at all times when the property is subject to inspection.

    (d)Do all things necessary to facilitate a sale at the earliest possible time.

    (e)Both parties shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the property being effected.

    (f)And give vacant possession not less than 14 days before settlement.

    (7)Pending sale of the B Street, Town C property the Husband shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property incurred prior to the date of the sale and shall make all such payments as and when they fall due.

    (8)That the parties shall sign all documents, deeds and instruments necessary to cause the transfer of the Wife’s share in the Husband’s Business to the Husband.

    (9)That in the event that either party fails to execute any deed or instrument necessary to give effect to these orders within 7 days of being requested to do so, the Registrar of the Family Court of Australia at Parramatta shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the deed or instrument.

    (10)The wife’s costs of and incidental to the Application in a Case are reserved.

11. On 5 June 2019 the Family Report prepared by the family consultant was released to the parties.

12. On 19 June 2019 the father again failed to appear, further orders were made as follows:

    (1)The Applicant wife be appointed as trustee for sale of the property B Street, Town C NSW being the whole of the land contained and for such purpose the said property shall vest in the wife for the purposes of facilitating a sale of the property as provided for in orders made 31 May 2019.

    (2)The Respondent husband Mr Terzi is hereby restrained from entering occupying or remaining on the B Street, Town C property, from attending at or being within 100 meters of the said property, from doing any act or thing to impede the sale of the said property and from discussing or communicating with any real estate agent appointed to sell the said property matters related to its said sale.

    (3)The Applicant wife have exclusive occupation of the property situate at B Street, Town C NSW from this date forward pending final sale of the property.

    (4)The husband pay the wife’s costs of and incidental to this application for enforcement. 

13. Subsequently further enforcement orders were made on 16 July 2019 as follows:

    (1)Pursuant to Rule 20.54 of the Family Law Rules 2004 a warrant issue to the Australian Federal Police to be assisted by the New South Wales Police to remove Mr Terzi from the property at B Street, Town C being all of the land comprised and to place the property in the possession of the wife Ms Terzi.

    (2)Upon execution of the warrant of possession by the Australian Federal Police and/or the New South Wales Police, Mr Terzi is hereby restrained from entering upon the property at B Street, Town C or to have anyone acting on his behalf as his agent or servant enter to enter upon the said property on his behalf after the property is in the possession of the wife Ms Terzi and that thereafter the husband Mr Terzi be restrained from coming within 250 metres of the said property.

    (3)The husband pay the wife’s costs of and incidental of the Application in a Case filed 10 July 2019 assessed in the sum of $1,000.00 with such sum to be paid to the wife from the proceeds of sale of the property at B Street, Town C to be held by the selling agent in accordance with orders made 31 May 2019.

14. On 9 August 2019 the matter came before the Court for judicial case management.  There was no appearance by or on behalf of the father. Accordingly, it was ordered that proceedings as to parenting proceed to undefended hearing on 15 November 2019 and the mother file any further affidavit material before that date.

15. On 15 November 2019 the proceedings were heard on an undefended basis and orders made.

Procedural fairness

1. As set out above the father has failed to appear on a numerous occasions and did not comply with directions made that he file material with the Court.

2. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   Parties' participation

   (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.

3. Further, rule 11.02(2)(c) of the Rules provides:

   (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.

4. Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:

   … delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.

5. Her Honour made reference to the principles imposed upon judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

6. Her Honour went on to say at [11] in Jarrah & Fadel (supra):

   … The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed…

7. Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.

8. Such is the case presently before this Court for consideration.

9. In circumstances where the father has failed to appear on a number of occasions as outlined above and has failed to comply with filing directions, the Court was satisfied that it was appropriate for the matter to proceed on an undefended basis.

Child Responsive Program

1. On 11 April 2017 the parties attended upon a family consultant as part of the Child Responsive Program. At this time the child was just 18 months old.

2. The mother told the family consultant that there was a current AVO protecting her from the father and that the father had been charged with breaching the AVO. The father denied this AVO, although the mother maintained that AVO proceedings were being heard in Court in June 2017.

3. The father alleged that the mother was violent towards him including three occasions where the mother allegedly hit him. He also reported to the family consultant that he received a good behaviour bond for breaching a previous AVO, but denied any other criminal charges relating to the mother. He further reported his previous criminal conviction of assaulting another person.

1. The mother reported being fearful of the father and recounted incidents of physical assault by him during their relationship and after separation. The family consultant noted that if these allegations of family violence are substantiated, the co-parenting relationship of the parties “may be significantly impacted”.

2. The father raised concerns about the mother’s mental health and reported that she suffered seizures. The mother maintained that she attended upon a psychologist for counselling but had not been diagnosed with any mental health issues.

3. The mother alleged that the father used ‘speed’ and urged that he be drug tested. The father reported to the family consultant that he was previously prescribed anti-depressant medication but was no longer taking it.

4. The father also raised concerns about the child’s health and the child being underweight “because [the child] was not feeding properly”. The mother told the family consultant that she was unable to breast feed the child when the father had hit her in the breast as this caused her milk to “dr[y] up”.  She also reported that the child had a healthy diet and denied that the child was underweight as she had taken the child to be weighed at a community health centre.

5. The family consultant opined that if the reports that the child has witnessed family violence are accurate, this is likely to have negatively impacted upon the child’s wellbeing and development and the child’s relationship with the father.

6. The family consultant urged the Court to determine whether the child is at an unacceptable risk of harm in the father’s care and until determined, the father only spend supervised time with the child.

7. The family consultant also recommended that if the father’s time with the child is not supervised, changeovers should be supervised “to minimise the likelihood of violence occurring between the parties”.

The father’s perpetration of violence

1. The father perpetrated violence throughout the parties’ relationship and after separation.

2. A number of serious incidents of violence perpetrated by the father flowed from the mother’s desire to travel to Country N to visit her family with the child and the father’s resistance to this occurring. When the mother and maternal family agitated arrangements for the parties’ intended travel to Country N, the father on occasion became aggressive.

3. On 2 June 2016 when the maternal grandmother called the mother regarding travel plans the father became angry and came close to the mother’s face calling her a “bitch”. When the mother went into another room with the child, the father continued to yell and complain that her family was interfering and attempted to retrieve the child from the mother. At the mother’s refusal to let the child go, the father repeatedly hit the mother in the face. Even when the mother ran to another part of the home, still with the child in her arms, the father followed her and hit her until a friend present at the time intervened. This caused the mother to bleed onto the child’s face. In fear of the father, the mother did not inform the Police of this incident until they attended the home the next day following a similar incident of violence.

4. The following day the father followed the mother around the house saying words to the effect of “Are you happy? Look what I did yesterday because of you”. When the mother did not respond the father once again hit the mother. When asked by the mother if the child could be fed as he looked hungry, the father responded by forcibly grabbing her by the arm and pushing her into the child’s bedroom. He then threatened her with words to the effect of “You can’t get my son from me, don’t try me”. Other threats were made by the father about initiating court proceedings. When the mother agreed to settling the dispute in court, the father pushed her onto a couch nearby and repeatedly hit her as he held her by her hair. The Police were called by a neighbour and the father was taken into custody and charged with assault. An interim Apprehended Domestic Violence Order was made.

5. On 4 June 2019 the father was granted bail. Upon returning to the parties’ home, the father threatened the mother that if she did not discontinue the ADVO proceedings he would never facilitate travel back to Country N nor provide her with the child’s passport. The mother describes being further pressured by the father’s friends who told her words to the effect of “You are by yourself in Australia, you can’t win the court against him as you don’t know anything about the law”.

6. On 5 June 2019 the mother requested the Police discontinue the ADVO proceedings. The Police refused. The ADVO matter proceeded on 6 June 2019 before the Local Court and an ADVO was put in place for the protection of the mother.

7. Despite the ADVO order and a letter sent to the father from the mother’s then solicitor informing him of the ADVO conditions, the father continued to enter the parties’ home to intimidate the mother and perpetrate violence.

8. One such occasion occurred on 21 June 2016. The father was at the parties’ home with his daughter of a previous relationship. The father once again threatened the mother about taking the child away and made threats that he would “make [the mother] sleep on the road”. The father continued to yell and display aggressive behaviour in the presence of both children and dismissed his daughter’s plea to stop. The mother contacted the Police who amended the ADVO to include the subject child as a protected person and include an order that the father not approach within 200 metres of them.

9. After separation, and particularly in the limited time the father spent with the child, the father continued to perpetrate violence against the mother.

10. During a changeover in November 2016 the child appeared reluctant to leave the mother. The father asked the mother to place the child in his car and in the course of the mother asking the father to adjust the child’s seatbelt, the father became aggressive towards the mother. After observing that the father’s eyes were red and his speech slurred, the mother said to the father words to the effect of “[the child] should not go with you today…I don’t think you will be able to look after him well”. The father then pushed the child’s pram and proceeded to hit the mother with an open hand on the right side of her face and neck. At the time of this incident, the father was on a good behaviour bond as a result of being convicted of a breach of the ADVO order then in place. 

11. At other times when the father would attend the mother’s residence with flowers and other small gifts which the mother refused to accept, the father would swear at the mother. On one occasion in or around 2017 the father attempted to provide the mother with a pot plant and when the mother did not accept this gift the father smashed the plant in the presence of the child.

12. Recently in April 2019, the father threatened to kill the mother in a text message (Exhibit “E”) translated by a Country N interpreter to read: “I am not threaten you but I kill you, you will stay in my hand”. This resulted in a further ADVO protecting the mother for a period of two years. On 29 September 2019 the father was taken into custody for breach of this ADVO after he attended the mother’s home at night when she and the child were sleeping. Just prior to this incident, police attended the mother’s home for a welfare check after threats were made by the father about the mother to a Centrelink employee. It is understood that at the time of the undefended final hearing the father was still in custody for the breach of the ADVO.

13. Throughout the relationship the father also displayed coercive and controlling behaviour. With respect to financial arrangements between the parties, the father denied the mother access to joint bank accounts in the parties’ name and although the mother had a card of her own, he frequently checked this card and required that she inform him of her intended use of the card for him to approve. With respect to the mother’s relationships, the father barred the mother from using her telephone to contact friends and family members and even when the mother was successful, the father would call those contacted by the mother to question the content of the phone call.

14. The father was also verbally abusive towards the mother, degrading her with words to the effect of “you don’t know anything”, “you’re just stupid”.

15. The mother attended upon a psychologist for an assessment after the father maintained throughout the relationship the accusation that she was mentally impaired or “crazy”.

The Family Report

1. On 28 March 2019 the parties attended upon a family consultant for the preparation of a family report, although the father was reluctant at first to meet with the family consultant.

2. No other ADVO was reported to the family consultant other than the ADVO made in 2016 for the protection of the mother for a period of two years. The mother alleged physical and verbal abuse perpetrated by the father during their relationship and also raised concern about the father’s mental health and his inability to control his anger.

3. The father alleged verbal abuse by the mother during their relationship and that the mother would at times attack him or push him violently.

4. The father reported to the family consultant concerns for the child’s physical, mental and emotional well-being based on the mother’s alleged aggressive behaviour towards him. The mother expressed concerns about the father’s denigration of her and its effect on the child’s emotional wellbeing as well as the potential effect of the father’s anger on the child.

5. The mother told the family consultant that she does not use illegal substances and only drinks alcohol occasionally, although the father reported that the mother used marijuana and ‘ecstasy’ during their relationship. The mother again reported the father’s use of ‘speed’ during their relationship consistent with evidence in her affidavit that the father “did not sleep at night” and that he was quick to become aggressive and agitated. She also expressed concern about his ongoing use of illegal substances, although the father maintained otherwise. 

6. The mother reported to the family consultant that she experienced depression following her separation from the father and that she was prescribed anti-depressants which she used for a period of 12 months. She also expressed concern for the father’s mental health especially in relation to his anger. She reported that the father’s anger is “explosive” taking him only “one second” to become aggressive.

7. The father expressed concern for his own mental health owing particularly to his negative experience of the Court process and his loss of “everything he owned”. He also reported to the family consultant concerns that the mother was not mentally fit based on her alleged treatment of him.

8. The family consultant recommended that the child live with the mother and that if the Court determines that the child is at an unacceptable risk of harm spending time with the father or that the mother is also at an unacceptable risk of harm from coming into contact with the father then the child spend no time with him.

9. It was also recommended by the family consultant that if the father chooses not to spend time with the child in a manner deemed appropriate by the Court, then the child be permitted to relocate to Country N with the mother and that the mother have sole parental responsibility for the child.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

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

3. 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.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. 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.

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. In the present case the Court is easily satisfied that the father perpetrated serious family violence towards the mother having regard to the evidence adduced in the proceedings. Against this background of family violence, the presumption shall not apply.

9. The family consultant also recommended that the mother have sole parental responsibility and opined that:

   “It does not appear that there has been any co-parenting relationship between [the mother] and [the father] to date, with [the mother] making all the decisions regarding [the child]’s medical and other needs. If having shared parental responsibility increases conflict and negatively impacts the well-being of either parent either because they are unwilling or unable to establish a co-parenting relationship, this is likely to negatively impact [the child]’s well-being due to being exposed to ongoing parental conflict.”

10. In these circumstances, the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the child’s best interests. 

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations 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. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

Section 60CC(2)(a) – “meaningful” relationship

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…

3. The mother has been the primary carer for the child at all times since his birth and it is readily apparent that the child’s primary attachment is to her. The father has at no stage had a meaningful relationship with the child. Unlike the mother, the father has not played an active role in the day to day care of the child. Even more so after separation, the father has only seen the child on an irregular and infrequent basis. This is despite Interim Orders made in 2017 which provided for him to spend time with the child at a contact centre. He ceased to comply with these orders as he thought supervision unnecessary.

4. It was the family consultant’s view that:

   “For a child to build a meaningful relationship with a parent with whom they do not live they require safe, regular and predictable experiences with that parent.”

5. In his interview with the family consultant the father opined that he and the child had only a small period of time to get to know each other and when observed with the child the family consultant reported that the child “appeared to be willing to play with [the father] but was more cautious in regards to demonstration of physical affection”. The father further opined that he had practical difficulties in spending time with the child including having no financial means to support the child or buy him food, and that he was unable to readily pick the child up as he did not own a car.

6. Clearly, in light of the father’s lack of preparedness to meet the child’s needs and in the absence of any proposals made by him to spend time with the child in the future, it is appropriate to make orders that ensure the child remains in the mother’s primary care and that the father’s time be as the mother considers appropriate.

Section 60CC (2)(b) – need to protect

1. This consideration relating to the need to protect the child from harm is to be given greater weight than the benefit to the child of having a meaningful relationship with both parents.

2. This is a salient issue in the proceedings given the father’s long term perpetration of violence towards the mother and criminal history generally. This gives rise to a significant concern about the risk of harm he poses to the child and to the mother.

3. The father has perpetrated violence against the mother during and after their relationship and on many of occasions in the presence of the child. This has resulted in various ADVO orders against the father for the protection of the mother and the child, which the father has also been charged with breaching. The father also has a reported criminal conviction for the assault of another person.

4. Relevant to the consideration of needing to protect the child is the following opinion expressed by the family consultant of the Child Responsive Program:

   “[The child] is a very young child who is reported to have witnessed family violence. If this is accurate, this is likely to have negatively impacted upon [the child]’s well-being and development.”

5. Some concern as to both parties’ drug use arose from when they attended upon the family consultant of the Child Responsible Program. This resulted in an order being made for both parties to undergo urinalysis at the request of the ICL and a further order was made that the father undergo hair follicle testing.

6. The mother participated in urinalysis and her results were exhibited in the proceedings: Exh “E”. The results show that a negative result was produced for all drugs tested.  

7. No results were provided by the ICL as to any drug testing of the father as the father failed to comply with such orders and the ICL requests for such testing.  

8. Relevant to the consideration of needing to protect the child from harm is the following opinion expressed by the family consultant:

   “The use of stimulants, such as amphetamines, effect the central nervous system and increase alertness, attention and energy. A user may feel energetic with very little sleep and their sleep-wake cycles are distorted. This may affect the parent’s ability to attend to a child’s need for structure and routine. The parent may become impatient or irritated with the child. The use of amphetamines can also decrease their appetite and this could cause them to not appropriately consider the child’s hunger.

   …

   With the use of any drug there is the possibility the use may leave child alone while obtaining or using the drug.”

1. In these circumstances, the Court cannot be satisfied that the father’s historical use of the drug “speed” (amphetamine) is not an ongoing concern. In light of the family consultant’s view and concerns of the father’s use of “speed” which may negatively affect his parenting capacity, it is likely that if the child did commence contact with the father the child would be at an unacceptable risk of harm or neglect.

2. Having regard to significant evidence as to the risk posed by the father and the opinion of the family consultants on the negative impact of family violence and the use of drugs on a parent’s capacity to care for the child, it is clearly appropriate to make orders as sought by the mother and supported by the ICL that the child live with her and spend time with the father as she determines.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

   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;

   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);

   c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:

   i)To participate in making decisions about major long-term issues in relation to the child; and

   ii)To spend time with the child; and

   iii)To communicate with the child;

   ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   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);

   iii)with whom he or she has been living;

   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;

   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;

   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;

   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;

   i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   j)Any family violence involving the child or a member of the child's family;

   k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   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; and

   m)Any other fact or circumstance that the court thinks is relevant.

2. Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.

3. The child was three years and six months old when he met with the family consultant. In the family consultant’s view the child was not of an age or apparent developmental stage whereby he could be meaningfully interviewed or express his views in regards to his parent’s proposals. In these circumstances, no weight can be attached to the views of the child. 

4. It is clear that the child’s primary attachment is to the mother and that the mother has at all times been the primary carer of the child. As aforementioned, the child’s relationship with the father is very limited. Since birth the father has failed to play an active role in the child’s life and has not spent significant time with the child since December 2017.

5. Despite commencing proceedings in relation to the child, the father has failed to commit to his application and has disengaged in the proceedings. He has also failed to attend supervised contact with the child pursuant to Interim Orders made in 2017. It was the father’s view that there was “no need” for a contact centre. However, even when the mother facilitated time with the child outside of the Orders, the father usually arrived 30 to 40 minutes late and would not bring any food for the child. On other such occasions, especially during changeover, the father would perpetrate violence against the mother which resulted in the child being withheld from spending time with the father. The family consultant was of the view that if the father cannot prioritise being available to spend time with the child and be consistent, then this may negatively impact the child’s well-being and have negative consequences for the relationship between the child and the father.

6. There is also some doubt as to the father’s capacity to provide for needs of the child and his attitude to parental responsibilities. As noted earlier, the father expressed some practical difficulties with spending time with the child including a lack of money and having no access to a car. It was, in fact, the family consultant’s opinion that the father presented with a “defeatist attitude” regarding his ability to overcome these difficulties. This, alongside concerns of the impact of an ongoing use of ‘speed’ on his parenting capacity, point to a compromised ability to meet obligations to maintain the child.

7. There is no question as to the mother’s capacity to provide for the needs of the child given she has been responsible for his day to day care since birth. She has also demonstrated an engaged and mature attitude to her parental responsibilities.  As observed by the family consultant:

   “[The mother] demonstrated an ability to engage with [the child] in a manner appropriate to his developmental level and she was responsive to his needs… The presentation and demeanour of [the child] was not suggestive of neglect and nothing arose during the course of the assessment to suggest that [the mother] is not suitably meeting [the child]’s parenting needs.”

8. Further, the mother proposes to relocate to Country N where she will be assisted by the maternal family in the care of the child. Although members of the maternal family have not been observed with the child, there is evidence that they have taken time off work to spend time with the child and are willing to aid in the before and after school care of the child. The family consultant opined that if the mother is isolated and without support in Australia this could negatively impact her well-being and consequently the well-being of the child into the future. As such, the family consultant formed the view that the mother would benefit from relocating to Country N particularly if the Court is satisfied that the child would be at an unacceptable risk of harm spending time with the father.

9. The mother is in receipt of Centrelink payments which she uses to support herself and the child. The father does not provide any financial assistance to the mother for the maintenance of the child and has in the past paid very little by way of child support.

10. The orders proposed by the mother and supported by the ICL would see a maintenance of the status quo for the child. A change in the child’s circumstances resulting in his separation from the mother is likely to have a deleterious effect on his wellbeing, particularly in light of the family violence perpetrated by the father.

11. Orders that the child spend time with the father would unlikely result in any benefit to the child and only involve risk to both the child and mother. Particularly in circumstances where a co-parenting relationship does not exist between the mother and father and both parents are unwilling or unable to establish such a relationship, as noted by the family consultant, this is likely to negatively impact the child’s well-being due to being exposed to ongoing parental conflict.

12. The child is of Country N heritage. Residing with the mother and the maternal family who are also of such heritage would see the child involved in his culture of origin.

13. Given the father’s non-attendance before the Court and his non-compliance with directions, the orders sought by the mother would be least likely to lead to the institution of further proceedings.

14. A consideration of the s 60CC factors having regard to the background of this matter and the reality that the child has no relationship with his father supports the making of orders as sought by the mother as being in the best interests of the child.

15. Such orders will allow the mother to provide for the child with the support of the maternal family without fear of the father and without the risk of harm posed by the father.

16. The mother also sought orders which would permit her to obtain a travel document for the child without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for a child absent the consent of the other parent. In the circumstances of this matter where the father has at no stage meaningfully participated in the child’s life, it is proper for the mother to be able to obtain a passport for the child without the consent of the father and to be able to travel with the child as she wishes.

17. All the aforementioned considerations are clearly indicative of orders being made in the best interests of the child as sought by the mother.

18. Orders will be made accordingly.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2019.

Associate: 

Date:  20 December 2019