Tournier and Oxley

[2019] FamCA 614

FAMILY COURT OF AUSTRALIA

TOURNIER & OXLEY [2019] FamCA 614

FAMILY LAW – CHILDREN – final parenting orders – best interests – undefended hearing – where the father has not complied with trial directions – where the father has not filed material since November 2017 –  leave granted for the mother to proceed on an undefended basis – where the children have made disclosures to the mother that the father physically abused them – where the children have not spent time with the father for five and a half years – order that the mother have sole parental responsibility – order that the children live with the mother – order that the children spend no time or communicate with the father.

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

Family Court Rules 2004 (Cth) rr 11.02, 11.06

Line & Line [1996] FamCA 145; (1997) FLC 92-729
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT: Ms Tournier

RESPONDENT: Mr Oxley

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8558 of 2017

DATE DELIVERED: 2 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fiskin

SOLICITOR FOR THE APPLICANT: Elvin Lawyers

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith, Victoria Legal Aid

Orders

1. That leave be granted for this matter to proceed on an undefended basis.

2. That the children X born … 2007 and Y born … 2009 live with the mother.

3. That the mother have sole parental responsibility for making decisions regarding the children’s long term care, welfare and development.

4. That for the purpose of the exercise of parental responsibility pursuant to order 3 hereof regarding the children’s health (save in the event of a medical emergency), education, religion, change of name or living arrangements:-

   (a)    the mother provide to the father not less than 14 days prior to exercising that responsibility, notice in writing by email of her proposed decision;

   (b)    the mother not implement such decision until the expiration of 14 days after the service on the father of written notice pursuant to sub-paragraph (a) hereof;

   (c)    the father be permitted to provide to the mother a written statement as to his views regarding the mother’s proposed decision;

   (d)    the mother notify the father of the decision made regarding the exercise of parental responsibility as soon as practicable and no later than seven days after the implementation of such decision.

5. That the mother and the father keep each other informed of their current email address and notify of any change to that address within seven days of such change.

6. That if either of the children are admitted to hospital or suffer a serious illness or injury that requires urgent or specialist medical treatment, the mother will notify the father as soon as practicable, and advise him of the child’s recovery.

7. That within 28 days the mother nominate a post office address to which the father may send correspondence, that address to be used by the father only for the purposes of him forwarding to the children a card and gift on the following occasions:-

   (a)    their birthday; and

   (b)    Christmas.

8. That the mother be permitted to inspect any card or gift forwarded to the children or either of them by the father pursuant to order 7 hereof and in the event that she deems such card or gift inappropriate, she is not required to pass such items to the children.

9. That if either of the children expresses a wish to communicate with the father, the mother will reasonably facilitate this by letter/card/gift/email and/or telephone call and otherwise no time or communication between the father and the children.

10. That the father is at liberty to obtain from the children’s school information including school reports and photographs, at his cost, if any, concerning the children’s social and academic progress which the school provides for release to parents.

11. That the mother and the father be permitted to provide a sealed copy of these orders to any school that the children (or either of them) may attend from time to time.

12. That the Watch List Order made 3 November 2017 be discharged AND IT IS REQUESTED that the Australian Federal Police remove the names of the children X born … 2007 and Y born … 2009, both female, from the Airport Watch List.

13. That a sealed copy of this order be provided forthwith to the Marshal of the Family Court of Australia and the Commissioner of the Australian Federal Police and the mother be permitted to provide a sealed copy of these orders to the Australian Federal Police by email … .

14. That the mother is permitted to take the children outside the Commonwealth of Australia for the purpose of an overseas holiday subject to:-

    (a)    The mother providing the father with 28 days written notice by email or as soon as practicable of the proposed travel including dates and locations of travel; and

    (b)    The mother providing the father by email with a brief itinerary including copies of return airfares.

15. That all previous parenting orders be discharged.

16. That the appointment of the Independent Children’s Lawyer is discharged.

17. That all extant applications be otherwise dismissed.

18. Pursuant to s 65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tournier & Oxley 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 MELBOURNE

FILE NUMBER: MLC 8558 of 2017

Ms Tournier

Applicant

And

Mr Oxley

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were commenced by the applicant mother in the Federal Circuit Court on 22 August 2017. In her application the mother seeks orders that she have sole parental responsibility for the parties’ two children, aged 10 and 11 and that they live with her and spend no time with the father.

2. The mother filed a Notice of Risk contemporaneously with her Initiating Application. The mother alleges:-

   The children are at risk of both physical violence and sexual abuse if they spend time with the Respondent without supervision, consistent with previous reports the children have made to me.

3. The father filed a Response to Initiating Application on 1 November 2017 seeking orders for equal shared parental responsibility, that the children live with the mother and spend time with him on alternate weekends.  He too filed a Notice of Risk which alleges the children are at risk of abuse:-

   If the mother is permitted to restrain the children from their family connections, friends and culture.

4. The proceedings were transferred to the Family Court of Australia on 3 November 2017.

5. Since November 2017, the father has failed to file any further material in these proceedings, despite orders for him to do so on 25 February 2019 and 3 May 2019. On the day of the final hearing the father failed to appear, or have legal representation appear on his behalf, despite orders requiring him to do so.

6. Due to the father’s lack of engagement in these proceedings and his failure to comply with orders, the mother seeks to proceed with her application for final parenting orders on an undefended basis. These are my Reasons for Judgment with respect to the mother’s application.

Background

1. The mother is aged 34 and is self-employed. The mother lives with the children in Melbourne.

2. The father is aged 38 and currently resides in Sydney.

3. The parties married in Sydney in 2005 and separated under one roof in March 2012.  The parties physically separated in October 2012.

4. There are two children of the relationship, X who is aged 11 and Y who is aged 10. X has been diagnosed with High Functioning Autism Spectrum Disorder. Both children are currently attending Suburb B Primary School.

5. The children have spent no time with the father since January 2014.  They last communicated with the father by telephone in July 2018.

6. In April 2013, the parties entered into a parenting plan, which provided for:-

   ·    the mother and the children to relocate to Canberra as and from July 2013;

   ·    the father to spend alternate weekend time and school holiday time with the children.

   The mother facilitated the father’s time with the children as agreed, until January 2014.

7. The mother’s evidence is that she terminated the father’s time with the children for protective reasons, after the children allegedly made disclosures to her about sexual and violent behaviour perpetrated by the father against them whilst they were in his care. Further, the mother deposes that the children exhibited sexualised behaviours after spending time or communicating with the father. As a result, the mother unilaterally suspended the father’s time with the children. The children have not seen the father since January 2014.

8. The mother and the children moved to Melbourne in or around December 2015. The mother deposes the father made no objection to her relocation to Melbourne with the children.

9. In February 2019 orders were made in chambers listing the matter for a First Day hearing.  Directions were made for the parties to file amended applications and a Case Summary.  The father failed to comply with those orders. No documents were filed by him or on his behalf.

10. On 3 May 2019, being the First Day hearing, the father did not appear.  Notwithstanding that there was no application by him to attend the hearing electronically, arrangements were made to facilitate the father appearing by telephone during that hearing to enable him to participate.

11. That day, orders were made providing for all extant applications to be adjourned for a final hearing before me on 13 June 2019 as a one day matter (“May 2019 Orders”).  Further orders were made as follows:-

    ·    The father file an Amended Response to Initiating Application and any trial affidavits by 31 May 2019.

    ·    The father personally attend the final hearing on 13 June 2019, or have a lawyer attend in his place.

    ·    In the event the father fails to comply with those orders, the mother is given leave to seek to proceed with her application for final orders on an undefended basis.

12. The father failed to comply with the May 2019 Orders; he filed no documents in compliance with those orders and did not appear at the final hearing on 13 June 2019.

Should the mother have leave to proceed on an undefended basis?

1. This matter came before me for a final hearing on 13 June 2019 as a result of trial directions made on 3 May 2019. At the commencement of the hearing the father was called in the Court precincts.  He did not respond to the call. 

2. As a result of the father’s failure to personally attend, or engage legal representation to attend on his behalf, the mother sought that the matter proceed on an undefended basis.  It is submitted on behalf of the mother that in circumstances where the father has failed to file any material in compliance with orders made 25 February 2019 and 3 May 2019 and failed to appear at the hearing, the matter should proceed in his absence.  That application is supported by the Independent Children’s Lawyer (“the ICL”).

3. The mother relied upon the affidavit of Ms E filed 12 June 2019. In that affidavit Ms E deposes that on 20 May 2019, the mother’s lawyers forwarded to the father by express post sealed copies of the mother’s Second Amended Initiating Application and her trial affidavit, both filed 20 May 2019.  Annexed to her affidavit is the online delivery receipt which confirms that those documents were delivered to the father on 23 May 2019.  

4. The postal address to which Ms E forwarded the documents is identical to that listed in the Notice of Ceasing to Act filed by the father’s previous lawyers on 18 April 2019.  Further, that is the address the father confirmed as his address for service during the hearing before me on 3 May 2019.

5. Ms E further deposes that the mother’s lawyers forwarded an email to the father on 20 May 2019 which attached the mother’s trial documents. The email address deposed to by Ms E is identical to that listed in the Notice of Ceasing to Act filed by the father’s previous lawyers on 18 April 2019, and also is that which I confirmed orally with the father at the hearing on 3 May 2019.

6. Counsel for the mother submitted to the Court that as a result of the receipt of these documents, the father is on notice of the orders the mother is seeking, as well as the fact that she intends to seek to proceed on an undefended basis in the event of his non-attendance at Court.

7. Counsel for the mother further submitted that the father was placed on notice of the mother’s intention to proceed undefended as a result of his participation in the First Day hearing on 3 May 2019 via telephone. On that day I confirmed with the father that if he or his lawyer did not appear at the hearing on 13 June 2019, the mother would seek to proceed on an undefended basis. This was reflected in the orders made by me on 3 May 2019, which provide as follows:-

   4.    That by 4.00 pm on 31 May 2019 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

   …

   13. That the respondent or his lawyer personally attend at the hearing listed on 13 June 2019.

   14.  That in the event of the respondent’s failure to comply with orders 4 or 13 hereof, the applicant have leave to seek to proceed with her application for final orders on an undefended basis.

8. It was submitted that the father has failed to take any steps in these proceedings for over a year. Counsel for the mother submitted that in circumstances where the father has filed no material in support of his Response since 1 November 2017, pursuant to Rule 11.06 of the Family Court Rules 2004 (Cth) (“the Rules”) the Court should dismiss the father’s Response for want of prosecution. 

9. Rule 11.06 provides the following:-

   (2)  If a party has not taken a step in a case for one year, the court may:

   (a)   dismiss all or part of the case; or

   (b)  order an act to be done within a fixed time, in default of which the party’s application will be dismissed.

   (3)  The court must not make an order under sub rule (1) unless, at least 14 days before making the order, the court has given the parties written notice of the date and time when it will consider whether to make the order.

   …

10. In the alternative, it was submitted that the mother should be granted leave to proceed on an undefended basis pursuant to Rule 11.02, which provides:-

    (1)  If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

    Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).

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

    (a)   dismiss all or part of the case;

    (b)  set aside a step taken or an order made;

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

    (d)  make any of the orders mentioned in rule 11.01;

    (e)  order costs;

    (f)   prohibit the party from taking a further step in the case until the occurrence of a specified event; or

    (g)  make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

    Note: This list does not limit the powers of the court. It is an expectation that a non-defaulting party will minimise any loss.

11. The mother submitted that as a result of the father’s failure to engage in the proceedings since November 2017, or in the alternative the father’s failure to comply with orders of this Court on 25 February 2019 and 3 May 2019, the matter should be allowed to proceed on an undefended basis.

12. Having regard to the evidence of Ms E and the orders made by me at the hearing on 3 May 2019 at which the father appeared by telephone, I am satisfied that the father had notice of the hearing listed on 13 June 2019 and of the mother’s intention to seek to proceed on an undefended basis in the event of his non-compliance with court orders. I am also satisfied, having regard to Ms E’s affidavit, that the father has had notice of the orders sought by the mother, as provided in her Second Amended Initiating Application filed 20 May 2019.

13. At the final hearing, a minute of proposed orders sought by the ICL and supported by the mother was provided to the Court (Exhibit ICL-1). Counsel for the mother submitted that whilst the proposed orders differed slightly from the orders sought in the Second Amended Initiating Application served upon the father, the orders proposed by the mother and the ICL are in fact more favourable to the father than previously sought, as they make provision for the father to receive additional information regarding the children. As a result both the mother and the ICL sought that the application for orders in those terms proceed on an undefended basis in circumstances where it was said there was no prejudice to the father if orders were made in the terms sought by the ICL.  I accept that submission.  The ICL’s proposed orders were served on the father by way of email on the evening of 12 June 2019.   

14. Having regard to all of the above matters, I am satisfied that the father has been afforded procedural fairness; he has had notice of the hearing, the orders sought by the mother and the ICL and of the evidence relied upon by the mother in support of her application.  In circumstances where the father has not complied with procedural orders made by me on both 25 February and 3 May 2019, has filed no substantive material in the proceedings since 1 November 2017 and does not appear at the final hearing, I am satisfied that the mother should have leave to proceed with her application on an undefended basis.

Documents relied upon and orders sought

1. The mother sought to rely on the following documents in support of her application for final orders:-

   ·    Second Amended Initiating Application filed 20 May 2019;

   ·    Affidavit of the mother filed 21 May 2019;

   ·    Affidavit of service of Ms E filed 12 June 2019; and

   ·    Letter from the Department of Health and Human Services dated 1 November 2017 (Exhibit M-1).

2. The mother originally sought orders as provided in her Second Amended Initiating Application filed 20 May 2019. However, on the day of the final hearing the mother supported the orders sought by the ICL in the Minute of Orders tendered at the hearing (Exhibit ICL-1). The orders sought by both the ICL and the mother are as follows:-

   1.   Leave be granted for this matter to proceed on an undefended basis.

   2.   The children … live with the mother.

   3.   The mother have sole parental responsibility for the children.

   4.   Prior to making any decision pursuant to order 3 … the mother provide to the father not less than 14 days prior notice in writing by email of her proposed decision and not implement such decision until the expiration of 14 days to enable the father to provide a written statement concerning the proposed decision. The mother is to notify the father of the decision made regarding the exercise of parental responsibility as soon as practicable and no later than seven days.

   5.   The mother and the father keep each other informed of their current email address and notify of any change within seven days.

   6.   If either of the children are admitted to hospital or suffer serious illness/injury requiring urgent or specialist medical treatment, the mother will notify the father as soon as practicable, and advise him of the child’s recovery.

   7.   That within 28 days the mother nominate a post office address to which the father may send correspondence, that address to be used by the father only for the purposes of him forwarding to the children a card and gift on the following occasions:

   a.Their birthday; and

   b.Christmas

   8.   That the mother be permitted to inspect any card or gift forwarded to the children or either of them by the father pursuant to order 7 hereof and in the event that she deems such card or gift inappropriate, she is not required to pass such items to the children.

   9.   If either of the children expresses a wish to communicate with the father, the mother will reasonably facilitate this by letter/card/gift/email and/or telephone call and otherwise no time or communication between the father and the children.

   10. The father is at liberty to obtain from the children’s school information including school reports and photographs, at his cost, if any, concerning the children’s social and academic progress which the school provides for release to parents.

   11. The mother and the father be permitted to provide a sealed copy of these orders to any school that the children (or either of them) may attend from time to time.

   12. The Watchlist Order made 3 November 2017 be discharged…

   …

   14. The mother is permitted to take the children outside the Commonwealth of Australia for the purpose of an overseas holiday subject to:

   a.The mother providing the father with 28 days written notice by email or as soon as practicable of the proposed travel including dates and locations of travel; and

   b.The mother providing the father by email with a brief itinerary including copies of return airfares.

   15. All previous parenting orders be discharged.

1. The ICL relied upon the Minute of Orders tendered during the hearing (Exhibit ICL-1).

Legal Principles 

1. Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the primary and additional considerations in detail below.

4. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.

5. For the reasons set out below I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility in this case. As a result of that finding, the Court is not required to consider whether the children spending equal time or substantial and significant time with each parent would be in their best interests and whether it is reasonably practicable to do so (s 65DAA of the Act).

6. The mother’s evidence, as contained in her trial affidavit filed 12 June 2019, is unchallenged.  Findings are made on the balance of probabilities having regard to the evidence before the Court.  In what follows, statements of fact constitute findings of fact.

7. The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents.  The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.

2. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-

   119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...

   …

   122.    In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

   (Original emphasis)

3. The children in this matter have not spent time with the father since January 2014, when they were aged six and four respectively.  Although the father has filed a Response in these proceedings, he has not participated in them in any meaningful way since that document was filed in November 2017.  There has been only sporadic communication between the children and the father since January 2014.

4. In circumstances where the father has elected not to participate in the final hearing and has filed no documents in support of his Response to Initiating Application in accordance with trial directions, there would appear to be little utility in the Court attempting to frame orders for the father to spend time and communicate with the children.  Given the father’s lack of engagement in the Court process to press for orders enabling him to have a meaningful relationship with the children, the Court cannot be satisfied that there is any benefit to them in attempting to frame orders to facilitate the father’s time and communication with them.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

1. The mother alleges that the children have been exposed to physical and sexual abuse at the hands of the father.  It was as a result of disclosures made by the children to the mother that the mother ceased making the children available for time with the father.  In addition to the allegations of the father’s abuse of the children, the mother deposes that she too was a victim of family violence at the hands of the father.  She alleges that this behaviour commenced following the parties’ marriage. 

2. At paragraph 18 of her trial affidavit the mother deposes that she was subjected to physical violence including being pushed into walls.  At paragraph 18(d) of her trial affidavit the mother deposes to an incident that occurred at the time of the parties’ separation on 28 October 2012.  On that occasion the mother alleges the father threatened self-harm with a kitchen knife and also threatened the mother with the knife.  The police were called to the home on that occasion and the father was removed and taken to hospital for assessment by a mental health team.  The father was charged with and convicted of assault in relation to that incident. 

3. On 11 December 2012 a final apprehended violence order was made on behalf of the mother against the father.  The children were also named as protected persons under that order which continued for a period of 12 months.

4. At paragraph 24 of her trial affidavit, the mother deposes that in February 2014, following a period of extended time with the father during the summer holiday period, both children disclosed that they had been subjected to physical violence at the hands of the father.  Both children disclosed that they had been hit by the father over the head and over their bodies.  At paragraph 28 of her trial affidavit the mother deposes as to disclosures made by X that the father had made she and her sister touch the father’s penis. 

5. In addition, the mother deposes as to her observations of the children’s sexualised behaviour following the holiday period with the father.  She deposes that she found a number of images on X’s iPad showing the girls naked and in sexual poses.  The mother subsequently deleted those images. 

6. At paragraph 32 of her trial affidavit the mother deposes that on 29 December 2014 X made a further disclosure that the father had made the children touch his penis but that she did not know why.

7. The children’s disclosures were reported by the mother to New South Wales’ police and child protection services in Canberra.  Following that report, the children were interviewed by both police and child protection.  Both children made disclosures to those authorities that they had been hit by the father and X made some disclosures about being asked to touch the father’s penis.

8. The Department of Health and Human Services (“DHHS”) has prepared a report dated 1 November 2017 following receipt of the Notice of Risk filed on behalf of the mother.  The Department elected not to intervene in these proceedings. 

9. In its report to the Court in response to the Notice of Risk (Exhibit M-1), the Department noted the children’s position with respect to their parents as follows:-

   Both [Y] and [X] spoke highly positively of their mother, [Ms Tournier] and had both reported feeling safe in her care and raised no concerns.  Both of the children spoke of physical abuse perpetrated by their father when they were in his care and reported being hit with a hair brush, being locked in a dark room as punishment, and spoke of feeling generally not cared for.  Both [Y] and [X] clearly advised the writer that they did not wish to have any contact with [the father] and that they would both like their mother to have full custody of them.

10. The mother’s evidence as to the physical abuse perpetrated against her and the children by the father is unchallenged.  So too is her evidence as to the alleged disclosures by the children that they have been subjected to sexual abuse at the hands of the father.  The report of DHHS (Exhibit M-1) and particularly the views expressed by the children during interview for the preparation of that report, support the mother’s evidence as to the father perpetrating physical abuse against the children. 

11. The father has filed no trial affidavit material in response to that of the mother’s.  Having regard to the mother’s unchallenged evidence and the report of DHHS, I am satisfied that the children have been subjected to physical abuse at the hands of the father.  Further, I am satisfied having regard to that finding that there is a need to protect the children from harm if placed in the father’s care. 

12. I must now consider the additional considerations.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. As noted above, both children expressed to DHHS their view that they would like to continue living with the mother and not have any time with the father.  Further, the Department workers reported their view that the children’s views and wishes should be taken into account, as the children are of an age where they are able to articulate their wishes and concerns. 

Section 60CC(3)(b) the nature of the relationship of the child with:

(a)      each of the child’s parents; and

(b) other persons (including any grandparent or other relative of the child);

1. The mother has been the children’s primary care-giver since the parties’ separation in March 2012.  The children have spent no time with the father since January 2014. 

2. At interview with DHHS workers, the children were reported to speak highly and positively of the mother and reported feeling safe in her care. 

3. In her trial affidavit, the mother deposes as to her efforts to ensure the children continue to have a relationship with members of both the paternal and maternal families.  At paragraph 57 of that affidavit, the mother deposes that the children regularly visit their maternal grandfather and step-grandmother in Canberra and that those visits are reciprocated with the grandparents visiting the children in Melbourne.  In addition the children enjoy regular video calls with their grandparents.  Similarly, the children have a close relationship with other members of the maternal family, including aunts and uncles who also live in Canberra. 

4. As to the paternal family, the mother deposes at paragraph 59 of her trial affidavit that she has travelled to Sydney to spend time with them as recently as April 2019 when she facilitated visits with the paternal grandmother, the paternal aunt and uncle and the children’s cousins.  The mother deposes that the members of the paternal family have supported the mother in ensuring that the children are not brought into contact with the father when spending time with the paternal family and that the children have had the benefit of feeling part of the extended paternal family. 

5. I accept the mother’s unchallenged evidence as to her commitment to ensure the children maintain their relationships with members of the maternal and paternal families.

Section 60CC(3)(c) the extent to which each of the child’s parent 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;

Section 60CC(3)(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;

1. The father has spent no time with the children since January 2014 and has elected not to participate in the final hearing regarding the children’s parenting arrangements.  As a result of the father’s disengagement from the children, the mother has been solely responsible for making decisions regarding the children’s day-to-day and long term care, welfare and development.

2. The mother deposes in her trial affidavit that the children’s telephone communication with the father has been sporadic and not without difficulty. 

3. At paragraph 41(i) of her trial affidavit, the mother deposes that she attempted to arrange telephone communication between the children and the father commencing June 2018.  She deposes that after the first phone call, X informed her that she did not wish to speak with the father.  Further, she deposes that although she attempted to encourage X to communicate with the father for some weeks her efforts were relatively unsuccessful. 

4. In July 2018 the mother observed that Y’s anxiety had increased.  At that time Y requested the mother arrange for her to speak with a school counsellor.  That counsellor referred Y to a private psychologist, Ms C.  Following attendance upon Ms C there was a recommendation by Ms C that the mother cease telephone communication between Y and the father.  As a result there has been no further telephone communication between the children and the father.

5. The father pays child support to the mother in accordance with a Child Support Assessment.  There are no outstanding arrears of child support, albeit that arrears have previously been paid from funds otherwise payable to the father from his taxation refund. 

6. Otherwise, the mother is solely responsible for the children’s financial support. 

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The orders sought by the mother represent a continuation of the arrangements which have been in place since January 2014.  I am satisfied that such arrangements are appropriate and in the children’s best interests in circumstances where the father does not pursue his application to spend time with the children. 

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. The children spend no time with the father.  That circumstance will continue upon the finalisation of these proceedings. 

Section 60CC(3)(f) the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. The mother has been the sole carer of the children since January 2014.  The mother deposes that the children both attend Suburb B Primary School and are progressing well. 

2. In December 2017, X was assessed as meeting the criteria for high-functioning autism spectrum disorder.  The mother deposes as to the appointments she arranged for X at that time which culminated in that assessment.  She further deposes as to X’s engagement with the D organisation which provides her with specialised support in relation to her autism. 

3. The mother also deposes as to Y’s progress.  She deposes that Y has exhibited signs of anxiety and the mother has sought treatment for those symptoms for Y, both from a general medical practitioner as well as a psychologist. 

4. Having regard to the mother’s evidence, I am satisfied that she has demonstrated a strong commitment to her role as the children’s primary care-giver.  She has been pro-active in ensuring that the children’s physical, emotional and intellectual needs are met. 

5. The report from DHHS notes that at that time, the mother presented as balanced, appropriate, well-mannered and engaging.  The Department had no concerns in relation to her presentation or as to the home environment.  Further, the mother was assessed as acting protectively and as being capable of effectively and appropriately meeting the children’s needs.

6. I am satisfied, having regard to that report and the mother’s evidence that the mother has and will continue to provide for the children’s physical, emotional and intellectual needs.  I am also satisfied that the mother has demonstrated a strong commitment to her parental responsibilities. 

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. The paternal family is of Country G heritage.  The mother deposes that there is a planned family reunion for the paternal family in Country G in 2020 which the children have been invited to attend.  The mother seeks orders that will permit her to travel to Country G with the children to enable them to attend this event. 

2. Having regard to the mother’s evidence, I am satisfied that she is committed to ensuring the children have an on-going connection with their paternal family and thus the opportunity to learn more of the culture and traditions associated with their Country G heritage.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This consideration is not relevant to the matter.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

Section 60CC(3)(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, the order;

(v)any other relevant matter;

1. As noted earlier, at the time of separation, the mother sought and obtained a family violence intervention order against the father in which both she and the children were named as protected persons. 

2. In December 2018 the mother again applied for a family violence intervention order against the father.  That application was made as a result of the mother receiving numerous telephone calls from the father over a two-week period in November 2018.  The mother also received several text messages from the father during that period.  As a result of that application, on 1 April 2019 a final intervention order was made against the father which will continue for a period of five years.  The children are also named as affected family members on the order.  The father did not attend the hearing at which that intervention order was made. 

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. These proceedings have been on foot since 2017.  The children have been subjected to an interview by child protection workers as a result of disclosures made by them following the parties’ separation. 

2. Having regard to the history of the proceedings and in circumstances where the father has elected not to participate in the Court process for an extended period, I am satisfied that the children’s best interests will be served by final orders that will ensure certainty and stability with respect to future parenting arrangements.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

1. There are no other relevant facts or circumstances.

Conclusion

1. The mother seeks orders that she have sole parental responsibility for the children.  That application is supported by the ICL.

2. In his response filed 1 November 2017 the father sought that the parties have equal shared parental responsibility.  However, given the father’s disengagement with the proceedings, in my view the father’s application must fail.

3. The father’s failure to comply with trial directions results in a circumstance where the mother’s evidence is unchallenged. Given that the father has spent no time with the children since January 2014 and the mother has been solely responsible for all aspects of their day-to-day care, welfare and development since that time, in my view it would be contrary to the children’s best interests were there to be orders that the parties have equal shared parental responsibility. Having regard to that history, coupled with the fact that there is a current family violence order against the father protecting the mother and the children, I am satisfied that pursuant to s 61DA(4) of the Act the presumption in favour of equal shared parental responsibility is rebutted.

4. It was submitted on behalf of the mother that since January 2014, the father has effectively relinquished parental responsibility to the mother.  Given his absence from the children’s life since that time, I accept that submission.  The children’s reality is that every aspect of their life is attended to by the mother.  I am satisfied having regard to the evidence before the Court that the mother should continue to have that responsibility, and that the children should continue to live with her.  In my view, it is in the children’s best interests that there be no order for the father to spend time or communicate with them, given his lack of engagement with them.

5. The mother and the ICL both propose that the father be given notice of any decisions proposed to be taken by the mother in the exercise of parental responsibility.  It is to the mother’s credit in my mind that she proposes that the father have the opportunity to participate and contribute to decisions regarding the children’s long-term care, welfare and development.  Although the mother will have ultimate decision-making responsibility, the orders as proposed by her will afford the father the opportunity to contribute to that decision-making process should he elect to do so.  I am satisfied that such order is appropriate and in the children’s best interests.

6. The mother also proposes that each party keep the other informed of their current email address to ensure that they have the ability to communicate with each other regarding the children’s welfare.  Again, I am satisfied that such order is in the children’s best interests.

7. It is also proposed by the mother and the ICL that the mother provide the father with notice in the event that the children suffer serious illness or injury.  Again this is a sensible and appropriate measure to ensure that the father has the opportunity to be informed as to the children’s welfare.

8. It is also proposed by the mother and the ICL that the father have the ability to communicate with the children by card or gift on their birthdays and at Christmas.  I am satisfied that that order is in the children’s best interests.  It will afford the father an opportunity to continue to maintain lines of communication between he and the children.  The mother and the ICL also propose that the father have the opportunity to obtain from the children’s school information as to their progress.  Again, I am satisfied that such order is in the children’s best interests.  In the event that the children seek to communicate with the father, the mother proposes to facilitate such communication which I am satisfied is appropriate.

9. The mother also seeks the opportunity to take the children outside of the Commonwealth of Australia. In order to facilitate that, the mother seeks an order that the existing Watch List Order be discharged.  The mother deposes in her trial affidavit as to historical difficulties she has had in securing the father’s consent to overseas travel.  She deposes as to a school excursion overseas the children were invited to participate in in 2017.  The mother deposes as to difficulties she had in securing the father’s consent to obtaining a passport for the children.  Notwithstanding assurances given by the father that he would communicate with the children’s teachers regarding the necessary passport application, that did not occur.  As a result of the father’s failure to execute the passport applications, the children did not travel overseas with the school. 

10. The mother deposes that the children were extremely disappointed to have missed that opportunity.  Ultimately, the mother obtained orders from the Court on 3 October 2017 which enabled her to obtain passports for the children.  There is a current Watch List Order that was made by the Court on 3 November 2017.  That order is due to expire on 3 November 2019. 

11. The mother deposes that she seeks the removal of the Watch List Order and permission to travel to ensure that the children are able to travel overseas for the purposes of school excursions.  She deposes that there is another trip overseas planned for X’s school in 2021.  Further, she deposes the secondary school at which Y will attend has a range of overseas travel experiences available to its students.

12. The mother also deposes that she is currently employed by a cruise ship operator and as such has been offered the opportunity to travel on a cruise with the children at no cost.  She hopes to take up that travel opportunity with the children.  The mother also proposes to travel to Country G with the children for the reunion with the paternal family. 

13. The father puts no material before the Court in opposition to that part of the mother’s application. 

14. In the decision of Line & Line [1996] FamCA 145; (1997) FLC 92-729 the Full Court identified matters relevant to the exercise of the Court’s discretion as to whether or not overseas travel as proposed by the mother should be permitted. Those matters include:-

    ·    The degree of risk that the mother, once permitted to leave Australia will not return.  In assessing that risk, consideration of:-

    (a)Whether the mother has continuing ties with Australia;

    (b)The existence and strength of possible motives for the mother not to return to Australia;

    (c)The existence and strength of motives to remain overseas;

    ·    Whether security has been offered;

    ·    The parties’ financial circumstances, including hardship suffered by the mother by the imposition of security as compared with the father’s hardship if security is fixed at a lesser amount;

    ·    Whether the proposed destination is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).

15. I am satisfied that the mother has close and enduring ties to Australia.  She is an Australian citizen and has employment in Australia.  Both children of the relationship were born here.  The mother’s evidence is that the children are settled at their schools and progressing well.  The maternal family is based in Canberra.

16. I am satisfied that the mother is bona fide as to the bases upon which she seeks orders permitting the children to travel overseas.  Further, I am satisfied that there are significant benefits to the children in such travel, particularly in the context of travel such as had been proposed in 2017 when the children were to travel overseas with a school group.  In my view, it is in the children’s best interests that they are afforded the opportunity to undertake such travel with their school.  I am also satisfied that it is in the children’s best interests that they have opportunities such as is proposed to attend a family reunion with the paternal family in Country G.  Therefore, having regard to those matters I am satisfied that it is appropriate and in the children’s best interests that the Watch List Order be discharged and that there be orders permitting the mother and the children to travel outside the Commonwealth of Australia. 

17. Therefore the orders I make appear at the commencement of these reasons.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 September 2019.

Associate: 

Date:  2 September 2019