Vaughn and Douglas
[2011] FMCAfam 773
•18 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAUGHN & DOUGLAS | [2011] FMCAfam 773 |
| FAMILY LAW – Father restrained from contacting the mother or child – serious acts of violence and abuse – order for sole parental responsibility – violence and abuse precipitated by regular drug use. |
| Family Law Act 1975, ss.68B, 60B, 61DA, 4, 60CA, 65DAA, 60CC, 13C Births, Deaths and Marriages Act 1995, ss.28, 29 International Convention on the Rights of the Child |
| B & B (1993) FLC 92 – 357 Pitken & Hendry [2008] FamCA 186 Merryman (1993) 116 FLR 87 Jaeger (1994) FLC 92-492 Blanch & Crawford (1999) FLC 92-837 A and A (1998) FLC 92-800 M & M (2000) FLC 93-006 Oakley & Cooper [2009] FamCAFC 133 |
| Applicant: | MS VAUGHN |
| Respondent: | MR DOUGLAS |
| File Number: | PAC 1507 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 18 July 2011 |
| Date of Last Submission: | 18 July 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 18 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | O’Connell Solicitors |
ORDERS
Ms Vaughn shall have sole parental responsibility for the child, [X] born [in] 2010.
[X] shall live with her mother.
Pursuant to s.68B of the Family Law Act 1975 (the Act) [X]’s father,
Mr Douglas, shall be and his hereby restrained from:(a)Contacting Ms Vaughn or [X] by any means whatsoever, including through third parties and shall further be restrained from endeavouring to have any third person or agency contact Ms Vaughn on his behalf or for any purpose.
(b)Approaching within one kilometre of Ms Vaughn and/or [X].
(c)Attending at any place of residence, employment or education of Ms Vaughn or [X].
(d)Coming into contact with, or attempting to come into contact with [X] at any time or in any fashion save as may be authorised by subsequent orders made under the Act.
Ms Vaughn shall be and is hereby authorised to do all things, sign all documents and give all consents and authorities necessary to cause and effect a change of [X]’s surname for all purposes, including as recorded upon her birth certificate, from Douglas to [C].
Pursuant to ss.28 and 29 of the Births, Deaths and Marriages Registration Act 1995 the Registrar of the Registry of Births, Deaths and Marriages, New South Wales is requested to give immediate effect to any application for change of name as may be lodged by [X]’s mother and noting that she is the sole person with parental responsibility for [X].
IT IS NOTED that publication of this judgment under the pseudonym Vaughn & Douglas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1507 of 2011
| MS VAUGHN |
Applicant
And
| MR DOUGLAS |
Respondent
REASONS FOR JUDGMENT
Before the court today is an application for parenting orders with respect to a child [X], who is very young, born [in] 2010 and accordingly only recently turned one year of age.
The parties to the proceedings are [X]’s parents, Ms Vaughn, who is herself a very young woman having been born [in] 1990 and [X]’s father, Mr Douglas, who is slightly older and born [in] 1986.
The parties had commenced a relationship together in November 2008 and separated on a final basis on 7 February 2011. That separation followed upon a violent assault by Mr Douglas upon Ms Vaughn, the mother of this child.
There is no issue on the evidence before the court, which comprises the affidavit material of Ms Vaughn, together with oral evidence given by her today, that [X] has lived with her at all times since 7 February 2011 and that she has not communicated or spent time with her father since that time, nor has he sought to do so.
The evidence in relation to the event that gave effect to the final separation includes the following.
Mr Douglas had smashed several walls, furniture, the shower screens, doors, and there was blood on walls, including a big splash of his blood on the hallway wall and in the bedroom [Referring to the former matrimonial accommodation [omitted]]. The blood on the walls was from Mr Douglas slitting his wrists in front of me and [X] on that day and on earlier occasions.
Mr Douglas had a habit of slitting his wrists. He would slice his wrists and wipe the blood on the walls and then use towels to compress the injury. He had done this last time prior to this occasion, approximately one week earlier.
It continues:
On 7 February 2011 I said to Mr Douglas, “I’m going out to lunch with my cousin”. Whereas I was to go to lunch with my pregnant cousin I had also planned to go to [omitted] Department of Housing and seek emergency accommodation. I didn’t tell Mr Douglas my additional motive, but Mr Douglas said to me, “No, you’re not going. You’re not allowed to go to lunch”. An argument then ensued.
Ms Vaughn’s evidence then describes that the argument, which included yelling and screaming over a long period of time, concluded by Ms Vaughn seeking to leave the premises, at which time
Mr Douglas tried to prevent her from doing so, grabbed her and pushed her. She eventually gave up and started walking out of the bedroom into the hallway. At this time Mr Douglas again sliced his wrists.
At this point [X] was in Ms Vaughn’s arms. Mr Douglas grabbed
Ms Vaughn by the throat and pushed her and [X] against the wall.
After he let go she went to sit on the lounge where Mr Douglas’ grandmother, a Ms W, was sitting and [X] was placed on the carpet in front of her. Mr Douglas continued to scream and rant and yell. He then ran at Ms Vaughn, grabbed her, pushed her on to the lounge, punched her numerous times, about 10 times, on the back. Ms Vaughn deposes that she was in great pain, screamed and cried and eventually asked Ms W to call the police or, at least, call an ambulance.
She attempted to do so and Mr Douglas took her phone. There was then an argument between the two of them. While they were arguing Ms Vaughn, who was in pain, left the room and limped away, walked around the side of the house and made it to the next door neighbour’s. By that time Ms Douglas was on the front veranda and yelling and screaming at the next door neighbours. An ambulance and the police were called. Mr Douglas then left driving away in his grandmother’s car.
The police and an ambulance then arrived and Ms Vaughn received some treatment. She returned to the home and reclaimed [X] before being further treated by the ambulance officers.
Mr Douglas returned and was screaming at Ms Vaughn, “You’re fucked”. It continued on in this vein for some little while until
Ms Vaughn and [X] were taken to hospital by ambulance, received some further treatment and a police statement given. The police then subsequently arrested Mr Douglas. He was charged and domestic violence proceedings and criminal charges have now concluded.
Other threats are deposed to as having been made by Mr Douglas during and throughout the relationship, including threats in relation to the use of guns. It would appear that much, if not all, of this behaviour was precipitated by drug use. It is deposed that Mr Douglas would regularly use ecstasy and other drugs. He also used injectable drugs, it would appear, and syringes and powder and other substances were found in foil packages about the home.
As a consequence of being refused bail or conviction or both
Mr Douglas commenced a period of imprisonment and concerns are raised by Ms Vaughn that she is concerned as to what will happen when he is released.
The arrangements for [X], who is otherwise a happy, healthy little girl and should be cherished, remain as set out in Ms Vaughn’s material, being that she is the sole carer for this child.
As parenting proceedings, even on an undefended basis, the court is required to observe both the legislative pathway set out in Part VII of the Act and due process.
That particularly arises as application is made today on an oral basis (and I propose to grant leave for that oral application to be made and be dealt with today, notwithstanding the absence of notice to Mr Douglas), to enable Ms Vaughn to effect a change of surname for her child.
Ms Vaughn has also indicated her intention to change her surname purely to [C].
The issue of due process in relation to that oral application is of some importance. The proceedings are listed today for undefended hearing.
All orders and directions as to service have been complied with and I am satisfied, accordingly, that the proceedings have, in all probability, been brought to Mr Douglas’ attention. His absence of appearance in the proceedings, accordingly, I am content to ascribe to either his consent to the orders proposed by Ms Vaughn or his absence of objection to them. Of course, in relation to the oral application for change of name there is no such due process afforded to Mr Douglas.
However, I am satisfied in the circumstances, and particularly noting that the matter has been before the court on previous occasions and
Mr Douglas has not attended notwithstanding service and notice, that an adjournment of that application would not necessarily elicit any appearance or any action by Mr Douglas and would simply put
Ms Vaughn and [X] to further inconvenience. I am also satisfied in that regard that the application that is made is one which would fall to a large extent under an exercise of sole parental responsibility being an order that is sought and which I propose to make on a final basis today and which was made on an interim basis on 11 May 2011.
The nature and effect of parental responsibility is that parents, if they have equal shared parental responsibility, are required to consult with each other with respect to major issues and attempt to make joint and consensual arrangements with respect to such issues - see s.61D of the Act.
The definition of major issues decisions as contained within s.4 of the Act includes decisions with respect to the child’s name. On the basis that Ms Vaughn will, following the making of orders today, have sole parental responsibility she would, in fact, be the sole person required under the Registration of Births, Deaths and Marriages legislation in New South Wales to give consent to a change of name.
Accordingly and to the extent that there is potentially a prejudice to
Mr Douglas of that application proceeding on an oral application and without further notice to him I am satisfied that:
a)the prejudice is minimal, if any, as Ms Vaughn would be entitled to take action to change the child’s name in any event as the person with sole responsibility, and
b)he is unlikely to participate in any proceedings if the matter were adjourned to give him further notice of that application as he has not chosen to take part in any proceedings to date.
I will deal with all aspects of the matter today.
In dealing with any application for parenting orders the court is required to consider the objects and principles set out in s.60B. Whilst they provide, in large part, a number of rights that children hold and which Courts should seek to enshrine, they are prefaced upon the caution that they are subject to the court being satisfied that they are, in fact, in the child’s best interests or that the preservation of rights and making of orders in accordance with them, being [X]’s rights, would not be contrary to her best interests.
Everything that the court does is required to be guided by the child’s best interests being the paramount consideration, as set out in s.60CA.
I am required to consider the presumption of equal shared parental responsibility as set out in s.61DA. The presumption does not apply in circumstances where the court is satisfied that there has been abuse, as defined in s.4, or family violence, as also defined in s.4.
On the basis of the matters which have already proceeded to findings in the Local Court I would be satisfied that the presumption does not apply. On the basis of the unchallenged evidence of Ms Vaughn I am satisfied that I can make my own finding as to family violence and, accordingly, the presumption does not apply.
The non-application of the presumption does not preclude the court making an order for equal shared parental responsibility if it is considered appropriate by reference to ss.65DAA(5) and s.60CC.
Section 65DAA (save subs.5 dealing with reasonable practicality) need not be considered in circumstances where the presumption does not apply.
Section 65DAA(5) relates, importantly in this case, to matters such as the parents’ current and future capacity to implement arrangements and the parents’ current and future capacity to communicate and resolve difficulties as well as the impact that any arrangement for time as might be ordered would have on the child.
I am satisfied that these parents have no current or future capacity to communicate or resolve difficulties and nor should Ms Vaughn, as a young woman who is doing her best to raise her child without the input and assistance of [X]’s other parent, be put in a circumstance where she is required to even attempt to communicate. Even if domestic violence orders made by State courts allow and permit such communication requiring this young mother to attempt to communicate with
Ms Douglas in circumstances when he clearly has a number of difficulties relating to his behaviour, whether precipitated by drug use, mental health, a combination of the two or any other factor, would be unacceptably onerous and would have no real or potential benefit for [X].
Clearly Mr Douglas’ capacity, whilst suffering with difficulties of his own, is entirely unable to participate in an effective way in decision-making for [X] and I would imagine his capacity to do so is severely limited, if it exists at all.
In considering the matters set out in s.60CC I am required to consider the primary considerations of [X]’s right to have the benefit of a meaningful relationship with both of her parents and her right to be protected from physical or psychological harm as a consequence of being subjected or exposed to abuse, neglect or family violence.
Based on the findings that I have already made, that [X] has been exposed to family violence, I would need to be satisfied that sufficient change has occurred in Mr Douglas’ behaviour and/or in the behaviours that give rise to his manifest physical violence and self-harm, to be satisfied that there is no ongoing risk to this child of physical or psychological harm as a consequence of being exposed to Mr Douglas’ behaviours as described above. I cannot be satisfied of that in the absence of evidence from Mr Douglas and his presentation and participation in these proceedings.
I am satisfied that there would be, at this point in time, an unacceptable risk arising from Mr Douglas being involved in anyway in [X]’s life (See B & B (1993) FLC 92 - 357, M & M (2000) FLC 93-006.
The benefit to the child of having a meaningful relationship with both parents is, in my mind, subservient to the need to ensure the physical and psychological health of children, particularly children as young as [X], being a child of only one year of age.
I would find it difficult even if Mr Douglas were here to present evidence to suggest insight into and substantial change to his behaviour to find any arrangement that would advance his relationship with [X] other than, at this point in time, very slow, stable and monitored arrangements and with clear orders in force pursuant to s.68B, s.13C or otherwise, requiring that Mr Douglas demonstrate his abstinence from drugs, his receiving appropriate assistance and psychological counselling in relation to self-harm and some form of treatment to develop insight into his propensity to perpetrate and his abstinence from physical violence.
In any event, the primary consideration of the child having a meaningful relationship with both parents provides for exactly that - a balancing of [X]’s right to, and ability to have, a meaningful relationship with both parents.
I am satisfied that exposing Ms Vaughn, at this point in her young life, to having to deal with Mr Douglas would be problematic and would have the very real potential to undermine her health, happiness and capacity to function, let alone her capacity to care for and parent [X] as the only parent that this child effectively has and I imagine will remain the only effective parent [X] will have for a very long time if not for all of her childhood.
In those circumstances I particularly have regard to previous case law, such as Merryman (1993) 116 FLR 87, Jaeger (1994) FLC 92-492, Blanch & Crawford (1999) FLC 92-837, A and A (1998) FLC 92-800, M & M (2000) FLC 93-006 and Oakley & Cooper [2009] FamCAFC 133.
The benefit to this child of having a meaningful relationship with her father is unclear as Mr Douglas has not sought to participate in the proceedings. From the material that is unchallenged from Ms Vaughn I am satisfied that it would be difficult even if Mr Douglas was seeking to participate in [X]’s life at this point in time for that to be or become a meaningful involvement, as referred to in s.60B, or a meaningful relationship, as referred to in s.60CC. Mr Douglas clearly must have some form of impediment to his capacity to appropriately physically or emotionally parent, having regard to his drug use and self-harm. Those issues combined with his violence would, in my mind and unless and until some clear, concrete demonstration of change were before the Court disqualify him from participating in the exercise of parental responsibility or a relationship with this child.
The additional considerations to the extent that they are relevant are as follows:
a)Views
This child is not of an age where she can express views or weight would be attached to them.
b)The nature of the child’s relationship with each parent
Clearly Ms Vaughn is this child’s only emotional parent and is doing a good job ensuring that this little girl’s needs are met whereas clearly her father is doing nothing towards the child’s needs.
c)The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship
Whilst this factor is often referred to, somewhat inaccurately and misleadingly, as the “friendly parent consideration” it is nothing of the sort. It is a requirement to consider, in the circumstances of each case, whether the actions taken by a parent to promote and encourage a child’s relationship with the other parent demonstrate a willingness and ability to recognise the importance of and facilitate that relationship.
I would not for one moment expect Ms Vaughn to have to engage with Mr Douglas or have any real confidence in her mind that [X] could possibly be safe or benefit from a relationship with Mr Douglas in his present state of mind and as referred to in her evidence.
Accordingly, I am satisfied that whilst Ms Vaughn, by the orders that she seeks, could be suggested to demonstrate a lack of willingness to facilitate the child’s relationship with Mr Douglas, that lack of willingness is entirely appropriate and, in fact, is to be congratulated as reflecting and suggesting a very clear protective instinct on her part, as this little girl’s mother, to ensure that [X] is safe, as she has not been when exposed to Mr Douglas in the past.
d)The likely effect of any change in circumstances, including separation from either parent
[X] clearly will not be separated from her mother and nor should she. Her mother, whilst a young woman is doing an excellent job with this young child and in the most trying of circumstances wherein she is left to do a two person job all by herself.
From Mr Douglas there is a complete absence of assistance. He has not assisted her at all. He does not pay child support. He does not provide any other emotional support and, indeed, he has done everything within his power to undermine both her ability to provide for herself and [X] and to undermine and detract from Ms Vaughn’s great joy that should have been derived in the early stages of this little girl’s life by both of her parents. He has made that a miserable time for both [X] and [X]’s mother.
No doubt, in due course, if Mr Douglas receives some treatment or rehabilitation in relation to the conditions that clearly plague him he may recognise the wrong of his actions and feel some remorse let alone come to a realisation of what he has lost. Clearly at this point in time he would not.
e)Practical difficulty and expense
This is not a consideration. I propose to make orders for sole parental responsibility in Ms Vaughn’s favour and I propose to make no order for time between this child and her father
f)The capacity of each parent to provide for the child’s intellectual and emotional needs as well as physical needs
I am abundantly satisfied as to Ms Vaughn’s capacity to look after this little girl. She is doing a good job, as I have indicated, in the trying circumstances where she has been violently assaulted by a thug who has been either drug-affected, mentally unwell or through his own personality has determined that the appropriate way to treat the young mother of his child is to assault her while she is holding the child and to act in the manner described in the evidence above. I have no doubt whatsoever as to Mr Douglas’ incapacity to properly and appropriately conduct himself in civilised society, let alone to parent this child.
g)Maturity, sex, lifestyle and background of the child
Maturity is relevant in that this child is tiny. Her emotional needs and physical needs are met entirely from external sources. It is important that her bonding and attachment with her mother are not disrupted in any fashion nor prejudiced in any way.
Any involvement by Mr Douglas and Ms Vaughn, whether directly or through seeking to facilitate any form of communication or time between he and the child, would, in my mind, do nothing that would benefit the child, but would have great potential to cause significant difficulty for Ms Vaughn.
h)Aboriginal or Torres Strait Islander background.
There is no suggestion the child is of an Aboriginal or Torres Strait Islander background
i)The attitude to the child and responsibilities of parenthood
As should be clear from the above I am satisfied that an appropriate and protective attitude is manifestly demonstrated by Ms Vaughn.
Often in our media young parents are criticised but unfairly so.
Ms Vaughn is doing an excellent job. She has returned to employment. She is supporting this child and herself and she is doing everything she can to ensure that this little girl has her rights under both the Family Law Act and the International Convention on the Rights of the Child protected and ensuring that she has the best potential to meet her future potential.
On the other hand, Mr Douglas has demonstrated nothing but a reprehensible attitude towards his responsibilities as a parent and he would appear to have demonstrated them entirely through self-interest, self-absorption and through physical harm being perpetrated to himself and others in a way that would be most psychologically disturbing for this child. Thankfully this child was at separation of an age wherein she was, in all probability, not cognisant of the actions occurring around her, but she would certainly have been alive to and aware of the emotional effect of them upon her mother.
j)Family violence involving the child and a member of the child’s family
This is dealt with above. Clearly the level of family violence demonstrated by Mr Douglas on 7 February 2011 is such that I am not prepared to take any risk that would put this child or, indeed, this mother in harm’s way whether physically or emotionally or which would, as one could only imagine would be the case, undermine and deplete this mother’s happiness, let alone her physical safety.
This child is at an important point in her bonding and development and to interfere in her mother’s emotional functioning through being made unhappy, distressed, stressed or otherwise traumatised through
Mr Douglas’ actions or the potential, let alone reality, of having to deal with him in the future is such that it would have the potential to undermine this child’s bonding and attachment with her mother which would be contrary to the primary consideration in considering the benefit of this child’s meaningful relationship with both parents and in this case the only meaningful relationship she has is with her mother. I am not prepared, in any way, to prejudice that.
k)Family Violence Orders
There is a family violence order in force and I do not propose to interfere with that in any way nor make any order which is or might have the potential to be inconsistent with that order.
l)Whether it is preferable to make an order that would least likely lead to the institution of future proceedings
I am satisfied that any order which left open the door for Mr Douglas to pursue a relationship with his daughter, particularly when he is not here to prosecute any application, would be problematic and would most likely lead to future proceedings. Accordingly, I propose to make orders that will close that door as far as possible, but of course leaving the opportunity to Mr Douglas, should he so desire and should he be in a position to have addressed his own shortcomings, to seek to re-instigate some arrangement in the future, but by returning to this court
I am also required to consider s.60CC(4), being the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent. It is manifestly clear and should be so from the above that
Mr Douglas has failed to take any opportunity to participate in decision-making, spend time with [X] or communicate with her. He has also failed to meet his financial obligations to [X] by failing to pay child support. That is a relevant consideration under s.60CC(4).
To that extent I am satisfied that whilst it is often described by the Full Court and by other authorities - see Murphy J Pitkin and Hendry [2008] FamCA 186 - as an extreme step to remove a parent’s entitlement to participate in decision-making with respect to a child that in the circumstances of this case and having regard, in particular, to the violence that has been demonstrated by Mr Douglas towards this very young mother and very tiny infant child, that such a step is the only appropriate step I can safety take to ensure this child’s future welfare is protected.
I certify that the preceding forty-forty-five (445) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 2 August 2011
0
2
3