Thayne & Borden
[2023] FedCFamC1F 305
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Thayne & Borden [2023] FedCFamC1F 305
File number: SYC 8351 of 2018 Judgment of: CAMPTON J Date of judgment: 24 April 2023 Catchwords: FAMILY LAW – PARENTING – Father’s Response to an Initiating Application struck out and dismissed – Final parenting orders made by consent as between the mother, the maternal grandfather and Independent Children’s Lawyer save as to one issue, and on an undefended basis as against the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 69ZN, 69ZP, 69ZQ, 69ZR
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 15.16
Cases cited: Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 18 April 2023 Place: Sydney Solicitor for the Applicant: Mr Graham, Glenn R Walters & Co The First Respondent: Did not participate Solicitor for the Second Respondent: Mr Ulbrick, G & D Lawyers Solicitor for the Independent Children’s Lawyer: Ms Gordon, Gordon & Barry Lawyers Pty Ltd ORDERS
SYC 8351 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS THAYNE
Applicant
AND: MR BORDEN
First Respondent
MR B THAYNE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
24 April 2023
THE COURT NOTES THAT:
A.The mother and the maternal grandfather acknowledge and agree that should either of them seek to file an application for parenting orders at the expiration of three years from the date of these orders, neither of them shall seek to rely on the principles of Rice v Asplund (1979) FLC 90-725 in response to such an application.
B.For the purpose of these orders:
(a)“Mother” means the applicant, Ms Thayne, born in 1998;
(b)“Father” means the first respondent, Mr Borden, born in 1993; and
(c)“Maternal grandfather” means the second respondent, Mr B Thayne, born in 1970; and
(d)“Maternal grandmother” means Ms C Thayne.
THE COURT ORDERS THAT:
1.The Amended Response of the father filed on 6 March 2023 is struck out and dismissed.
2.All existing interim parenting orders as the child, X born 2018, are discharged.
3.The Independent Children’s Lawyer’s oral application for costs is dismissed.
4.X spend time with the father as such times as agreed by the maternal grandfather.
BY CONSENT AS BETWEEN THE MOTHER, THE MATERNAL GRANDFATHER, AND THE INDEPENDENT CHILDREN’S LAWYER AND ON AN UNDEFENDED BASIS AS AGAINST THE FATHER:
5.The mother and the maternal grandfather have equal shared parental responsibility for X.
6.X live with the maternal grandfather and spend time with the mother on a two-week cycle, as follows:
(a)In Week 1, from 9.00 am or after school Friday to 8.30 am or commencement of school Monday;
(b)In Week 2, from 3.00 pm Tuesday or after school until 8.30 am or commencement of school on Thursday;
(c)and as otherwise agreed.
7.X spend time with the mother on special occasions as follows;
(a)For three hours on his birthday if it falls on a school day from after school to 6.00 pm and if not on a school day from 10.00 am to 3.00 pm;
(b)On mother's Day from 10.00 am to 6.00 pm;
(c)From 12.00 noon Christmas Eve to 12.00 noon Christmas Day in even numbered years;
(d)From 12.00 noon Christmas Day to 12.00 noon Boxing Day in odd numbered years;
8.Unless otherwise agreed, the maternal grandfather or the maternal grandmother, shall deliver X to the mother at the commencement of X’s time with the mother and shall collect X from the mother at the conclusion of time spent.
9.Unless otherwise agreed after X commences school on those occasions his time with the mother starts or finishes from school, the mother is to collect him from there and return him there.
10.For the purpose of implementation of X’s time with the mother and or in relation to communication concerning any aspect of X's welfare, the maternal grandmother may communicate with the mother.
11.The mother and maternal grandfather shall do all acts and things and sign all documents necessary to facilitate X’s enrolment and attendance at D School commencing in 2024.
12.The mother and maternal grandfather shall be restrained by injunction from doing any act or thing to relocate X’s residence more than 25 kilometres from D School, unless otherwise agreed between the mother and maternal grandfather.
13.For a period of five years from the date of these Orders, the mother shall at the request of the maternal grandfather undertake chain of custody urinalysis in accordance with AUS:NZ standard 4038:2008 testing for the presence of illicit substances on no more than one occasion every six months.
14.For the purpose of Order 6, should the mother test positive to any illicit substance X’s time with the mother pursuant to these orders shall occur during daytime hours only with the hours to be agreed and failing agreement time shall be from 2.00 pm to 5.00 pm each Saturday until the mother produce a urinalysis negative to illicit substances.
15.Upon X commencing school, he shall spend time with the mother by agreement and otherwise in accordance with the term time agreement arrangement.
16.The mother and maternal grandfather shall do all acts and things and sign all documents necessary to authorise the school attended by X, any doctor or hospital attended by X to provide to the other any information or document sought by them.
17.The maternal grandfather shall within 14 days of receipt of a request by the father provide to the father copies of any school reports or medical reports requested by the father and shall within 48 hours of X’s admission to hospital or serious illness suffered by X notify the father of same.
18.Each party being, the mother, father and maternal grandfather shall be restrained by injunction from denigrating or speaking negatively about any party the subject of these proceedings or any person with whom the mother, father or maternal grandfather are in a relationship within the presence or hearing of X.
19.It is a term and condition of X spending time with the mother that the mother be restrained from using illicit drugs.
20.The mother is restrained by injunction from consuming alcohol for a period of 24 hours prior to X coming into her care and whilst X is in her care.
21.The maternal grandfather shall facilitate FaceTime calls between the mother and X at all reasonable times.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thayne & Borden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Ms Thayne (“the mother”) and Mr B Thayne (“the father”) are the parents of X born 2018. These proceedings were commenced by the mother and Mr B Thayne (“the maternal grandfather”) more than four years ago on 31 December 2018 in what was then the Federal Circuit Court.
It is uncontroversial that;
(a)X has almost wholly lived in the home of the maternal grandfather and Ms C Thayne (“the maternal grandmother”), (collectively, “the maternal grandparents”) since his birth to the current time, and that for most of that period his parents have not lived with him in that home; and
(b)The maternal grandparents have been the persons responsible for meeting X’s day to day physical, emotional, psychological and financial needs and nurturing him since he was born; and
(c)the parents’ relationship was turbulent and highly dysfunctional, defined at times by extreme and serious conflict, potentially life threatening violence, and the parents’ misuse of illicit drugs. Serious and significant incidents of family violence between the parents continued after their relationship concluded.
The adverse emotional, psychological and financial impacts on X and upon the maternal grandparents of further litigation as to his parenting is self-evident. The maternal grandparents are funding the litigation from their own resources for X’s benefit. The litigation has required their attention and energy, cast against the shadow of the background each of the parents have encountered as recorded in these reasons. When they appeared before me in the courtroom on 21 April 2023, the mother and the maternal grandfather were visibly emotional.
This matter has consumed in excess of 20 court listings to date before a judge, four of which were defended hearings of interlocutory applications, and a number of other listings before delegated judicial officers. As part of the proceedings, Court Child Experts have prepared a detailed Child Dispute Conference Memorandum, dated 18 February 2019, and a comprehensive Family Report dated 24 August 2021 (“the Family Report”) (Exhibit 4).
The New South Wales Department of Communities and Justice (“DCJ”) became aware of child protection concerns relating to X arising from various issues, including family violence perpetrated by the father upon the mother.
The parents have had extensive contact with the police. There have been a number of Apprehended Violence Orders (“AVO”) made against each parent including for the protection of both X and the maternal grandparents. The father’s engagement with the police has increased in seriousness and in volume over the course of X’s life, resulting in periods of incarceration. His last contact with police was in late 2022, when he was charged with offences, being:
(a)multiple assault charges; and
(b)contravening a prohibition or restriction in an AVO (Domestic).
Arising from the offences, the father was arrested and incarcerated. As at 21 February 2023 when the matter first came before me, he remained incarcerated. The father obtained bail in early 2023, after spending months in prison on remand. His Bail Acknowledgment (Exhibit 2) records that his criminal offences are next listed before the Local Court in mid-2023. It if unknown if they will be concluded on that day.
THE HEARING ON 21 APRIL 2023
The maternal grandfather and the Independent Children’s Lawyer (“ICL”) have sought disclosure from the father of the facts and particulars alleged by the police relating to his current tranche of criminal charges, as to when those charges are likely to be heard and determined, and as to the likely custodial sentence he may receive if he is convicted. Notwithstanding he had the benefit of advice from his solicitor, the father has refused or neglected to disclose any documents or information as to these matters except to provide a copy of his Bail Acknowledgment dated early 2023.
This matter has been allocated a disproportionate volume of judicial and administrative resources of this Court when regard is had (as will be discussed in these reasons) to the issues requiring determination. The notion that parties to a proceeding are not entitled to consume an unlimited amount of public resources in the pursuit of their own interests is consistent with the obligations imposed by this Court as contained in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”). I am mindful of the obligations imposed on the Court and parties to proceedings by way of ss 67 and 68 of the FCFCOA Act and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), to promote the overarching purpose of the Rules and of the practice and procedure provisions. This Court has a responsibility to ensure that litigation and management of its workload occurs according to law, and as efficiently and inexpensively as possible. In that sense, this Court is required to efficiently use its judicial and administrative resources, and exercise its business to ensure the disposal of all proceedings in a timely manner that is proportionate to the importance and complexity to the matters in dispute.
The provisions of the FCFCOA Act and the Rules are to be exercised in conjunction with the provisions of the Family Law Act 1975 (Cth) (“the Act”) which regulate the conduct of child‑related proceedings. Those provisions centre on ensuring that a child’s needs, including to be kept safe and protected from harm, are the focus of the proceedings. They mandate that the Court actively direct and control the conduct of proceedings.
Cast against that legislative framework, and having regard to the tortuous history of this litigation, the Court on its own initiative (pursuant to s 69ZP of the Act) by way of orders made on 21 February 2023 and 22 March 2022, put the parties on notice that determinations, findings and orders would be made on pursuant to s 69ZR of the Act when the matter was listed on 18 April 2023. Those orders directed each party to appear in person on 18 April 2023. This procedural determination was made in promotion of the principles applicable to child related proceedings as identified in s 69ZN of the Act, and the general duties recorded in s 69ZQ of the Act, so as to promote the best interests of X.
Despite the express orders requiring the parties to attend the Court in person, on 13 April 2023 the father’s solicitor filed a Request to Attend by Electronic Communication at the hearing on 18 April 2023 pursuant to r 15.16(3) of the Rules. That reason for the request was given as being:
1.The [father] is currently on bail and he is physically unable to attend Court.
2. The [father’s] lawyer has another matter requiring her to be present at her office on 18 April 2023 and is unable to travel to Sydney.
3. The [father’s] lawyer is seeking to appear by electronic communication to enable her to attend her court commitments and mediation on the same day.
There was no evidence filed by the father in support of the Request to Attend by Electronic Communication. There was no evidence as to the nature of the contended other matter (it was understood to be a mediation) drew the priorities father’s solicitor or why it prevented her from also attending the Sydney Registry for the hearing on 18 April 2023. She did not indicate how she would be able to attend to the other matter, given the hearing was listed for half a day in this Registry, and at the same time engage in this matter on the terms advised in the above orders. There was no explanation given for the proposal of the father’s solicitor that the father would attend the hearing “on a separate telephone number” (implicitly not being physically present with his solicitor during the hearing). There was no evidence at that time as to the terms of the father’s bail conditions, save for a bare assertion that it prevented him from attending Court, apparently without his solicitor. The father’s solicitor did not indicate why she could not instruct an agent or brief counsel to appear on behalf of the father. In those circumstances, the request was refused (pursuant to r 15.16(5) and (5) of the Rules).
Later on 13 April 2023, the mother’s solicitor filed a similar Request to Attend by Electronic Communication. The reason for the request was given as being that the mother’s solicitor had a conciliation conference in the Registry which conflicted with the hearing on 18 April 2023, but proposed that the mother would attend the hearing in person. For similar reasons to those given in relation to the refusal of the father’s solicitor’s request, this request was refused.
Each of the maternal grandfather and the mother together with their legal representatives appeared in person at the hearing on 18 April 2023, as did the ICL. The father did not attend Court, nor did his solicitor.
Over the course of the hearing on 18 April 2023, each of the maternal grandfather, the mother and the ICL reached agreement to compromise and conclude the dispute as to the future parenting arrangements for X. That agreement was reduced to a consent Minute of Order, which was marked as Exhibit 5. It broadly provides for:
(a)The mother and the maternal grandfather to have equal share parental responsibility for X;
(b)X to continue living with the maternal grandparents, and to spend regular time with the mother on a fortnightly cycle which would see him spending time with her from Friday to Monday in Week 1, and from Tuesday to Thursday in Week 2. X would spend such additional time with the mother as agreed between her and the maternal grandfather, and on special occasions; and
(c)The mother and maternal grandfather to facilitate X’s attendance at D School;
(d)For the mother to continue undergoing urinalysis drug testing once every six months at the request of the maternal grandfather for a period of five years;
(e)For the maternal grandfather to provide the father copies of school and medical documents for X at the father’s request, and to notify the father if X is admitted to hospital or suffers a serious illness.
Each of the maternal grandfather, the mother and the ICL sought that the father’s Amended Response to an Initiating Application filed on 6 March 2023 be struck out and dismissed, and that orders be made on an undefended basis as against the father in terms of Exhibit 5, so as to conclude the proceedings.
For the reasons that follow, I am satisfied that it is in X’s best interests to proceed to determine this matter on an undefended basis as against the father, and to make the agreed orders sought by the maternal grandfather, the mother and the ICL, except for that as contained in Exhibit 5 as to the terms the father’s time with X. That proposed order was in the following terms:
2. [X] live with the maternal grandfather and spend time with the:
2.1.Father on terms and at such times as agreed by the mother and maternal grandfather;
An order shall be made for the maternal grandfather alone, as the person with whom it is agreed X will live, to reach agreement with the father as to his time spent with X.
BACKGROUND
The parents commenced a relationship when the mother was 17 years old and the father was 23 years old. They did not live together for any significant period of time. Their relationship broke down and later reconciled on multiple occasions before finally concluding on 22 December 2018 in the shadow of a serious and significant family violence incident.
Between X’s birth and late 2018, the mother and father each lived predominantly with X and with the maternal grandparents, who played a significant role in supporting the parents in providing care for X during this period.
In late 2018 the father travelled with X to Queensland to stay with his parents, without the mother’s consent or the knowledge of the maternal grandparents. This prompted the mother and the maternal grandfather to commence the proceedings seeking an urgent recovery order to have X returned to their care. Such orders were made on an ex-parte basis on 31 December 2018.
On 7 January 2019, interim orders were made on a defended basis that the father spend two hours each weekend with X supervised by the maternal grandfather, that the parties engage with the E Town Contact Centre to progress the father exercising professionally supervised time and that the maternal grandfather be identified as the second respondent in the proceedings.
X lived with the maternal grandparents after the execution of the recovery order in early 2019. He continued to do so after the mother moved out of the maternal grandparents’ home. A series of interim parenting orders have been made in the lengthy course of the proceedings regulating the terms of the time spent by each of the parents with X.
On 20 February 2019, interim orders were made on a defended basis for the children to live with the maternal grandparents. Additional consent orders were made on that date for X to spend time with X on three specific occasions in the maternal grandfather’s home or the home of the father’s sister. By way of those orders, the Independent Children’s Lawyer was appointed.
A judge of the Federal Circuit Court (as it was then) conducted an interim hearing on 8 April 2019. On that date, the mother, maternal grandfather and the ICL agreed to a set of comprehensive interim parenting orders which included orders for:
(a)The mother and the maternal grandfather to have equal shared parental responsibility for X;
(b)X to live with the maternal grandfather. At that time the mother had returned to live with the maternal grandfather and so there was no order made regulating her time with X;
(c)The father to spend professionally supervised time with X for three hours on two days per week as agreed; and
(d)The mother and the father to undergo a regime of drug testing, which included regular urinalysis and hair follicle testing.
The proceedings next became before the Court on 8 October 2020. A declaration was made on that date as to the father’s parentage of X. The circumstances of that declaration being made is unclear on the evidence available to me, although the orders refer to the urgent need to have X’s birth registered with the relevant authority. An order was made for the preparation for a family report.
The orders made on 19 January 2021 note that the father did not spend professionally supervised time in accordance with the orders made on 8 April 2019 (some two years earlier), but that he had “spent time with the child supervised by the [maternal grandparents] on limited occasions of the child’s sports lessons and on special occasions around Christmas time”.
Following a further interim hearing conducted on 28 June 2021, a further set of interim consent orders were made regulating the mother’s time with X in circumstances where she was no longer living with the maternal grandparents. What time the father should spend with X was not the subject of consent. The determination of that dispute was reserved, and reasons for judgment subsequently delivered orders were made on a defended basis on 5 July 2021, providing as follows:
1.That unless otherwise agreed between the Father and the maternal grandfather, [X] shall spend time with his Father as follows:
(a)For a period of four (4) weeks, each week on Tuesday from 10:00AM until 2:00PM;
(b)Subject to the Father providing evidence to the maternal grandfather that he has purchased a suitable cot in which the child can sleep, for a period of four (4) weeks, each Tuesday from 10:00AM until 4:00PM and each Saturday from 1:00PM until 4:00PM;
(c)Thereafter, each week on Tuesday from 10:00AM until 6:00PM and on Saturday from 1:00PM until 6:00PM
(d)On the day after the child’s birthday, for a period of up to four (4) hours as agreed between the Father and the maternal grandfather, and failing agreement from 10:00AM until 2:00PM;
(e)On Father’s Day from 10:00AM until 4:00PM.
2.The time the child is to spend with his Father shall commence upon the Father enrolling in the ‘Taking Responsibility’ program and providing evidence of his enrolment to the Independent Child’s Lawyer.
3.The Father shall provide to the Independent Child’s Lawyer evidence of his completion of the ‘Taking Responsibility’ program within 24 hours of completion.
4.For purpose of [X] spending time with his Father, the Father is to collect the child at the commencement of his time with [X], and is to return [X] to the maternal grandfather’s residence or such other venue as may be agreed between the Father and the maternal grandfather at the conclusion of his time.
5.The Father shall have video communication with [X] through FaceTime or a similar platform each Thursday at some time between 5:00PM and 5:30PM, AND THE COURT NOTES THAT this orders does not contemplate that [X] must spend the full 30 minutes on FaceTime with the father.
The above orders are the most recent orders made regulating the father’s time with X.
The mother, father, and maternal grandparents attended interviews via videoconference with the Court Child Expert on 8 July 2021. The Court Child Expert also observed X with the maternal grandparents by video conference (in circumstance of the COVID-19 pandemic) on 30 July 2021. Her report dated 24 August 2021 was released to the parties on that same date (Exhibit 4).
On 5 August 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
This matter was placed in my docket subsequent to its transfer from the Federal Circuit and Family Court of Australia (Division 2) on 5 August 2022, and first came before me for case management on 21 February 2021. The father did not attend that hearing. The Independent Children’s Lawyer (“the ICL”) advised the Court that the father was incarcerated. Orders were made on that date:
(a)For the mother to file an Amended Initiating Application, and for the father and the maternal grandfather to file an Amended Response to an Initiating Application, each setting out with particularity the orders sought by the party;
(b)Directing the father to file and serve a Notice of Address for Service, and putting him on notice that if he failed to comply with the orders made on that date, the proceedings may be determined in his absence; and
(c)Listing the matter for further case management, including “the potential allocation of trial dates and possible summary determination of some parenting issues”.
In compliance with those orders:
(a)The father filed a Notice of Address for Service on 28 February 2023. He is now legally represented.
(b)The mother filed an Amended Initiating Application on 28 February 2023, broadly seeking final orders that she have sole parental responsibility for X (subject to consulting with the maternal grandfather), that X live with her and spend time with the maternal grandfather each alternate weekend and during school holidays, and that X spend no time with the father.
(c)The father filed a Response to the mother’s Amended Initiating Application on 6 March 2023, broadly seeking final orders that X continue to live with the maternal grandfather, spend time with the mother as agreed between her and the maternal grandfather, and spend time with the father increasing to each alternate weekend.
(d)The maternal grandfather filed a Response to the mother’s Amended Initiating Application on 6 April 2023 seeking final orders that he and the mother have “joint parental responsibility” for X, that “unless otherwise agreed” X continue to live with him and spend time with the mother as agreed or failing agreement for two nights each week, and that X spend time with the father supervised by the maternal grandfather. The maternal grandfather additionally sought an interim order that the orders regulating X’s time with the father made on 5 July 2021 be suspended.
THE LAW AND DISCUSSION
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting. Section 61DA 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 in this case having regard to the findings as to family violence.
Section 65D of the Act compels the Court to make such parenting orders that are considered proper. Section 60CA provides that 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. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
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. The primary considerations (under s 60CC(2)) are:
(a)The benefit to X of having a meaningful relationship with both of his parents; and
(b)The need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect X from harm than to the benefit to X of having a meaningful relationship with both parents.
In reaching my decision, I have considered all of the relevant sections of the Act including the primary and secondary considerations identified at s 60CC(2) and (3), albeit that I am not required as a matter of law to specifically address each such consideration.
The primary considerations
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant” (see McCall & Clark (2009) FLC 93-405). Each of the maternal grandfather and the mother agree that X’s relationship with his father is meaningful to X.
The relevant question contended by the mother, the maternal grandfather and the ICL in this matter is whether there is an unacceptable risk of physical, psychological and emotional harm in X spending time with the father. An evaluation is required as to how, taking into account and balancing all relevant factors, including that of risk, the prospective relationship between X and the father is going to be an advantage to the child.
While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 (“Isles”), are to be determined by reference to s 140 of the Evidence Act 1995 (Cth). The Full Court added that the assessment “of ‘unacceptable risk’ cannot be measured by the civil standard of proof”. Rather, I look to realistic possibilities (see Isles at [47], [49]–[51] and [81]).
The categories of risk to which X would be exposed if he were to spend time with the father arise from the father’s propensity to occasion serious and significant family violence, his inability to regulate his behaviour including his anger leading him into uncontrolled rage, his consumption of drugs and illicit substances and the consequent impacts of same and the extreme conflict and dysfunction between the parents, and as between the father and the maternal grandparents.
Throughout these proceedings, the mother has maintained her case that the father was emotionally and physically violent towards her throughout their relationship and that such conduct has persisted since separation. The Court Child Expert opined that:
86. [The mother] has made immensely serious allegations of family violence perpetrated by [the father]. Of significance, she claims that he has attempted to choke her and made threats to kill her, which would be considered high risk and potentially lethal. [The mother] has also depicted [the father] as wielding power and control over her, which if true, would place her and [X] at a significantly heightened risk of being further exposed to [the father’s] abusive behaviour. This is because perpetrators who use tactics of control, coercion and emotional manipulation often use their children as weapons of control, for example, by way of absconding with them and withholding them from their other parent’s care. Indeed, it would appear that [the father] has engaged in such behaviour previously, which is concerning and unfortunately provides no assurance that [X] would be safe in his father’s unsupervised care.
87. To his credit, [the father] has acknowledged that he perpetrated psychological abuse against [the mother], and he has expressed remorse for this, for which he is to be commended. He denies the allegations of physical abuse made by [the mother], claims that the parents were mutually psychologically abusive, and he depicted their relationship as highly dysfunctional. It cannot be known by the Family Consultant whether [the father] has been truthful about this, and this would be an important matter for the Court’s determination. It would be important to note, however, that it is relatively commonplace for perpetrators of family violence to concede to forms of less potent violence and deny perpetrating more serious abusive behaviour. If the Court determines that there is merit to [the mother]’ claims, there would potentially be serious risks to [X] in his father’s unsupervised care. This is because children who are exposed to family violence are vulnerable to a heightened level of risk of physical and psychological injury, and an array of concerning psychosocial problems, sometimes life-long.
The Family Report records that the mother and father were separated at the time that the mother learned she was pregnant with X. That separation followed by an incident of family violence perpetrated by the father against the mother, which prompted intervention by the Department of Communities and Justice. In mid-2018, a final ADVO was made for the mother’s protection regulating the father’s conduct for two years. The Family Report further records that after these proceedings commenced in 2019, the father was arrested and charged with breaching the ADVO then in-force to protect the mother. The circumstances around that alleged breach are unclear, although the father conceded to the Court Child Expert that he was at that time using illicit substances.
In mid-2022, a further provisional Apprehended Violence Order (“AVO”) was made against the father for the protection of the mother, restricting the father from contacting the mother except as agreed in writing or through a lawyer, arising from an incident on that date. The provisional AVO which is annexed to the father’s Amended Response to an Initiating Application filed on 6 March 2023 records the mother’s allegations made to police that the father attended her home, and following an argument, “held her on the bed and [struck] her four times […]”, and then later “pinned [the mother] to the ground… struck [her] with [an object]”. It further records that “police fear an escalation of violence between both parties”. The provisional AVO is listed for hearing at the Local Court in mid-2023.
In late 2022, a further provisional AVO was made against the mother for the protection of the father. No additional evidence is available as to the circumstances in which that order was made or whether it remains in force.
The father’s Response includes an additional provisional AVO made against the mother for the protection of the maternal grandparents and X in late 2022. That order arose from an argument between the mother and the maternal family at the maternal grandparents’ home in late 2022. That said, the AVO has not prevented the maternal grandparents from facilitating the mother’s time with X since it was made. It was not suggested by the ICL, the mother or the maternal grandfather that the AVO would impact on the mother spending time with X in the future.
In the Family Report, the Court Child Expert records the various risk factors to which she considered X may be exposed should they spend time with X. Those factors included that both parents conceded a history of illicit substance misuse and that the father conceded both historical and current alcohol misuse, and the concession of the father (at paragraph 55) that he had perpetrated family violence by way of psychological abuse upon the mother. The father denied in his interview with the Court Child Expert that he had been physically abusive to the mother save for in “self-defence”. He was unable to explain how his convictions for assault and assault occasioning actual bodily harm upon the mother could be reconciled with his reckless contention.
As to the father’s historic and continuing illicit drug misuse, the Court Child Expert noted that the father had engaged in drug and alcohol counselling, which she considered a “positive development”. The father asserted in his interview that he had not used an illegal substance since “mid-2019”. That said, there is no evidence as to whether that counselling is ongoing. Also of concern was that the ICL, mother and maternal grandfather each contended that the father’s last disclosed drug test result was dated 19 January 2021. That test is more than two years old. The election of the father not to engage in or disclose further drug testing sits uncomfortably with the clear opinions and recommendations of the Court Child Expert in the Family Report that:
85. If either parent were currently misusing alcohol or an illegal substance, or if they were to recommence this, their capacity to parent [X] would almost certainly be compromised. This is because there are extremely serious risks associated with alcohol and illegal substance misuse use and parenting, including the diminished ability to be emotionally available to one’s child and ensure that they are safe from immediate danger, unpredictable and sometimes psychologically abusive and violent behaviour, residential transiency, poor health and hygiene, and financial stress. It would therefore seem immensely important that there is ongoing assurance concerning the parents’ abstinence. As such it may be appropriate for both parents to develop an alcohol and drug testing regime with their respective doctors to mitigate any risks to [X] by way of the parents’ possible relapse. The parents sharing this information with the maternal grandparents would likely provide them with considerable reassurance and is recommended.
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107. That [the mother and father] develop a drug testing regime with their respective doctors to provide reassurance of possible relapse concerning alcohol and illegal substance misuse, and that they share this information with one another and the maternal grandparents.
The maternal grandfather said, and I accept, that the father has been volatile in his behaviour and has been irregular in attending spend time after the interim orders were made 5 July 2021. It appeared uncontroversial that for all but a few occasions as recorded later in these reasons, any time spent with the father throughout X’s life has been supervised if not professionally, then by a family member including the maternal grandparents. The evidence suggests that even with such supervision, the father has continued to behave aggressively and unpredictably in the presence of X, including on one occasion in January 2021 by parking his car in the maternal grandparents’ driveway and yelling abuse towards the maternal grandparents for 20 minutes.
There is little evidence to suggest that the father has engaged with the impact of his physical aggression, volatility and substance misuse. The Family Report at paragraph 96 records that the father had not yet completed the men’s behaviour course, Taking Responsibility, as he was required to do so by way of Order 2 made on 5 July 2021. The father told the Court Child Expert that he was on the waiting list for that course. It is not apparent that he has since completed the course. There is no evidence as to the father undertaking any process or therapy in recent times to assist him in regulating his behaviour. The most recent police material and charges imply that the father’s behavioural control and propensity for violence has remained wholly unchecked, and that he continues to exhibit self-destructive behaviour.
The time X has spent sporadic time with the mother and the father over the course of the litigation. Each of the mother and father experienced further challenges in their own lives over this time, which have affected their capacity to spend time with X. It is uncontroversial, as was acknowledged by the mother and maternal grandfather at the hearing before me, that the maternal grandparents remain X’s primary caregivers. It was the Court Child Expert’s opinion, which I accept, that:
90.… the maternal grandparents have demonstrated considerable child focus to ensure that [X’s] relationships with his parents are supported. Indeed, the Covid-19 global pandemic had a hand in potentially restricting some of the time [X] spends with his father, but to his immense credit, the maternal grandfather suggested and facilitated [X] spending time with [the father] outside of the contact centre multiple times, at least until his concerns about [the father’s] possible inappropriate behaviour compelled him to renege on this arrangement in early 2021.
The Court Child Expert further identified that X’s needs have been consistently met in the care of the maternal grandparents. She opined that they have admirably and capably cared for X by facilitating his medical and other needs, and that they are to be commended for their commitment to him.
Having regard to that expert evidence, I am satisfied and find that maternal grandparents have a positive and appropriate attitude to the parenting of X and have consistently exercised a capacity to promote his physical, emotional and psychological needs.
The father conceded in his Response to an Initiating Application filed 6 March 2023 that X should live with the maternal grandfather.
I accept the expert evidence of the Court Child Expert and find that X would possibly be negatively affected by his father’s complex, psychosocial problems. The Court Child Expert opined that it would be extremely important for the father to engage in a comprehensive psychological assessment and recommended that he would need to demonstrate that he was a safe and confident parent. She further recommended that the father attend upon a psychiatrist for a comprehensive psychiatric assessment and share any information about this with the mother and the maternal grandparents. The evidence does not suggest the father has undertaken such an assessment.
Historically, when the father’s presentation has been assessed by the maternal grandfather to be stable, he has facilitated very short periods of the father spending unsupervised time with X, usually around a structured activity, such as swimming lessons. This facilitation was short-lived and ceased upon the father refusing to comply with the maternal grandfather’s directions regulating the terms of the unsupervised time spent.
The father last spent time supervised by the maternal grandfather in late 2022, before he was incarcerated. He is currently living on the coast of NSW. His capacity to travel to Sydney is now subject to bail conditions. There is no evidence as to the father having any capacity at the current time to exercise supervised time with X.
The Court Child Expert records that mother’s awareness and appreciation of the support she receives from the maternal grandparents and the pivotal role they have undertaken in protecting X and promoting her relationship with him is growing. The mother has now undertaken and completed the “Brighter Futures” program and “Triple P” parenting course.
I find that the mother is doing the best she can to navigate her ongoing rehabilitation from her historic drug use. She now has a stable place of residence and employment. It was not controversial that she has complied with the drug testing regime pursuant to the interim orders and produced negative test results from that testing. The mother’s agreement to a continuation of a five-year random drug testing regime, with consequential impacts on her time spent with X, provides significant comfort as to the mother’s recognition of her historical problematic life-choices and will operate as an additional cross-check to mitigate risk to X.
The Family Report records (at paragraph 83) that the maternal grandfather commenced facilitating X spending unsupervised time with the mother in the second half of 2021. That time progressed well and has now developed into X spending some overnights each week with the mother. The progression of this time spent has flourished in the vacuum of the father’s presence since late last year when he was incarcerated. The maternal grandfather implicitly no longer contends that there is an unacceptable risk to X of spending time in the mother’s care for extended periods, by reference to him facilitating such time over the past few months and by reason of his agreement to the orders proposed in Exhibit 5.
I am satisfied and find that the mother and maternal grandparents have now established a relationship where they are able to effectively communicate to make arrangements for and promote the best interests of X. The fact that the mother and the maternal grandfather were able to reach an agreement as to the final parenting arrangements for X (as articulated in Exhibit 5) confirms that they each view ongoing conflict between them to be contrary to X’s best interests, and do not wish to continue this adversarial litigation process.
I accept the evidence of the Court Child Expert that the conflict between the maternal grandparents and the father, and the history of family violence between the mother and the father, leads to the conclusion that the father should not have parental responsibility for X. The making of an order investing the father with parental responsibility if X is to live with the maternal grandfather would all but certainly lead to further conflict and litigation, and would therefore not be in X’s best interests.
The evidence reflecting the current presentation of the relationship between the mother and the maternal grandmother as a co-operative one, and the positive direction pursued by the mother in her life over the course of these proceedings, I am satisfied that the proposed order that the mother and maternal grandfather equally share parental responsibility for X best promotes his interests.
I am not, however, satisfied that the proposal of the mother and the maternal grandfather that any time X is to spend with the father should be subject to their agreement is in X’s best interests. By way of the proposed orders, X will continue to live with the maternal grandfather. Historically the maternal grandfather has been the person who has regulated the time X spends with the father. As recorded in these reasons, in doing so the maternal grandfather implemented protective measures which successfully managed the unacceptable risk posed by the father in such a way that converted that risk to one that was acceptable and became of benefit to X (in that he was able to enjoy a relationship with the father). There is no suggestion that the maternal grandfather will not continue to appropriately manage any unacceptable risk posed by the father going forward.
On the other hand, the mother and the father’s relationship has historically been one defined by conflict and volatility. It is concerning that any regime which requires the mother to consent to X spending time with the father, when cast against her personal experiences of the father and possible attitudes towards him arising from those experiences, could become a potential source of conflict between the mother and the maternal grandfather. I find that it would not be in X’s best interests to disrupt the co-operative relationship that presently exists between them. Accordingly, I find that it would not be in X’s interest to depart from the historically beneficial regime of the maternal grandfather being the person who regulates the fact, terms and conditions of any time spent between the father and X.
I am confident, as supported the opinion of the Court Child Expert (at paragraph 83 of the Family Report), that the maternal grandfather will continue to ensure that X will have a relationship with the father if it again becomes appropriate. The maternal grandfather appropriately said to the Court Child Expert that he would not permit the father unsupervised time with X until he can determine that the father has insight into his behaviour and that he can adjust and control that behaviour. The terms of that future time spent will be dependent on circumstances and presentations as assessed by the maternal grandfather from time to time with the primary objective being to shield X from risk as he has done historically. This finding is consistent with the approach adopted by the maternal grandfather throughout the litigation to date.
The father’s disclosure failures during these proceedings, particularly as to his criminal charges, have created an absence of clarity as to the likelihood of him being further incarcerated and as to his continued participation in these proceedings. I weigh and take into account that the seriousness of the charges and the strength of the case he is to meet is reflected in part by the fact that he has taken some time to obtain bail pending trial.
The making of final orders as to the parenting of X now will not prevent the father from making such further application for parenting orders pursuant to the Rules, or in the event that he can establish a requisite change in circumstances, as he is advised. Such an application may or may not be made after the finalisation of his current serious criminal matters. These matters weigh in favour of a finalisation of the parenting proceedings.
The making of the orders sought will conclude the litigation for X’s benefit as recorded earlier in these reasons. It will permit the continued positive development in the relationship between the mother and her parents to continue absent the shadow of these adversarial proceedings and for them to get on with their lives cooperating with flexibility and focus for the benefit of X. The orders that shall be made progress and largely reflect the reality of the arrangements for X that have been stewarded in his interests by the maternal grandfather subsequent to the orders made in mid-2021, and broadly implement the recommendations of the Court Child Expert.
Accordingly, I shall make orders in the terms sought by the mother, the father, and the ICL, save as the order sought in relation to X’s time with the father. For the reasons given above, an order shall be made that X spend time with the father as agreed between the father and the maternal grandfather.
THE ORAL APPLICATION OF THE ICL FOR COSTS
Following the conclusion of the hearing on 18 April 2023, the ICL made an oral application for costs against the mother, father and maternal grandfather as she is required to do by the Act.
Section 117 the Family Law Act 1975 (Cth), which provides a general rule that each party to proceedings should bear their own costs. Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A). In the circumstances of a costs order sought by the ICL, s 117(3) and (4) have some application. They provide as follows:
117 Costs
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(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
While there was no evidence as to the maternal grandfather’s financial circumstances, he and the maternal grandmother have historically met all of the costs relating to X themselves, with little to no financial contribution by either of the mother or father. They have also privately met the costs of their legal representatives throughout these proceedings.
The mother submitted and I accept that her financial circumstances are modest. She has benefited from a grant of legal aid to fund her representation in these proceedings.
There is no evidence as to the father’s financial circumstances, save that he has just completed a period of incarceration. His Bail Acknowledgment (Exhibit 2) records that he was required to secure funds to meet bail in February 2022.
While the Court acknowledges the important role undertaken by the ICL in these proceedings, and in particular in reaching a final resolution of the proceedings in a child-focussed manner, I am not satisfied that an order of costs should be made against any of the parties in the proceedings. I find that it would be oppressive for the maternal grandfather to meet an order for costs, while satisfying ongoing obligations for the care and support of X. I am satisfied the mother does not have the capacity to meet a costs order, and in the circumstances, am not satisfied that the father would have such a capacity should an order be made.
The ICL’s oral application for costs as made by the ICL will be dismissed.
CONCLUSION
For all of the above reasons, I make orders as set out at the forefront of these reasons.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 April 2023
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