Vukoja and Vukoja (No 2)

[2020] FamCA 629

FAMILY COURT OF AUSTRALIA

VUKOJA & VUKOJA (NO. 2) [2020] FamCA 629

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where the father’s drug use is of serious concern – Where orders made providing the mother with sole parental responsibility – Where orders made that the children live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 69ZN
Family Law Rules 2004 (Cth) rr 1.12, 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Vukoja & Vokoja [2020] FamCA 614

APPLICANT: Ms Vukoja

RESPONDENT: Mr Vukoja

FILE NUMBER: PAC 129 of 2018

DATE DELIVERED: 3 August 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Nikola Velcic & Associates

SOLICITOR FOR THE RESPONDENT: Mr Putrus of John & Co Lawyers

Orders

1. That the mother have sole parental responsibility for the three children of the marriage namely X born … 2011, Y born … 2013 and Z born … 2017 (“the children”).

2. That the children live with the mother.

3. That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father, Mr Vukoja:

   (a)Be and is hereby restrained from approaching within 100 metres, entering upon or interfering in any way with the property situate at and known as B Street, Suburb C in the state of New South Wales and the property situate at D Street, F Town in the state of New South Wales;

   (b)Be and is hereby restrained from attending G School, Suburb C and H Centre, Suburb J;

   (c)Be and is hereby restrained from causing or threatening to cause bodily harm to the mother; and

   (d)Be and is hereby restrained from harassing, molesting or stalking the mother or the children or any of them.

4. That order 3 is for the personal protection of the mother Ms Vukoja and the children X, Y and Z and the powers of arrest under s 68C of the Act apply.

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 Vukoja & Vokoja has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129 of 2018

Ms Vukoja

Applicant

And

Mr Vukoja

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings commenced by the applicant mother by Initiating Application filed 16 October 2019.

2. The application concerns three children: X (“the oldest child”) who was eight years old at the time of hearing, Y (“the middle child”) age six and Z (“the youngest child”) age three. 

3. The matter came before the Court on 16 June 2020 for an undefended hearing as the father had disengaged in the proceedings, having not filed any documents notwithstanding orders and directions for him to do so on not less than three occasions. On 16 June 2020 a legal representative engaged the day prior appeared on the father’s behalf and sought that the undefended hearing be vacated to give the father time to file material in accordance with previous orders and directions.  This application was opposed by counsel for the mother.  Short reasons were given at the time dismissing the father’s application to vacate the undefended hearing. The undefended hearing proceeded and reasons for judgment were reserved.

4. At undefended hearing, the mother relied upon the following documents:

   a)her Initiating Application filed 16 October 2019;

   b)her affidavit filed 5 June 2020; and

   c)the affidavit of her solicitor filed 15 June 2020.

5. The mother seeks orders that she have sole parental responsibility for the children, that the children live with her and spend no time with the father. She further seeks orders pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of her and the children that the father be restrained from, in summary:

   a)approaching within 100 metres, entering upon or interfering in any way with the properties situate at B Street, Suburb C (“the former matrimonial home”) and D Street, F Town (“the F Town property”);

   b)attending G School, Suburb C and H Centre, Suburb J;

   c)causing or threatening to cause bodily harm to the mother; and

   d)harassing, molesting or stalking the mother or the children.

Context

1. The mother was 35 and the father 37 at the time of hearing.

2. The parties commenced a relationship in January 2003 and married and commenced cohabitation in 2010. The parties separated under one roof on 1 February 2017 and the mother moved out of the former matrimonial home and in with the maternal grandparents around May 2018.

3. The oldest child of the parties’ relationship was born in 2011, the middle child in 2013 and the youngest child in 2017.

4. The parties filed an Application for Consent Orders in January 2018 relating to the distribution of matrimonial property following the breakdown of their relationship and orders were made later that month which provided, in summary:

   a)that the father transfer to the mother his interest in the former matrimonial home or in the alternative if this does not occur within the time specified the former matrimonial home be sold;

   b)the mother transfer to the father her interest in another property owned by the parties at K Street, Suburb C and also in the alternative if this does not occur within the time specified that the property be sold; and

   c)that the mother make all mortgage payments in relation to the F Town property and keep the father indemnified.

5. There are currently separate proceedings before this Court in relation to these property orders instituted by the trustee in bankruptcy to set aside these Consent Orders and directions have been made in relation to that application.

The proceedings

1. Proceedings were commenced by the mother on 16 October 2019 by filing an Initiating Application in this Court.

2. The matter came before a registrar on 9 December 2019 who made directions for the father to file and serve a Response and supporting documents and the matter was listed for a future directions date.

3. The matter was again before a Registrar on 16 January 2020 for directions. The matter was transferred into the judicial duty list for interim hearing noting that the matter may proceed undefended as the father had not complied with the previous directions to file a Response. Directions were made for the interim hearing and the mother was directed to notify the father of the orders of this date.

4. On 20 January 2020 the father appeared in person and the interim hearing was adjourned to case management with the father ordered to file and serve a Response setting out the interim and final orders sought. Orders were also made by consent on this date that the mother have sole parental responsibility for the children, the children live with the mother and spend no time with the father. Orders were also made for the personal protection of the mother and children restraining the father, in summary, from:

   a)approaching the former matrimonial home and the F Town property;

   b)attending G School, Suburb C and H Centre, Suburb J;

   c)causing or threatening to cause bodily harm to the mother; and

   d)harassing, molesting or stalking the mother or children.

5. On 28 February 2020 the mother’s application for final parenting orders was listed for undefended hearing and directions were made for the mother to file material for trial. Orders were also made extending the father’s time for compliance with prior directions for the filing of a Response.

6. On 16 June 2020 the matter came before the Court for an undefended hearing.

Procedural fairness

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

   Parties' participation

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

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

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

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

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

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

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

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

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

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

6. For the reasons given on 16 June 2020: Vukoja & Vokoja [2020] FamCA 614 the Court was not prepared to vacate the undefended hearing listing as was sought on behalf of the father and was satisfied that the matter should be heard on an undefended basis.

The father’s drug use and related behaviour

1. The father’s drug use and associated behaviour is documented in police records produced (Exh “C”). These records give weight to the mother’s concerns as to his drug use during the relationship and evidence of his concerning, suspicious and paranoid behaviour as detailed below.

2. The mother believes that the father first began using “ice” (methamphetamine) when the parties started having marital difficulties in August 2016.

3. During September 2016 the father installed cameras in and around the former matrimonial home as he was concerned that people were watching and listening, said that the family “need[ed] to be careful” and he would stay up late after the mother had gone to bed watching the camera footage. The father also placed stickers over the TV and his phone camera and said words to the effect “there are people that can tap into the internet and look though our cameras”.

4. The father continued to demonstrate paranoid behaviours in the months that followed. In October 2016 the father told the mother that the parties needed the cameras and locks to keep them safe. When the mother queried who they needed protection from, the father responded to the effect “why the fuck don’t you just believe me when I tell you this?  Do you think I am crazy?” Also in that month the father said words to the effect “I’m fucking losing it, I can’t handle this shit at work anymore” and “I have too much stress at work and shit workers who I can’t trust any more”.

5. In early December 2016 the mother found a small plastic bag with a white/clear substance inside a packet of the father’s cigarettes.  When the mother confronted the father, he denied that it was his and insisted it belonged to one of his workers and that he had taken it off him to try and help him.

6. In early January 2017 the father became unwell and he said to the mother on one occasion “the reason I am sick is because of stress.  I have no help from anyone. [Name of employee] is up to something and I think she is stealing money from me.  I know that nobody believes me but I know that something is going on”.

7. In February 2017 the mother came across a glass pipe wrapped in tissue in the laundry of the former matrimonial home which she suspected was associated with drug use. The father denied when confronted by the mother that it belonged to him and in the course of the discussion that followed the father again spoke about people who were trying to steal from him and that he had been watching the camera footage at night and had been seeing “orbs”.

8. On 19 March 2017 the mother found an envelope in the parties’ letterbox with the father’s name on it which contained a white substance which she believed to be “ice”.  Once again the father denied any drug use or ownership of the item when she confronted him about it.

9. From April 2017 to November 2017 the mother continued to observe the father to behave unusually and make paranoid comments causing her concern including “Westpac are frauding me… They have stolen money from me… They are sending me fake statements”, “people are listening to our conversation right now” and accused various people of stealing money from him.

10. On 23 April 2018 the mother accompanied the father to an appointment he had with a psychiatrist. The father told the psychiatrist that he had been using “ice” due to stress at work. The psychiatrist recommended that the father undertake a three week rehabilitation program and the father agreed that he would once he completed a job at work.

11. The mother left the former matrimonial home in May 2018 and moved in with the maternal grandparents with the children, however, she returned to the property during the next 12 months from time to time to collect belongings or check on the house.

12. In June 2018 the mother began to receive messages from the father that were often abusive and regularly made reference to his drug use, threats to burn down the home and mental health issues including threats of suicide which continued for over a year. The tone and content of the father’s messages can be gleaned from the  following messages (Exh “B”):

    Your fuckd, Evil bitch… Go fuck someone else up…

    and

    I’m gonna take as much shit till i fuckn OD…Fuck this life… Fuck the support… Fuck f family… Fuck faith, Fuck god…

13. On 23 October 2019 the mother attended to collect the children from after school care and upon arrival noticed the father’s car parked in the after school care carpark. As the mother was returning to her car with the children and placing them in the car the father got out of his car and started yelling at her. As the mother was driving to the maternal grandparents’ home where she was staying with the children she observed the father driving erratically and when she stopped at traffic lights the father who was nearby yelled out abuse from his car. When the mother arrived at her parents’ home the father was already there waiting in his car. As the mother walked into the home the father yelled out abuse from his car and once she was inside started driving up and down the street in front of the home, performing burn outs and revving his car engine.

14. The mother reported this incident to police and two days later a provisional Apprehended Domestic Violence Order (“ADVO”) was issued by the police for the mother and children’s protection and the father was charged with Stalk and Intimidate.

15. On 31 January 2020 police executed a search warrant at the former matrimonial home. Upon entering the home police observed substantial damage and found that the father appeared to no longer be staying there. Police later contacted the mother to advise her of the damage.

16. On 4 February 2020 the mother attended the former matrimonial home and observed extreme damage which she reported to police the next day including:

    ·Holes in walls throughout the house

    ·Damage to the children’s possessions

    ·Televisions destroyed by punches to the screen and microwave, kettle, toaster, vacuum cleaner missing or damaged

    ·The mother’s personal possessions including clothing, shoes, photographs and personal documents missing or damaged

    ·Damage to window, cupboards and smashed mirror

    ·Back sliding door smashed

17. The neighbours approached the mother the same day and told her that they had reported to police the following:

    ·The father having in excess of 50 visitors at the home often visiting between midnight and sunrise

    ·Women attending the home and loitering out the front of the residence and both men and women exposing themselves and being naked on the street

    ·Condoms found in the neighbour’s garden

    ·Bags of “ice” (methamphetamine) found on the neighbour’s front yard.

18. In early February 2020 the father was pulled over by police for random testing. The father underwent a road side drug test and returned a positive result for methyl amphetamine and cocaine. The police smelt cannabis coming from the vehicle and when they conducted a search of the vehicle found a small container containing a substance which they believed to be methyl amphetamine as well as other small vials containing what the police believed to be other illicit substances.  The police also found a wallet and various cards not in the name of the father. The father was arrested for the purpose of a secondary drug test and later returned a positive result for methyl amphetamine. The police also contacted a person named on one of the cards found in the vehicle who confirmed that her wallet had been stolen and that the particular card found was in the wallet at the time. The father was charged in relation to these offences.

19. In February 2020 the father’s licence was suspended until January 2021 due to demerit point loss due to a string of driving offences.

20. On the next day the father was stopped by police in his vehicle after he was observed to be parked in a no stopping zone. Police conducted a roadside drug test and the father returned a positive result for methyl amphetamine. The father was arrested and police conducted a further drug test at the police station which returned a positive result for the same and was charged. The father was also charged with driving while licence suspended.   

21. While the father was in custody on this date police asked him about reports they had received from the mother on several occasions that he had been texting her from an unidentified number despite the conditions of the ADVO preventing him from contacting her. The father participated in an electronically recorded interview and confirmed that he had messaged the mother and confirmed that it was his mobile number. The father was then charged with contravening the conditions of the ADVO and later he was convicted of the offence but no penalty was imposed.

22. On 13 February 2020 an interim ADVO was issued by police for the mother’s protection from the father.

23. Later in 2020 the father was pulled over by police after he was observed to be driving with a mobile phone in his hand. The father was unable to produce a copy of his licence and when a search was conducted the police discovered that the father was driving with a suspended licence. The father was charged with driving while licence suspended.

1. In March 2020 police received a report that the movements of the father’s vehicle was suspicious. Police approached the father’s car which was parked and conducted checks of the three occupants, including the father. The father and another occupant “appeared to be under the influence of prohibited drugs  appearing  to be sedated, indifferent and they were unsteady on their feet”. Police conducted a search of the vehicle and the occupants and found an “ice pipe” concealed inside the bra of one of the occupants of the vehicle and also located a used “ice pipe” on the front passenger foot-well. An official move on direction was given.

2. In early April 2020 the father was in the car with a female driver whom police found to have methyl amphetamine concealed on her person. It is recorded that police suspected that the father was in the area to buy or sell prohibited drugs and he was given a direction to move on from the area.

3. Later in April 2020 police stopped the father’s car for the purpose of submitting him to an alcohol breath test. The father returned a negative result but was unable to produce his driver’s licence. The police searched the father’s name and discovered that his licence had previously been suspended and he had been charged with driving during the period of suspension on two occasions in February 2020. The father was charged and is due to appear before a Local Court in August 2020 for this offence and the prior related offences. There is a prospect that he may be incarcerated.

4. In mid April 2020 the father was pulled over by police after they observed him to drive through a red light. The police ran a check of the vehicle registration which came up with a warning for occupants driving with drugs in the vehicle. The police conducted a search and nothing adverse was located, however, the father was charged relating to him driving with a suspended licence.

5. As well as the specific incidents pertaining to the father’s drug use as have been set out, police records document the father having been pulled over by police on several other occasions while driving and him and his vehicle searched as police had intel of his drug supply and use and use of his vehicle as a courier for drugs. While the father himself was often not found to be in possession of illicit substances, there are a number of occasions dating from around August 2019 where other occupants in the father’s vehicle (who also had a history of drug related offences) were found to have been in possession of illicit substances including cocaine and crystal methyl amphetamine.

6. It is readily apparent that the father’s drug use and conduct over a period of years represent an unacceptable risk to the children should they be in contact with him.

Parenting

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

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

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

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

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

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption relevantly does not apply where:

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

   b)…

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

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

8. In the present case, the Court is satisfied that the father has engaged in family violence towards the mother having regard to the volume of abusive and disparaging messages the mother has received from him and the incident where the father stalked and harassed the mother to which the children were exposed.

9. In these circumstances, the presumption does not apply and the Court is satisfied by reason of the matters discussed in these reasons that the order sought by the mother that she have sole parental responsibility is in the children’s best interests.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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

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

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

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

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

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

3. The mother has been the primary carer for all the children at all times which has ensured a meaningful relationship between her and the children.

4. Following separation the father spent some limited time with the children at the former matrimonial home supervised by the mother.  It appears that he has not spent time with the children for some time due to the mother’s concerns as to his drug use and as such there is no meaningful relationship between the father and children at this stage.

Section 60CC (2)(b) – need to protect

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

2. This is a determinative consideration in these proceedings given the evidence in police material of the father’s history of drug abuse and the evidence of his mental health difficulties which appears to be untreated.

3. The Court accepts the submission made by the mother that while the father’s drug use is ongoing and his apparent mental health issues untreated, there is no possibility of the children having a meaningful relationship with the father.

4. The Court is satisfied that if the children were to spend time with the father while he is engaging in drug use and while his mental health issues remain untreated, there is an unacceptable risk that they will be exposed to physical or psychological harm from being exposed to abuse, neglect or family violence.

The additional considerations: s 60CC(3)

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

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

   b)The nature of the relationship of the child with:

   i)Each of the child's parents; and

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

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

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

   ii)To spend time with the child; and

   iii)To communicate with the child;

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

   d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   i)Either of his or her parents; or

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

   with whom he or she has been living;

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

   f)The capacity of:

   i)Each of the child's parents; and

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

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

   g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   h)If the child is an Aboriginal child or a Torres Strait Islander child:

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

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

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

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

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

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

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

   v)Any other relevant matter;

   l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and

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

2. Many of the considerations above are relevant in the context of the background matters discussed.

3. There is no evidence before the Court of the views of the children. In any event, given the oldest child is only eight and the other two children only six and three years old, it is unlikely that the children’s views (particularly those of the younger two children) would be afforded any determinative weight in circumstances where there are significant risk issues.

4. The three children have a close and loving relationship with the mother who has been their sole carer since separation in 2017. It would appear that the children also enjoy a close relationship with the maternal grandparents with whom they currently reside.

5. The mother has been entirely financially responsible for the children with the father not having ever provided the mother with any child support.

6. The Court accepts the submission made by the mother that the father has no capacity to provide for the children’s emotional or intellectual needs while he is engaging in drug use and while his mental health difficulties remain untreated.

7. There is an existing ADVO in place for the protection of the mother from the father and the evidence shows that the father has perpetrated family violence towards the mother as discussed above.

8. The orders sought by the mother would see a maintenance of the status quo for the children.

9. Given the father’s non-compliance with directions during the proceedings, the orders sought by the mother would be the least likely to lead to the institution of further proceedings.

10. A consideration of the s 60CC factors and the reality that the children do not have any real relationship with the father at this point in time and where the father’s drug use prevents them from having any meaningful relationship with him supports the making of orders as sought by the mother as being in the best interests of the children.

11. Otherwise, the mother also sought that injunctive orders be made pursuant to s 68B of the Act for her and the children’s protection restraining the father from approaching the children’s school and childcare and two of the properties owned by the parties. In light of the father’s historical behaviours of stalking and harassing the mother to which the children have previously been exposed, the Court is satisfied that such orders are proper for the mother and children’s protection.

12. All the aforementioned considerations are indicative of orders being made in the best interests of the children as sought by the mother.

13. Orders will be made accordingly.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 August 2020.

Associate: 

Date:  3 August 2020