WASTELL & MERKEL

[2018] FamCA 229

FAMILY COURT OF AUSTRALIA

WASTELL & MERKEL [2018] FamCA 229

FAMILY LAW – CHILDREN – Undefended final hearing – Where the father has discontinued his Initiating Application – Where it is appropriate for the matter to proceed on an undefended basis – Where there are allegations the father has been sexually inappropriate with the child – Where allegations of sexual abuse were not investigated by the Joint Investigative Response Team and not substantiated by the Department of Family and Community Services – Where there are allegations of family violence and physical abuse – Where the Department substantiated allegations of family violence perpetrated by the father against the mother and the child – Where the father poses an unacceptable risk to the child – Where it is in the best interests of the child to spend no time with the father – Orders made as sought by the mother.   

Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

Briginshaw v Briginshaw (1938) 60 CLR 336 G & C [2006] FamCA 994 Jarrah & Fadel [2014] FamCAFC 14 Johnson & Page [2007] FamCA 1235 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235
APPLICANT:	Mr Wastell

RESPONDENT: Ms Merkel

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith Family Law

FILE NUMBER: PAC 550 of 2016

DATE DELIVERED: 16 April 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 18 December 2017

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith Family Law

Orders

1. By consent of the Independent Children’s Lawyer and the mother and on an undefended basis with respect of the father, the mother have sole parental responsibility of B born … 2012 (“the child”).

2. By consent of the Independent Children’s Lawyer and the mother and on an undefended basis with respect of the father, the child shall live with the mother.

Further Orders

1. The child spend no time with the father.

2. The child have telephone communication with the father at the discretion of the mother.

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 Wastell & Merkel 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 550 of 2016

Mr Wastell

Applicant

And

Ms Merkel

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of five year old B who is the child of Mr Wastell (“the father”) and Ms Merkel (“the mother”).

2. The parents were married in 2010 and separated in 2014 when an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother against the father.

3. When the father commenced these proceedings in February 2016 he sought orders that he and the mother equally share parental responsibility for the child, that the child live with the mother and spend four nights a fortnight with the him.

4. When the mother filed her Response to the father’s Initiating Application in April 2016 she sought that she have sole parental responsibility for the child, that the child live with her and that the father spend two hours a fortnight with the child at a contact centre. The mother amended her Response in July 2017 to seek an order that the child spend no time with the father.  

5. The father filed a Notice of Discontinuance on 14 November 2017 and has not participated in the proceedings since this date.

6. On 18 December 2017 orders were made with the consent of the mother and the Independent Children’s Lawyer (“ICL”) and in the absence of the father for the mother to have sole parental responsibility for the child, for the child to live with the mother and for the father’s contact with the child to be suspended. I reserved judgment in respect of my reasons for those orders and with respect to other orders sought by the mother.

Background

1. The mother, who was born in Australia and is 41, has a child from a previous relationship (“the mother’s older child”) who was 16 at the time of the final proceedings.

2. The father was born in Africa and is 39. He commenced a relationship with the mother in late 2009 and they married in 2010. The father has two children from a prior relationship.  

3. In May 2011 there was an altercation between the mother and the father at the former family home that resulted in the mother suffering a fractured skull. The mother alleges this injury occurred during the course of an argument when the father grabbed her and pushed her onto a bed causing her to hit her head and back on the wooden bedframe. During the altercation the mother’s older son came into the room with a wooden spear. The mother deposes to the father taking the spear from the child and breaking it before leaving the room. The child then came to the aid of the mother. According to documents produced on subpoena tendered by the ICL the mother went to the local hospital and reported to the medical practitioners who treated her that she had sustained the injury while pillow fighting with the father.

4. On her return from hospital the mother alleges that she had a discussion about ending the relationship with the father. However, when she printed a divorce application she alleges the father became angry and aggressive towards her, swearing and yelling at the mother and damaging a door and his computer.

5. The mother alleges that throughout the relationship the father often demanded that she have sex with him and was forceful and rough with the mother during sex. On one such occasion in November 2011, when the mother was 16 weeks pregnant, she alleges that the father had rough sex with her and refused to stop when she asked him to. Following this incident the mother experienced bleeding and was concerned she may be experiencing a miscarriage so attended the hospital the next day.

6. The parties’ child (“the child”) was born in 2012.

7. The mother alleges that the father used excessive and forceful discipline with her older child. She also deposes to witnessing the father hit his two children from a previous relationship with a belt and also witnessing him do the same to her older child, leaving the child with bruising on his buttocks.  

8. At a time when the mother was breast-feeding the child she deposes to an incident in which the father yelled at her, grabbed her around the neck and dragged her to another part of the house while she was holding the child. The father then took the child from her and lifted the child into the air as if he were going to throw him.

9. Around the same time as the last mentioned incident the mother alleges that there was an occasion when the father yelled at her in the course of an argument and told her that he wanted to kill her in front of both of the mother’s children.

10. In March 2014 the parents separated on a final basis when the mother left the former family home with her children and moved in with her sister. The mother deposes to the father coming to her sister’s house and demanding to see the mother. The police were called and subsequently, after the mother disclosed that she had been the victim of violence (but declined to make a formal statement), the police made an application for an ADVO to protect her against the father.

11. A final ADVO was made against the father for the mother’s protection on 31 March 2014.

12. In April 2014 the mother began seeing a psychologist to assist her with the trauma she had experienced in the relationship.

13. On 10 April 2014 when the child was almost two, the parents entered into a parenting plan that provided for the child to live with the mother and spend time with the father each Tuesday and Thursday afternoon and each alternate Sunday. The parties agreed to review the arrangements after three months.

14. On 17 July 2014 the parents entered into a further parenting plan that provided that the child continue to live with the mother and that he spend time with the father each Tuesday afternoon and alternate Sundays. The plan was to be reviewed again in 12 months.

15. Between February and May 2015 the mother deposes to the child disclosing to her on a number of occasions that his father hit him.

16. In April 2015 the mother alleges that while bathing the child he played with his testicles and rubbed his penis up and down saying “Dad touches it”. The Department of Family and Community Services (“the Department”) subsequently received a report regarding the child’s sexualised behaviour and the father’s alleged physical abuse of the child. The matter was referred to the Joint Investigative Response Team[1] (“JIRT”) but was rejected for further investigation by JIRT due to a lack of detail. 

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

17. On 2 June 2015 the child told the mother that he had defecated in his pants at his father’s house and the father had given him a bath which he didn’t like. The mother took the child to the toilet and the child squeezed his penis and said “Dad does this”. The mother ceased the father’s time with the child from this date.

18. A few days later the mother spoke to the child’s teacher who she alleges told her that the child had been playing with a doll and had removed the clothes of the doll and poked his finger on the bottom part of the doll.

19. The mother subsequently reported the child’s disclosures to police.

20. The mother alleges the child continued to make disclosures and exhibit sexualised behaviour. Further reports were made to the Department regarding possible physical and sexual abuse of the child. On 15 June 2017 the matter was again referred to JIRT following a report that the child had disclosed that “Dad touches my penis”. JIRT rejected the referral as given the child’s age his disclosures did not meet the criteria required for further investigation by JIRT. All further reports were closed on the basis of either competing priorities or the Department determining that the mother was acting protectively and had been able to reduce the child’s time with the father.  

21. In July 2015 the parents reviewed the parenting plan entered into in July 2014 and the father agreed to spend supervised time with the child at a contact centre. A few months later the mother agreed to the father spending supervised time with the child outside of the contact centre however this arrangement did not eventuate.

22. In October 2015 the mother was admitted to hospital suffering hallucinations as a result of an adverse reaction to an anti-depressant drug she had commenced taking.    

23. In early 2016 the contact centre declined to supervise the father’s time with the child following their intake procedures.

24. The father subsequently commenced proceedings in the Federal Circuit Court by way of Initiating Application filed 9 February 2016. 

25. On 3 May 2016 orders were made by consent for the child to live with the mother and spend supervised time with the father. Further orders were made appointing an ICL and transferring the matter to this Court.

26. The matter was allocated to the Magellan Program and a Magellan Report was ordered.[2]

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

27. As a consequence of a Magellan Report being ordered the Department undertook further assessment of the family. In that assessment the Department were not able to substantiate the allegations of sexual harm of the child but substantiated allegations that both the child and the mother’s older child were at risk of significant physical and psychological harm from the father due to domestic violence and exposure to domestic violence.

28. On 5 September 2016 a child and adolescent psychiatrist was appointed as a Single Expert (“the Expert”) in the proceedings. The Report produced by that Expert dated 28 April 2017 was released to the parties on 5 May 2017.

29. On 15 June 2017 trial directions were made.

30. When the parties came before a Registrar in August 2017 the father’s applications to send further evidence to the Expert and to have the Magellan Report writer attend court for cross examination were refused and the matter was listed for final hearing in December 2017.

31. On 14 November 2017 the father filed a Notice of Discontinuance in the proceedings.

32. On 24 November 2017 there was no appearance by or on behalf of the father and the proceedings were listed for undefended hearing.

33. On 18 December 2017 there was again no appearance by the father. The mother and the ICL sought that the Court proceed to deal with the matter to finality in the absence of the father.

34. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

    (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.

35. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[3], and to the principles for the conduct of child-related proceedings[4], in my view, it is in the best interests of the child for the proceedings to be finalised and dealt with in the absence of the father.

    [3] [2014] FamCAFC 14

    [4] Set out in s 69ZN of the Family Law Act 1975 (Cth).

36. Orders were made with the consent of the ICL and the mother on 18 December 2017 as outlined earlier in these Reasons. Some additional orders providing specifically for telephone communication and the sending of cards and gifts on the child’s birthday and at Christmas were sought by the mother.  

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that 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.

3. The principles underlying these objects 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).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

Benefit to the child in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   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”.

   [5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [6] (2007) Fam LR 518

   [7] [2006] FamCA 994

2. The Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

3. The Full Court in McCall & Clark (supra) continued at [122]:

   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 also 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.

4. The mother has been the child’s primary carer for his entire life. The Expert, in her report dated 28 April 2017, observed that the child was talkative, laughing and smiling when seen with his mother and the Expert was of the opinion that he has a strong and secure attachment to her. It is clear the child has a meaningful relationship with his mother and it is important that this relationship continue. 

5. The Expert also observed that the child was talkative, laughing and smiling with the father and was of the opinion that separation from the father would cause the child emotional and psychological harm. However, the expert’s observation of the child with his father in January 2017 is the only occasion the child has spent time with the father since July 2015. Further and of significance the father discontinued his application in November 2017 and no longer seeks orders that he spend time with the child. He can be taken in doing so to accept that the child will not receive a benefit in having a meaningful relationship with him in the future.  

1. I also accept the submission made on the mother’s behalf that the Expert’s report should be given little weight concerning this matter as the Expert relied on material which is not before the Court in light of the father discontinuing his application.   

2. The benefit to the child of having a meaningful relationship with the father must also be considered in the context of the risks of harm posed to the child in the father’s care.  

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

1. This primary consideration takes precedence over any benefit to the child in having a meaningful relationship with both his parents. 

2. The mother alleges that there is an unacceptable risk that the father may physically and sexually abuse the child and that the child will be psychologically harmed as a result. The mother also contends that the child has been exposed to the father perpetrating family violence against her during the relationship.

3. In M v M[8] the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….

   In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [8] (1988) 166 CLR 69; [1988] HCA 68

4. In M v M (supra), the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

5. In Johnson & Page[9]  the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [9] [2007] FamCA 1235 at [72]

6. The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[10] and will be applied when determining the allegations issue of physical abuse and family violence in this matter.

   [10] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).

7. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk.  One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[11], where the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [11] (2005) FLC 93–235.

8. As noted previously, JIRT declined to investigate the allegations that the father may have sexually abused the child due to a lack of detailed information to indicate that a sexual assault had taken place given the child’s age. Subsequent notifications to the Department regarding possible sexual abuse of the child were also not pursued by the Department on the basis that the mother was acting protectively of the child at that time and was able to limit the child’s time with the father.

9. The following assessment of the allegations of sexual abuse are reported in the Magellan Report:

   The allegations around risk of sexual harm to the children was unable to be substantiated at the current time however we note that this does not preclude the possibility that sexual harm has in fact occurred. [The child] did not indicate injury to his penis and bottom on the body chart and named his ‘Daddy’ as the person who ‘hurt’ him. However [the child] was unwilling to discuss this in any detail and therefore no clear disclosure and or further contextual information was able to be obtained around the sexual harm allegations. [The mother’s older child] declined to talk about any information relating to sexual harm, he became upset and tears ran down his face. 

10. Further, the Expert assessed that the father was at low risk for sexual offending, noting that there is not a “no risk” category, and was of the opinion that the child should spend time with the father.

11. Given the Department did not substantiate allegations of sexual abuse and the lack of other objective evidence supporting the mother’s allegations of sexual abuse I do not make any positive findings that sexual abuse occurred. Further, I am not satisfied that there is an unacceptable risk that the father may sexually abuse the child when spending time with him.

12. However, although not satisfied about sexual abuse the Department did consider that the child and the mother’s older child were at risk of significant physical and psychological harm from the father due to his violence towards them and their exposure to the father perpetrating family violence against the mother.

13. The risk posed by the father to the children is contained in the Magellan Report as follows:

    [The Department’s] findings were that the family had experienced significant and prolonged exposure to violence in the home perpetrated by [the father]. The child/ren themselves had experienced ongoing exposure to the domestic violence perpetrated on [the mother] by [the father] and had also experienced significant domestic violence, physical harm and injury perpetrated on their own persons by [the father]. The information derived from the assessment was detailed and rich in contextual information and provided a clear picture of a deeply traumatic, frightening, unpredictable and chaotic day to day life the children were experiencing prior to the parents separation. [The mother’s older child] was home schooled and [the child] not attending any form of preschool or day care so both children were isolated and especially vulnerable. [The mother] was not protective during the relationship when at times she became aware of the injury to the child/ren and then did not seek medical assistance nor report these injuries.

    Psychological harm was substantiated. Concerns are held for both children’s psychological wellbeing relating to their experience of trauma in the home; … [The mother’s older child] in particular requires long term intensive therapy to assist him to deal with his emotions around his experience of trauma and his subsequent feelings of shame, anger and fear that he struggles to cope with. [The mother’s older child] has expressed fears that [the father] may return and hurt the family.

14. In the Magellan Report the Department also makes reference to receiving a report regarding possible physical abuse by the father of his children from a previous relationship. The report indicated that one of the father’s other children had been hit by the father and there had been a variety of incidents going back to 2009 in which the father had physically harmed his children and had perpetrated family violence against his ex-partner. As the matter proceeded on an undefended basis these allegations are not contested.

15. Many of the mother’s allegations, including the incidents of May 2011 and March 2014 outlined above, are supported by documents produced on subpoena including police records and hospital records that include similar accounts given to those agencies at the time of the alleged incidents of aggression or violence perpetrated by the father as the accounts in her affidavit.

16. Given the mother’s uncontradicted accounts of the father’s violence and the support for her allegations contained in documents produced on subpoena, I am satisfied that the father perpetrated family violence against the mother and the children.

17. In light of the lack of alternate explanation provided by the father given his discontinuance of his application, the severity of the impact on the child if he were to be exposed to further family violence, I am satisfied that there is an unacceptable risk that the father may physically harm the child or expose the child to family violence were the child to spend unsupervised time with the father.  

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

Nature of the child’s relationship with each parent and other significant persons

1. The child is too young to have expressed any views to the Expert. The expert was of the opinion that the child had a strong and positive relationship with his parents, his half siblings and his paternal grandparents and the severing of any of these relationships would be emotionally and psychologically harmful for the child.

2. However, as previously stated considerations as to the child’s relationships are secondary to the need to protect the child from the unacceptable risk of harm posed to him by the father.  

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. It is clear that the mother has been the child’s primary carer since birth. She has at all times fulfilled her obligation to maintain the child with limited support from the father.  

2. The parents separated when the child was less than two years of age and since separation the father spent time with the child on an inconsistent basis and has spent no time with the child since July 2015. The father previously had semi-regular telephone and skype contact with the child although the mother deposes that the child has been reluctant to engage with the father in this way in recent times.

3. The father’s discontinuance of the proceedings is a very weighty factor in this matter. In discontinuing his application the father can be taken to be forfeiting the opportunity to seek orders that may see him participate in long term decision making for the child and to spend time with the child in the future.  

Likely effect of change in the child’s circumstances

Practical difficulty and expense involved in spending time with and communicating with the other parent

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. Given the child currently lives with the mother and spends no time with the father, the orders sought by the mother would not change the child’s circumstances. Nor would there be any practical difficulty or expense associated with the implementation of these orders.

2. The mother seeks orders that the current telephone communication the child has with the father continue at her discretion.

3. Given the father has discontinued his application for orders, if orders are made as sought by the mother it is likely to bring finality to the proceedings.

Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs

Attitude to the child and responsibilities of parenthood demonstrated by each parent

Family violence including any family violence orders relating to the child or a member of the child’s family

1. The father’s perpetration of family violence against the mother and the children has been discussed at length earlier in these Reasons. His violence against the mother and the child demonstrates a poor attitude on his part to the responsibilities of parenthood and raises serious questions about his capacity to provide for the child’s needs.

2. As outlined earlier in these Reasons, particularly by way of the Magellan Report, the mother’s capacity to act protectively of the child and provide for his needs was poor during her relationship with the father. However, since separation the mother has demonstrated improved parenting capacity. The Department made the following comments about the mother’s ability to provide for the needs of the children in the Magellan Report: 

   Concerns are held for both children’s psychological wellbeing relating to their experience of trauma in the home; however this currently appears to be adequately addressed by appropriate services that were initiated by the mother of her own accord prior to involvement by [the Department]. These services are counselling for [the mother’s older child] and [the mother] and play therapy for [the child]. It is recommended these measures continue.

3. No concerns are currently held as to the mother’s parenting capacity.

Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent

1. The parents met through a Church of the Christian faith. The mother is still involved in her local Church, which she deposes has provided her with significant assistance, and intends to raise the child in the Christian faith. The child attends church with the mother each week and this will continue if orders are made as sought by her.

Any other relevant fact or circumstance  

1. As has been noted earlier in these Reasons, there is evidence before the Court that the father may have been physically violent towards his children of a previous relationship.

2. The mother deposes to witnessing the father hit his two children from a previous relationship and her older son with his hands and a belt. Documents produced on subpoena and tendered in the proceedings include documents from therapy services attended by the mother and the child and the mother’s older child. It is recorded in notes from the therapist who saw the mother detailing that she sought to protect the child from the father on the basis that she had seen him yell and hit one of his other children across the head because he couldn’t swallow a tablet given to him by the father. Those notes also make reference to the mother witnessing the father smacking her older child and the older child later telling her that the father had hit him with a belt, including with the metal buckle of the belt.

3. Records from the Department produced on subpoena include information that a risk of harm report was made to the Department in July 2015 regarding the safety of the child due to the father’s physical discipline (hitting) of his older children from a previous relationship.

4. This information, while not directly relevant to the subject child, indicates a concerning pattern of violent behaviour by the father towards his children and contributes to the finding made that he poses an unacceptable risk of harm to the child on the basis of family violence.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

3. Both the mother and the ICL seek that the mother have sole parental responsibility for the child.

4. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.

5. Given the father has discontinued his application, the only proposal before the court is for the mother to have sole parental responsibility for the child. In circumstances where I have found the father has perpetrated family violence against the mother and children and poses an unacceptable risk of physical abuse to the child, I am easily satisfied that it is in the child’s best interest for the mother to have sole parental responsibility for him.

Conclusion

1. Having regard to all of the factors in relation to the best interests of the child I make orders in accordance with the orders sought by the mother in her Case Outline document dated 12 December 2017. These orders provide for the child to spend no time with the father but to have telephone contact with him at the discretion of the mother. In my view these orders balance the need to protect the child from the risk of harm posed to him by the father but provide a small mechanism for the mother to permit the child having some sort of a relationship with his father if the mother deems it appropriate.

2. However, I do not regard the specific proposed orders for contact, by way of telephone or gifts and cards, on the child’s birthday or at Christmas as proper given that an order will be made for the father to have telephone contact with the child at the sole discretion of the mother.

3. Accordingly, the orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 April 2018.

Legal Associate: 

Date:  12 April 2016