Ventura and Ventura

[2017] FCCA 3179

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURA & VENTURA [2017] FCCA 3179

Catchwords:
FAMILY LAW – Parenting – undefended hearing – mother to have sole parental responsibility for the children – children to live with mother – no time with the father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode v Goode (2007) 36 Fam LR 422

MRR v GRR [2010] HCA 4

Applicant: MR VENTURA

Respondent: MS VENTURA

File Number: PAC 437 of 2015

Judgment of: Judge Obradovic

Hearing date: 26 July 2017

Date of Last Submission: 26 July 2017

Delivered at: Parramatta

Delivered on: 15 December 2017

REPRESENTATION

Appearing for the Applicant: No appearance

Appearing for the Respondent: Mr Jokovic

Solicitors for the Respondent: Michael Jokovic & Associates

Appearing for the Independent Children's Lawyer: Ms Beach

Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales

ORDERS

1. All previous order in respect of the children X born (omitted) 2010 and Y born (omitted) 2014 are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The children shall spend no time with the father nor have any communication with the father.

5. Pursuant to section 65Y of the Family Law Act1975 X born (omitted) 2010 and Y born (omitted) 2014 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to X born (omitted) 2010 and Y born (omitted) 2014. The mother shall be the only person with ‘parental responsibility’ of the children X born (omitted) 2010 and Y born (omitted) 2014 for the purposes of applying for, and being issued with, an Australian passport for X born (omitted) 2010 and Y born (omitted) 2014.

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

7. Reasons for Judgment are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 437 of 2015

MR VENTURA

Applicant

And

MS VENTURA

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 26 July 2017 the Court made final orders in relation to the two children of the parties, X born on (omitted) 2010 and Y born on (omitted) 2014.

2. The final hearing proceeded on an undefended basis as against the Applicant father.  These are the Reasons for Judgment.

Relevant Facts

1. The father was born on (omitted) 1983.

2. The mother was born on (omitted) 1989.

3. The parties commenced living together in (omitted) 2006, when the mother was 17 years old.

4. In (omitted) 2008, the father suffered a workplace injury, resulting in time off work and pain associated with the injury.

5. In February 2009, an argument occurred between the parties. During the argument the father threw a cordless phone at the mother. After this incident the mother left the home where the parties resided together and went to her parents’ home. The mother did not report the matter to the police.

6. At about this time the mother had noticed that the father’s demeanour in mood had changed, in that the father had commenced to become argumentative with her and she observed him to be short of temper.

7. The parties married on (omitted) 2009.

8. After the parties returned from their honeymoon in (country omitted), an argument ensued. As a result of the argument the father grabbed the mother by the throat and pushed her into one of the cupboards. He struck her in the face and her nose began bleeding. The paternal grandparents, and the father’s aunt and uncle arrived at the parents’ home shortly thereafter, and the father begged the mother not to call the police. The police were not notified of the incident.

9. On (omitted) 2010, X was born. Until her birth the mother was in full-time employment and after a period of parental leave, she returned to work in (omitted) 2011. When the mother was at work, X was cared for by both the maternal and the paternal grandparents.

10. In (omitted) 2013, the parties purchased a property at (omitted).

11. In or about July 2013 the father took approximately $3,500 from the parties’ joint savings account. When the mother questioned the father about the money he told her that as a result of the parties’ financial difficulties he had to start selling drugs.

12. Sometime later, the mother saw the father in a vehicle with a friend who was smoking “ice”. The mother told them to leave at which point the father became angry because she had “insulted” his friend. The father locked the mother out of the house for three hours. At the time she was pregnant with Y and X was inside the house asleep.

13. During her pregnancy with Y and after his birth, the father would leave the parties home to spend time with friends who, the father informed the mother, were all drug users. The mother believes that the father was also using the drug “ice” during this time.

14. The parties’ second child Y was born on (omitted) 2014. At the time of his birth, the mother again took parental leave.

15. On or about 21 July 2014, the mother looked through a small bag which the father usually carried around, but which had been left in the kitchen while the father was asleep. When she opened the bag, she found a small plastic bag of white crushed crystal substance, a knife, condoms and a small ring. She then woke the father up. There was an argument between the parties about the contents of the bag. The mother asked the father to leave, which he refused to do. The father threw an object at the mother and said that if she did not get out of there he was going to get a gun out of the safe and use it. At the time, the father had about 13 rifles in the garage, which have subsequently been confiscated.

16. The parties continued to argue frequently after this event. On 23 July 2014, during an argument the father opened the fridge door with such force that it hit the mother in the stomach. The mother pushed the father away, and the father put her in a headlock and pushed her backwards onto the floor. The mother screamed and X woke up. The father grabbed X and started yelling “tell mum to stop yelling at us, tell mum to stop hitting us.”

17. The mother attempted to telephone the police and mid call the father pulled the landline phone out of the wall. As she was walking to X’s room, the father confronted her in the hallway and took her mobile phone and put it in his pocket. She tried to get it back from him but was not successful. The mother recalls X yelling “give mummy back a phone”.

18. The mother then ran to the neighbour’s house next door and began knocking on the door. When the door was answered she asked neighbours to call the police. She then promptly ran back to the house to get the children. When she returned to the house the father had hold of X who was screaming for the mother. The mother managed to get X out of the father’s arms and ran into Y’s room and got him out of the cot. At that point the father was holding a crucifix up to X and shouting “mummy has been possessed.” The mother pushed past the father holding both children. The father grabbed the mother’s arm to pull her back and in so doing caused Y to fall out of the mother’s arms and land face first onto the floor. The father was the first to get to Y and there was then a struggle between the parents. The mother was not able to get Y out of the father’s arms. The mother ran outside and left X standing with the neighbours.

19. The police arrived soon thereafter and went inside the property to speak with the father. The police did not bring Y out of the house for about 15 minutes. An ambulance arrived together with the maternal grandparents whom the mother had telephoned earlier.

20. The mother told the police what had occurred and that the father had drugs inside the house. Ultimately after further involvement with the police, the mother left with the children. On 27 July 2014, the mother made a statement to the police and following that statement the police applied for an Apprehended Domestic Violence Order which was heard at Penrith Local Court on 5 August 2014. An interim order was made on the day.

21. It is the mother’s belief that on (omitted) 2014, the father was admitted to (omitted) Hospital in relation to his mental health.

22. Between 10 and 28 August 2014, the father contacted the mother numerous times. He also left a package and letter at the front door of her parents’ home, where she was staying with the children at the time. Subsequently the father was charged with breaching the Apprehended Domestic Violence Order.

23. On 10 February 2015 a final apprehended violence order was made for the protection of the mother.

24. The children did not spend any time with the father after separation until orders were made on 12 March 2015 for the father to spend time with the children at a supervised contact centre.

25. The father spent some time with the children supervised in accordance with those orders and there were early signs of difficulties with the father attending late and cancelling visits from at least June 2015.

26. In November 2015 the contact centre suspended the father’s time due to his behaviour.  

27. The mother says that X began to show signs of anxiety prior to visits with the father at which point the mother obtained a referral for a child psychologist. She attended three visits with the psychologist between the period of 19 October 2015 and 17 November 2015.

28. On 22 December 2015 the Court made an order for the preparation of a Family Report and also for the reinstatement of the children’s supervised time with the father. The father did not ultimately participate in the process for the preparation of the Family Report and the father did not take up the opportunity of spending time with the children.

29. In (omitted) 2016 the father was imprisoned for an assault on his current partner and whilst incarcerated was further charged for the possession of a “balloon containing a substance”. The father was in goal until mid-August 2016.

30. On the 30 March 2016, the Apprehended Violence Order made on 10 February 2015 was varied.

31. On 15 June 2016 a Final Apprehended Domestic Violence Order was made for the protection of the father’s current partner for a period of two years.

32. The parties divorced on 30 June 2016.

33. On 21 December 2016, the parties asked the Court to make property adjustment orders by consent, and subsequently orders were made. A further order for a Family Report was made.

34. At the mention of the matter on 6 April 2017 the father did not appear. The solicitor for the mother advised the Court that the father had indicated to him that he did not intend on filing any further material and that he would not be participating in the proceedings.

35. The father did not appear at the hearing of this matter on 26 July 2017, and orders were made in his absence.

36. The Respondent mother relied on the Amended Response filed 21 December 2016 and Notice of Risk filed 11 March 2015. Read in the mother’s case was the Affidavit of Ms Ventura filed 14 June 2017. The mother also relied on her Case Outline Document dated 25 July 2017.

37. The Independent Children’s Lawyer relied on her Case Outline Document dated 24 July 2017, in support of the orders which she sought.  Tendered in the proceedings were documents produced under Subpoena by the Department of Justice and New South Wales Police.

The Law

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

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

3. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. In applying the primary considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

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

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

6. The Full Court in Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway.

Section 60CC Factors

Views of the child

1. Given the children’s ages, little weight would be afforded to their views, were those views known. The available evidence shows that X was at times anxious and distressed at spending time with the father.

Nature of the children’s relationships with their parents and significant others

1. The mother has been the children’s primary carer and the evidence is that the children have a positive relationship with her and a strong attachment. The children at present have no relationship with the father.   

Parent’s involvement with decision making, spending time and communicating with the children and Maintenance of the children

1. The father has not availed himself of the available opportunities to spend time with the children.

2. The mother has been the children’s sole carer since separation, ensuring that all of their needs are met. She has been the decision maker in respect of their daily care, and long term needs. Although she has at times sought to include the father in decision making for the children, the father has not responded to such communication. For example, the mother has sought the father’s consent for the children’s passports to be issued so that she could take them on holidays to (country omitted). The father did not provide any consent nor respond to the mother.

3. The mother meets all costs associated with raising the parties’ children and the father does not pay any child support.

Likely effect of change and practical difficulty of spending time

1. The children have not spent any time with the father since early 2016 and it is likely that any change to their routine in the present circumstances is likely to have a detrimental effect on them.

Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents

1. The Court finds that the mother has a demonstrated capacity to meet the children’s needs. She has capably provided for their educational, health and developmental needs since separation with the support of her family.

2. The father has demonstrated a poor capacity to meet the needs of the children, not only by his lack of engagement, but also through his behaviour and exposure of the children to family violence. His erratic behaviour, mental health difficulties and substance abuse speak poorly of his capacity to place the children’s needs above his own.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child's parents; if the children are an Aboriginal

1. There is limited evidence about these matters.

2. The father’s lifestyle post separation has already been referred to. It is not a lifestyle that is in the children’s best interests.

Family Violence

1. The mother’s evidence is that the violence began prior to their wedding when he threw a phone at her during an argument, then grabbed her by the throat and struck her on the face causing her nose to bleed in (omitted) 2009, and continuing up until the incident at the time of separation when the father hit the mother in the stomach with a fridge door, put her in a headlock, pushed her onto the floor with X being woken by the commotion and escalating until the father grabbed at the mother whilst she held Y, causing the child to fall face first onto the floor.

2. A final Apprehended Domestic Violence Order is in place for the protection of the mother from the father until February 2018. While initially made for a shorter time, the order was extended in March 2016.

3. A final Apprehended Domestic Violence Order was also made in June 2016 for the protection of the father’s partner, arising from incidents of violence in (omitted) 2016 for which the father received criminal convictions.

4. On balance, the evidence establishes that the father has been a perpetrator of family violence, not only upon the mother in the immediate presence of the children but also upon his subsequent partner, including while she was pregnant with his child.

Institution of further proceedings and other relevant matters

1. These are final orders, and given the father’s lack of engagement to date, there is some possibility of further applications being made. However, on balance, the Court is of the view that making final orders now and in the absence of the father is in the children’s best interests.

Primary Considerations

1. The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. This is so because the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence is to be given greater weight than the benefit to the children of having a meaningful relationship with both of her parents.

2. The children currently do not have a relationship with the father. There is a need to protect them from harm from being exposed to the father’s violent behaviour and conduct, not only towards their mother in their presence but also towards other persons including the father’s current partner.

Parental Responsibility

1. The Court is satisfied having regard to the mother’s evidence that there are reasonable grounds to believe that the father has engaged in family violence. For that reason, the presumption of equal shared parental responsibility has been rebutted.

2. The father in any event, has had very little to do with the children, and the co-parenting relationship is so poor that it contra-indicates any order for equal shared parental responsibility. The father has elected not to actively participate in the proceedings, and more importantly, in the children’s lives. Since separation the mother has continued to care and provide for the children essentially without any assistance of the father.

3. As such, an order for the mother to have sole parental responsibility is in the children’s best interest.

Conclusion

1. In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 15 December 2017